COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Hodges 

Argued at Richmond, Virginia 

BERNARD E. SAMUELS, S/K/A 

 BERNARD EVERETT SAMUELS 

v. Record No. 1364-94-2 MEMORANDUM OPINION* BY 

 JUDGE WILLIAM H. HODGES 

COMMONWEALTH OF VIRGINIA AUGUST 1, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Cary B. Bowen (Bowen and Bowen, on brief), for 

 appellant. 

 Marla Lynn Graff, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 In a bench trial, appellant was convicted of simultaneously 

possessing cocaine and a firearm in violation of Code 

§ 18.2-308.4. On appeal, he argues that the evidence was 

insufficient to support his conviction. We disagree and affirm. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 On January 15, 1994, the police executed a search warrant at 

appellant's residence. Appellant was in the living room at the 

time. In appellant's pocket, the police found a folded one 

dollar bill and a tied plastic bag corner, both of which 

contained cocaine. A smoking device and a bag containing cocaine 

 

 *Pursuant to Code § 17-116.010, this opinion is not 

designated for publication. 
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were on the floor near appellant. Also near appellant on the 

floor was a nine millimeter firearm. 

 After the police arrested appellant and informed him he was 

being charged with possessing cocaine and the firearm, appellant 

said, "I have a gun; but that's not -- that one there is not 

mine. . . . [T]he shotgun -- the long shotgun in the closet is 

mine." The police recovered a shotgun from the closet in one of 

the bedrooms down the hallway from the living room. 

 At trial, the Commonwealth proceeded under the theory that 

appellant possessed the shotgun, not the nine millimeter firearm 

found near him. Appellant concedes that he owned the shotgun and 

that he possessed cocaine.1

 He argues, however, that the 

Commonwealth did not show that he knowingly and simultaneously 

possessed the shotgun and the cocaine as contemplated by Code 

§ 18.2-308.4. 

 Pursuant to Code § 18.2-308.4, any person who unlawfully 

possesses cocaine and "simultaneously with knowledge and intent 

possesses any firearm" is guilty of a felony. We found in 

Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414 S.E.2d 860, 

862 (1992), that "actual possession of both the firearm and the 

controlled substance is not required by the wording of Code 

§ 18.2-308.4. Constructive possession of either or both is 

sufficient for conviction." Moreover, to sustain a conviction 

 

 1Appellant, in fact, entered a guilty plea upon a charge of 

cocaine possession arising from the same facts. His subsequent 

conviction of the offense has not been challenged on appeal. 
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under Code § 18.2-308.4, "[t]he Commonwealth need not prove that 

[the defendant] had ready access to either the gun or the cocaine 

to establish 'simultaneous possession.'" Jefferson, 14 Va. App. 

at 81, 414 S.E.2d at 862. 

 As appellant concedes, the evidence proved that he possessed 

cocaine when the police searched his home. Thus, to sustain 

appellant's conviction, the Commonwealth need only have proven 

that appellant simultaneously had constructive possession of the 

shotgun in the closet. 

 "Constructive possession may be established by 'evidence of 

acts, statements, or conduct of the accused or other facts or 

circumstances which tend to show that the defendant was aware of 

both the presence and the character of the substance and that it 

was subject to his dominion and control.'" Logan v. 

Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) 

(en banc) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 

S.E.2d 739, 740 (1984)). In determining whether constructive 

possession of an item has been established, the ownership of the 

premises where the item was found is a factor "that may be 

considered together with other evidence tending to prove that the 

owner . . . exercised dominion and control over" the item. 

Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 

83 (1992). 

 Appellant was present when the police conducted the search 

of his home. Appellant denied ownership of the firearm found 

near him, but told the police he owned the shotgun in the closet. 
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 This statement revealed not only that appellant knew generally 

of the presence of firearms in his house, but also that he knew 

where his own firearm was located at that particular moment. The 

police found the shotgun in a bedroom closet, just down the 

hallway from appellant and as he described. From this evidence, 

the trial judge could have concluded beyond a reasonable doubt 

that appellant was aware of the presence and character of the 

firearm, that it was subject to his dominion and control, and 

that he constructively possessed it at a time when he also 

possessed cocaine. See Davis v. Commonwealth, 12 Va. App. 728, 

733, 406 S.E.2d 922, 924-25 (1991) (evidence sufficient to 

support finding of constructive possession of marijuana where 

defendant told police officers searching his house that marijuana 

was in the basement, and officers found marijuana there). 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.