COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Haley Argued at Chesapeake, Virginia

ALDESHAWN GADSDEN MEMORANDUM OPINION * BY v. Record No. 2077-04-1 JUDGE LARRY G. ELDER NOVEMBER 15, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge J. Barry McCracken for appellant. Donald E. Jeffrey, III, Assistan t Attorney General (Judith Williams Jagdmann, Attorney General; Steven A. Witmer, Assistant Attorney General, on brief), for appellee.
Aldeshawn Gadsden (appellant) appeals from his bench trial convict ion for possession of a firearm by a convicted felon. On appeal, he contends the evidence was insufficient to prove he constructively possessed the weapon found beneath the floor mat of the seat of the vehicle in which he was riding. We agree. Thus, we re verse his conviction and dismiss the indictment. Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it al l reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). “Circumstantial evidence is as co mpetent and is entitled to as mu ch weight as direct evidence, provided it is sufficiently convincing to exclud e every reasonable hypothesis except that of guilt.” Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). “[T]he Commonwealth need only exclud e reasonable hypotheses of i nnocence that flow from the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - evidence, not those that spring from the im agination of the defendant.” Hamilton v. Commonwealth , 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). To support a conviction based upon construc tive possession, “the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was awar e of both the presence and character of the substance and that it was subj ect to his dominion and cont rol.” Powers v. Commonwealth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). Possession “n eed not always be exclusive. The defendant may share it with one or more.” Josephs v. Commonwealth , 10 Va. App. 87, 89, 390 S.E.2d 491, 497 (1990) (en banc). However, mere proximity to a controlled item, such as a gun or narcotics, is not legally su fficient by itself to establish dom inion and control. Wright v. Commonwealth , 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977); Fogg v. Commonwealth , 216 Va. 394, 395, 219 S.E.2d 672, 673 (1975). For example, proof that illegal narcotics were “found in [the] premises or a vehicle owned or occupied by the [accused] is insufficient, standing alone, to prove constructive possession.” Powers , 227 Va. at 476, 316 S.E.2d at 740. Appellant contends no evidence indicated he knowingly and intelligently exercised dominion and control over the w eapon. We agree that the evidence was insufficient to prove appellant possessed the weapon found ben eath the front passenger’s floor mat. We find the holding in Hancock v. Commonwealth , 21 Va. App. 466, 465 S.E.2d 138 (1995), is controlling. The defendant in Hancock was seated behind the driv er in the backseat of a car stopped by police. Id. at 468, 465 S.E.2d at 139. A total of four people were in the car. Id. After Hancock exited the vehicle, the police noticed a gun on the floorboa rd under the driver’s seat. Id. The officer testified he could not see the gun until Hancock stepped out of the car because “‘his feet were on top of it.’” Id. Additionally, the car was stopped at night, so the- 3 - lighting precluded a clear view of the gun. Id. at 472, 465 S.E.2d at 141. We reversed Hancock’s conviction, noting: No evidence established that Hancoc k ever held the firearm, saw it, knew it was present, or exercised an y dominion and control over it. See Powers , 227 Va. at 476, 316 S.E.2d at 740. The facts established no more than a mere suspicion that the firearm was possessed by Hancock or that he knew the firearm was under the driver’s seat. The evidence must rise beyond “the realm of probability and supposition.” Hall v. Commonwealth , 225 Va. 533, 537, 303 S.E.2d 903, 905 (1983). “‘Circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a [guilty] verdict . . . beyond a reasonable doubt.’” Crisman [v. Commonwealth ], 197 Va. [17,] 21, 87 S.E.2d [796,] 799 [(1955)] (quoting Powers v. Commonwealth , 182 Va. 669, 676, 30 S.E.2d 22, 25 (1944)). Proof that the firearm was located close to Hancock was not sufficient to prove the elements of the offense beyond a reasonable doubt. See Jones v. Commonwealth , 17 Va. App. [572,] 572-74, 439 S.E.2d 863, 864 (1994). Id. at 472, 465 S.E.2d at 141-42. Similarly in appellant’s case, the Commonw ealth presented no evidence that appellant knew the weapon was hidden beneath the floor mat of the seat in which he was riding. It is uncontroverted that the gun was hidden from si ght. Both officers testified the gun was not visible beneath the floor mat, a nd Officer Johnson testified he was unable to see even the bulge in the floor mat until he shined his flashlight directly on it. Although Officer Woltemath opined the bulge was located directly beneath the spot on which appellant would have placed his feet, Officer Woltemath admitted he did not see where appellant’s feet were located as appellant sat in the vehicle. The record also contained no eviden ce regarding how long appe llant had been in the vehicle prior to the stop, whether it was light when he had entere d, whether the vehicle’s interior lights were operational, or whethe r they would have illuminated th e bulge even if they had been operational. Further, in Hancock , despite the fact th at the evidence affirmatively showed the defendant’s “‘feet were on top of [the weapon],’” we held th e evidence “established no more- 4 - than a mere suspicion” that “he knew the firearm was” beneath his feet or that he constructively possessed it. Id. at 472, 465 S.E.2d at 141. Even assuming, as the trial court did, th at appellant knew “something” was under the mat, the evidence is insufficient to prove he knew it was a firearm or that it was subject to his dominion and control. Here, as in Hancock , the evidence provided no indication that appellant made any furtive gestures towa rd the firearm or engaged in any acts, statements, or conduct indicating he exercised dominion an d control over the firearm. Th e record contains no forensic evidence indicating appellant had prior contact w ith the gun or the ammunition with which it was loaded. Further, the statements of the driver do not prove the firearm under the passenger’s mat belonged to appellant. The driver’s statement th at there was “a gun” rather than “guns” in the car, coupled with the fact that the officers found “a gun” on the driver’s side of the car, where the driver said it would be, suppor ts a finding that the gun beneath the mat on the driver’s side belonged to the driver and that the gun beneath the mat on the pa ssenger’s side did not belong to the driver. However, that fact creates no more than a suspicion that the gun found beneath the mat on the passenger’s side belonged to appellant. Thus, the evidence proved only that appellant was an occupant of a vehicle and in close proximity to the hidden revolver. This circumst antial evidence is legally insufficient to prove possession. See Powers , 227 Va. at 476, 316 S.E.2d at 740; Hancock , 21 Va. App. at 472, 465 S.E.2d at 141-42; see also Myers v. Commonwealth , 43 Va. App. 113, 121-23, 596 S.E.2d 536, 540 (2004) (applying Hancock to reverse conviction for passe nger’s constructive possession of firearm secreted on passenger’s floorboard inside blanket).- 5 - For these reasons, we hold the evidence was in sufficient to prove appellant constructively possessed the weapon found beneath th e floor mat of the seat of the vehicle in which he was riding. Thus, we reverse his conv iction and dismiss the indictment. Reversed and dismissed.