Present: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ., 

and Carrico and Russell, S.JJ. 

WILLIAM S. SMALLWOOD 

v. Record No. 082228 OPINION BY JUSTICE DONALD W. LEMONS 

 November 5, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Following a bench trial upon an indictment charging 

possession of a firearm after having been convicted of a 

felony in violation of Code § 18.2-308.2, William S. Smallwood 

(“Smallwood”) was convicted and sentenced to five years’ 

imprisonment with three years suspended. In this appeal, we 

consider whether the Commonwealth presented sufficient 

evidence to support Smallwood’s conviction. 

I. FACTS AND PROCEEDINGS BELOW 

 On or about July 27, 2007, Smallwood was driving a 

vehicle in Cumberland County, accompanied in the front 

passenger seat by Crystal B. Barnett (“Barnett”). At 

approximately one o’clock in the morning, the vehicle was 

stopped pursuant to a “road check.” Deputy Sheriff James F. 

Lampkin (“Deputy Lampkin”) testified that he approached the 

vehicle and “smelled a strong odor of alcohol coming from the 

vehicle.” Deputy Lampkin had Smallwood pull over to the side 

of the road for further investigation. Deputy Lampkin 
determined that Barnett was the one that had been drinking 

alcohol, and not Smallwood. 

 Deputy Sheriff Michael Boggs (“Deputy Boggs”) approached 

the rear of the vehicle “for safety reasons.” Deputy Boggs 

testified that he “shined [his] flashlight, and inside [he] 

saw a weapon that was in the console.” It “[s]eemed to be a 

.38 revolver.” Deputy Boggs described the vehicle as “small” 

and he testified that the “weapon was . . . right there in 

plain view.” After Deputy Boggs alerted Deputy Lampkin to the 

weapon’s presence, Deputy Lampkin “got the weapon out, [and] 

put it on top of the car.” Deputy Lampkin described the 

weapon as a “small .38 silver revolver.” 

 Deputy Lampkin testified that the weapon was “in the 

console, between the console right beside [Smallwood’s] right 

leg.” He further described the vehicle as “small” and the 

gun’s location as “an open console between the seats where you 

could just lay something, like a little section. It was small 

in between two bucket seats.” The firearm was not concealed. 

 At the scene, Deputy Lampkin asked Smallwood about the 

firearm. Deputy Lampkin testified that: 

[Smallwood] told me that he thought it was 

fine. The gun was [Barnett’s] gun . . . and he 

thought it was fine as long as she was in the 

car, with the car; that it was her 

responsibility to have the gun with her; that 

it wouldn’t fall on him. 

2
 Following the deputies’ testimony, the Commonwealth 

introduced evidence of Smallwood’s two previous felony 

convictions. The Commonwealth then rested its case and 

Smallwood moved to strike the evidence, arguing that the 

Commonwealth, in its proof of constructive possession, failed 

to show that Smallwood “actually had dominion and control over 

the weapon.” The trial court denied the motion to strike, 

stating that “[w]hat the law requires is for a prima facie case 

he was aware of the presence and the character of the firearm 

and that it was subject to his dominion and control. It 

doesn’t have to be exclusive possession.” 

 Barnett then testified that she owned both the car and the 

firearm. Barnett and Smallwood had been in the car “[p]robably 

around six, seven hours” and “[i]n that period of time the gun 

was in the console in plain view on the console that entire 

time.” Barnett testified that she had placed the firearm in 

the console. During their time in the vehicle, Barnett and 

Smallwood made stops and had gotten in and out of the vehicle. 

 She testified that she had been drinking that evening and 

that was the reason why Smallwood was driving. She testified 

that she did not tell Smallwood about the firearm and he did 

not “ever use it or touch it . . . in any way.” The firearm 

was “in the console and it stayed there the whole time.” 

3
 Barnett testified that she normally kept the firearm in 

plain view on the console because she had applied for a 

concealed weapon permit but had not received one. She 

testified that she has “always carried [the firearm] after 

[she] got assaulted.” At the conclusion of Barnett’s 

testimony, the defense rested and renewed its motion to strike. 

The trial court again denied the motion. 

 The trial court found Smallwood guilty of felony 

possession of a firearm after having been convicted of a felony 

in violation of Code § 18.2-308.2 and sentenced him to five 

years’ imprisonment with three years suspended. Smallwood 

timely filed his notice of appeal. The Court of Appeals, per 

curiam, denied his petition for appeal. Smallwood timely filed 

his notice of appeal to this Court and we awarded an appeal on 

the following assignment of error: 

It was error for the Court of Appeals to fail 

to overturn the trial court ruling and the 

trial court erred in ruling that there was 

sufficient evidence to convict the defendant of 

one count of felony possession of a firearm 

after having been previously convicted of a 

felony. 

II. ANALYSIS 

A. Standard of Review 

 “Under well-settled principles of appellate review, we 

consider the evidence presented at trial in the light most 

favorable to the Commonwealth, the prevailing party below.” 

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Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 

(2008). “We also accord the Commonwealth the benefit of all 

inferences fairly deducible from the evidence.” Riner v. 

Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). 

“When reviewing the sufficiency of the evidence to support a 

conviction, the Court will affirm the judgment unless the 

judgment is plainly wrong or without evidence to support it.” 

Bolden, 275 Va. at 148, 654 S.E.2d at 586. 

B. Constructive possession 

 In this appeal we consider whether the evidence was 

sufficient to convict Smallwood under Code § 18.2-308.2. 

Smallwood argues that the “Commonwealth has only proven that 

Mr. Smallwood knew of the weapon’s presence and not that he 

exercised dominion and control over the firearm.” However, 

Smallwood misapprehends established principles of constructive 

possession. 

 Code § 18.2-308.2 provides in relevant part that “[i]t 

shall be unlawful for . . . any person who has been convicted 

of a felony . . . to knowingly and intentionally possess . . . 

any firearm.” We first held that constructive — rather than 

actual — possession of contraband was sufficient to obtain a 

criminal conviction in Ritter v. Commonwealth, 210 Va. 732, 

741, 173 S.E.2d 799, 806 (1970). Ritter involved the delivery 

to a mailbox “used by defendant and other members of his 

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family” of a package containing marijuana, the contents of 

which Ritter identified after the package was presented to 

him. Id. “When asked if the marijuana were his, Ritter 

responded: ‘It must be mine, it’s got my name on it.’ ” Id.

at 742, 173 S.E.2d at 806. 

 In Ritter, the Court outlined the guiding principles of 

the doctrine of constructive possession. First, the Court 

noted that “it generally is necessary to show that [the] 

defendant was aware of the presence and character of the 

particular substance.” Id. at 741, 173 S.E.2d at 805. Next, 

the Court noted that possession may be joint: “the possession 

need not always be exclusive. The defendant may share it with 

one or more.” Id., 173 S.E.2d at 806. Finally, the Court 

held that “[t]he defendant may be shown to have had 

constructive possession by establishing that the drugs 

involved were subject to his dominion and control.” Id.

 We cautioned that “the issue [of what constitutes 

constructive possession] is largely a factual one and must be 

established by evidence of the acts, declarations and conduct 

of the accused.” Id. at 743, 173 S.E.2d at 807. We held that 

“[w]hen [the package containing marijuana was] delivered by 

the postal authorities and deposited in the mailbox under the 

joint use and control of defendant and his family, it had 

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reached its destination, and defendant was then in 

constructive possession.” Id. at 742, 173 S.E.2d at 807. 

 Much more recently, in Bolden we affirmed the principles 

of constructive possession announced in Ritter. 

A conviction for the unlawful possession of a 

firearm can be supported exclusively by evidence 

of constructive possession; evidence of actual 

possession is not necessary. To establish 

constructive possession of the firearm by a 

defendant, the Commonwealth must present evidence 

of acts, statements, or conduct by the defendant 

or other facts and circumstances proving that the 

defendant was aware of the presence and character 

of the firearm and that the firearm was subject 

to his dominion and control. While the 

Commonwealth does not meet its burden of proof 

simply by showing the defendant’s proximity to 

the firearm, it is a circumstance probative of 

possession and may be considered as a factor in 

determining whether the defendant possessed the 

firearm. 

Bolden, 275 Va. at 148, 654 S.E.2d at 586 (citations and 

quotations omitted). 

 When these principles are applied to the present case, it 

is clear there was sufficient evidence to support Smallwood’s 

conviction. Smallwood’s own statements establish that he was 

aware of the presence and character of the firearm. And even 

without his admission, it strains credulity that someone 

entering and exiting a small vehicle over a period of six or 

seven hours would fail to notice a “small .38 silver revolver” 

that was “in plain view.” 

7
 Smallwood argues that he “could not have exercised 

dominion and control over the gun when the gun was under the 

dominion and control of Ms. Barnett at all times.” Further, 

Smallwood argues that “Barnett’s testimony excludes the 

possibility of joint possession” because “Smallwood never 

touched or manipulated the weapon in any way.” 

 As we noted in Ritter, the issue of constructive 

possession “is largely a factual one and must be established 

by evidence of the acts, declarations and conduct of the 

accused.” 210 Va. at 743, 173 S.E.2d at 807. According the 

Commonwealth the benefit of all inferences fairly deducible 

from the evidence, Bolden, 275 Va. at 148, 654 S.E.2d at 586, 

the record clearly supports the finding that the firearm in 

Barnett’s car was “subject to” Smallwood’s dominion and 

control. 

 Both deputies described the vehicle as small. Barnett 

acknowledged that the firearm was “in plain view” during the 

entire six or seven hours in which she and Smallwood occupied 

the vehicle. The firearm rested on an open console “right 

beside [Smallwood’s] right leg.” In an instant, Smallwood 

could have had actual, exclusive possession of the firearm and 

Smallwood’s access to the firearm was not restricted in any 

way. 

8
 While Barnett’s ownership of the firearm is relevant to 

the inquiry, it is not dispositive. “Possession and not 

ownership is the vital issue. Possession may be joint or 

several. Two or more persons may be in possession where each 

has the power of control and intends to exercise control 

jointly.” Burnette v. Commonwealth, 194 Va. 785, 792, 75 

S.E.2d 482, 487 (1953). 

 For the same reasons, Smallwood’s argument that the 

Commonwealth failed to exclude “all reasonable hypotheses of 

innocence” must fail. “The statement that circumstantial 

evidence must exclude every reasonable theory of innocence is 

simply another way of stating that the Commonwealth has the 

burden of proof beyond a reasonable doubt.” Commonwealth v. 

Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). 

 In a joint constructive possession case, the focus is on 

the “acts, statements, or conduct by the defendant or other 

facts and circumstances proving that the defendant was aware 

of the presence and character of the firearm and that the 

firearm was subject to his dominion and control.” Bolden, 275 

Va. at 148, 654 S.E.2d 586 (emphasis added). As in Bolden, 

here the contraband was “open and obvious to someone looking 

in the vehicle, and it was located in immediate proximity to 

where [the defendant] had been sitting.” Id. at 149, 654 

S.E.2d at 586. 

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III. CONCLUSION 

 Accordingly, we hold that the evidence was sufficient to 

support Smallwood’s conviction under Code § 18.2-308.2 and we 

will affirm the judgment of the Court of Appeals. 

Affirmed.

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