COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Chafin Argued at Chesapeake, Virginia

MALCOLM J. BROWN MEMORANDUM OPINION * BY v. Record No. 0353-13-1 JUDGE ROBERT P. FRANK APRIL 1, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Mar tin, Jr., Judge J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant. Aaron J. Campbell, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Malcolm J. Brown, appellant, was convicted, in a bench trial, of poss essing a firearm after having been convicted of a felony , in violation of Code § 18.2-308. 2. On appeal, he contends the evidence was insufficient to prove: (1) the “han dgun” was a firearm with in the meaning of the statute and; (2) he was in either actual or constr uctive possession of the a lleged firearm. For the reasons stated, we affirm the judgment of the trial court. BACKGROUND Around 3:50 a.m. on May 29, 2012, Officer John A. Tolson, Jr., of the Norfolk Police Department, responded to “[s]everal gunshots of diff erent caliber” he heard in the vicinity of 1217 Ledge Street. The shots “were so cl ose to where [he] was. ” Within fifteen to thirty seconds, he saw a four-door car run a stop sign at a high rate of speed. A passenge r was partially ha nging out of the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - open left rear passenger door of the speeding car. Tolson followed, called for backup, and stopped the car. Tolson ordered the four occupa nts to stay inside the car and place their hands outside the windows. Tolson then di rected the occupants to individually ex it the car, starting with the driver, then the front seat passen ger, then the left rear seat passenger (appellant), and finally the right rear seat passenger who exited from a different door than appellant . The officer did not observe what that last passenger was doing inside the vehicl e, who remained in the vehicle approximately a minute to a minute and a half. The officer testified that the occupant s all had their hands outside the windows as instructed. Th ere was no indication that the last pa ssenger to exit did not comply with those instructions. All occupants exited th e car through the door closest to them. Appellant made several atte mpts to exit the car before his turn, disobeying police instructions to remain insi de the vehicle. Tolson had to repeat edly order appellant to remain inside the car. When appellant ex ited the car, he held a white T-shirt in his hand. Tolson told him to turn around and walk backwards to th e sound of Tolson’s voice, but appellant ignored the officer’s instructions. Instead, appellant stared and laug hed at the officers. Af ter about thirty seconds, appellant walked toward the car an d reached down to where he had previously been seated in the back seat. When he stood up, he was no longer holding th e T-shirt. At that po int, appellant finally complied with the officer’s instru ctions and was ta ken into custody. After all the occupants were removed from th e car, Tolson looked where appellant had been sitting. Tolson saw the white T-shir t partially covering a .9 millimet er handgun that he described as a “silver Bryco Arms with a black handle.” Appella nt did not object to that characterization of the handgun. The gun had a clip in it that contained bullets. Two a dditional firearms were recovered from underneath the driver’s seat. Appellant later told Tolson that on e of those firear ms belonged to another occupant of the car.- 3 - Appellant was neither the driver nor the owner of the vehicle. The weapon was not tested for fingerprints or DNA, nor was th e gun introduced into evidence. In finding appellant guilty, the trial court co ncluded the magazine an d bullets proved the weapon was, in fact, a firearm as contemplated by the statute. Further, the court stated: The gun was found in the seat upon which the defendant was seated just before he got out of th e car. His actions in trying to get out of the car before being ordered to do so are certainly consistent with trying to get away from incriminating evidence. His actions going back and putting the T-shirt in the car is consistent with trying to conceal incriminating ev idence in the place where he had been seated. The trial court rejected appellant’s argument that the last passenger to exit the car placed the weapon on the seat, stating no evidence supported that conc lusion and characterizing it as “pure speculation.” This appeal follows. ANALYSIS Appellant argues the evidence is insufficient to prove he either cons tructively or actually possessed the firearm. He also challenges the tria l court’s finding that the handgun met the statutory definition of “firearm” pursuant to Code § 18.2-308.2. On appeal, when considering a challenge to the sufficiency of the evidence, “we ‘presume the judgment of the trial court to be correct’ and reverse onl y if the trial court’s decision is ‘plainly wrong or without evid ence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). Stat ed otherwise, a reviewing court does not “ask itself whether it believes that the evidence at the tr ial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original; citation and- 4 - internal quotation marks omitted). Rather, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). “This familiar standard gives full play to th e responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate f acts.” Id. Furthermore, “[t]his Court does not substitute its judgment for that of the trier of fact.” H unley v. Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). This deferential appellate standard “applies not only to findings of fact, but also to any reasonable and justified inferences the fact-fi nder may have drawn from the facts proved.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E .2d 61, 63-64 (2010). Thus, a fact finder may “draw reasonable inferences from basic fact s to ultimate facts,” Haskins v. Commonwealth, 44 Va. App. 1, 10, 602 S.E.2d 402, 406 (2004) (citati on omitted), unless doing so would push “into the realm of non sequitur ,” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted). Firearm [I]n order to sustain a convict ion for possessing a firearm in violation of Code § 18.2-308.2, the evidence need show only that a person subject to the provisions of that statute possessed an instrument which was designed, made, and intended to expel a projectile by means of an explosion. It is not necessary that the Commonwealth prove the instrument was “operable,” “capable” of being fired, or had the “actual capacity to do serious harm.” Armstrong v. Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002). Our inquiry, then, is whether the “firearm” that Officer Tolson recovered was “designed, made and intended to expel a projectile by m eans of an explosion.” We find that it is. In support of his argument, appellant points to the lack of forensic evidence, absence of testimony of an expert witness, and no photograp hs of the instrument. He argues the only- 5 - evidence presented at trial was Officer Tolson’s obse rvation that the instrume nt appeared to be a firearm. While Officer Tolson was not qualified as an ex pert, it is a fair inference that a police officer in the field can recognize a firearm. His familiarity with weapons led him to conclude the object was a .9 millimeter Bryc o Arms firearm. See Jord an v. Commonwealth, 286 Va. 153, 158, 747 S.E.2d 799, 801 (2010) (explaining that a w itness’ identification of a firearm as a “Raven” indicated a specific t ype of weapon that was designed, made, and intended to fire or expel a projectile by means of an explosion). Appellant never objected to the officer’s description of the weapon. Additionally, the firearm had a magazine containing bullets. It is certainly a reasonable inference that a .9 millimeter Bryco Arms weapon, loaded with a magazine and bullets, was designed, made, and intended to expel a projectile by means of an expl osion. It defies reason that a loaded weapon would have any purpose other than to discharg e projectiles. See Perry v. Commonwealth, 61 Va. App. 502, 513, 737 S.E.2d 922, 929 (2013) (taking into consideration the fact that the weapon was loaded in determining whether the weapon is a firearm under Code § 18.2-308.2). At oral argument, appellant contended that there was no evidence that the bullets found in the magazine were actual ammunition. He argued the items referred to as “bullets” could have been toy bullets. Yet, when Officer Tolson tes tified that there were bullets in the magazine, appellant never objected to the officer’s descri ption. Thus, the uncontested evidence before the fact finder was that the .9 millimeter Bryco Ar ms weapon had a magazine that contained actual bullets. Therefore, we find no error in the trial court’s determination that the handgun was a “firearm” as defined by Code § 18.2-308.2.- 6 - Possession “A conviction for the unlawful possession of a firearm can be supported exclusively by evidence of constructive possessi on. Evidence of actual possession is not necessary.” Walton v. Commonwealth, 255 Va. 422, 425-26, 497 S.E.2d 869, 871 (1998). To establish constructive possession of a firearm, the Commonwealth mustpresent evidence of acts, statements, or conduct by the defendant or other facts and circ umstances proving that th e defendant was aware of the presence and character of the firearm and that the firearm was subject to his dominion and control. Drew v. Commonwealth, 2 30 Va. 471, 473, 338 S.E.2d 844, 845 (1986). The Commonwealth does not meet its bu rden of proof simply by show ing the defendant’s proximity to the firearm or ownership or occupancy of the premises where the firearm is found. Walton, 225 Va. at 426, 497 S.E.2d at 871-72. However, th ese are circumstances probative of possession and may be considered as factors in determini ng whether the defendant possessed the firearm. Id. Furthermore, the Commonw ealth does not have to prove th at possession was exclusive. Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981). Appellant contends the evid ence supports a reasona ble hypothesis that the last passenger to exit possessed the gun in question. “There is no distinction in the law between the weight or value to be given to either direct or circumstantial evidence.” Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31-32 (2005), cert. denied, 547 U. S. 1136 (2006). The Virginia Supreme Court has held that “‘circumstantial evidence is competent and is entit led to as much weight as direct evidence[,] provided that the circumstantial evidence is su fficiently convincing to exclude every reasonable hypothesis except that of guilt.’” Finn ey v. Commonwealth, 277 Va. 83, 89, 671 S.E.2d 169, 173 (2009) (quoting Dowden v. Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000)). Furthermore, circumstantial evid ence “is not viewed in isol ation.” Muhammad, 269 Va. at 479,- 7 - 619 S.E.2d at 32. “While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each in sufficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Id. (citation omitted). ‘“The statement that circumstantial eviden ce must exclude every reasonable theory of innocence is simply another way of stating th at the Commonwealth ha s the burden of proof beyond a reasonable doubt.”’ Kelly, 41 Va. App. at 258, 584 S.E.2d at 447-48 (quoting Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003)). Whether the hypothesis of inno cence is reasonable is itself a “question of fact,” Emers on v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (citation omitted), subject to deferential appellate review, Kelly, 41 Va. App. at 259, 584 S.E.2d at 448. “Merely because defendant ’s theory of the case differs from that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his innocen ce has not been excluded. What weight should be given evidence is a matter for the [factfinder] to decide.” Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964). By finding the defendant guilty, therefore, the factfinde r “has found by a process of elimination that the evidence does not contain a reasonable theory of innocence.” United States v. Kemble, 197 F.2d 316, 320 (3d Cir. 1952). Haskins, 44 Va. App. at 8-9, 602 S.E .2d at 406 (other citation omitted). Appellant relies on Hancock v. Comm onwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995), in support of his argument. In Hancock, th e accused was seated behind the driver’s seat. A revolver was found on the floorboar d under the driver’s seat. The officer testified he could not see the weapon until after Hancock “stepped out a nd his feet were on top if it.” Id. at 468, 465 S.E.2d at 139. The weapon had fresh mud on it, and Ha ncock’s feet were wet. Only a streetlight illuminated the interior of the vehicle. The offi cer further testified if someone entering the car did not look down at the floorboar d, that person would not necessarily have seen the weapon. Id. at 470, 465 S.E.2d at 140. There was no evidence of when Hancock entered the vehicle, nor did Hancock make any statement. We concluded th at the evidence did not exclude the hypothesis- 8 - that another person in the vehicle may have possessed the gun. Id. at 470, 465 S.E.2d at 141. Essentially, the only evidence was Hancock’s proximity to the weapon. Hancock is inapposite to the facts in the in stant case. Clearly, th e trial court rejected appellant’s reasonable hypothesi s of innocence argument, charact erizing appellant’s hypothesis as “farfetched” and without any evidence to support it. Based on appellant’s conduct, the trial court properly concluded appellant was aware of the presence and character of the firearm and it wa s subject to his dominion and control. Officer Tolson testified that he saw someone “hanging” ou t of the driver’s side back door. He later established that appellant was sitting in that area of the car. It is a reasonable inference that appellant was that individual hanging from the ve hicle’s open door only fifteen to thirty seconds after gunshots were heard. The n, after Officer Tolson stopped the vehicle, appellant refused to comply with the officer’s instructions to remain inside the car. Appella nt continued to disobey instructions after he exited the vehicle. Against Officer Tolson’s directives, appellant returned to the car with a T-shirt in his hand and placed the T-shirt over the weapon. The trial court correctly noted, “[Brown’s] actions in trying to get out of the car be fore being ordered to do so is certainly consistent with trying to get aw ay from incriminating evidence.” Equally incriminating, appellant’s attempt to hide the weapon shows that appellant had knowledge of the character and nature of the inst rument. Further, the weapon was in plain view where appellant had been sitting. It should be noted that only af ter appellant hid the firearm did he comply with the officer’s instructions. Based on the totality of the circumstan ces, we conclude appellant constructively possessed the firearm, being aware of the presence and character of the firearm and that it was subject to appellant’s dominion and control. Th erefore, there is suffi cient evidence to support the trial court’s finding of guilt.- 9 - CONCLUSION We find the evidence was sufficient to prov e the Bryco Arms handgu n was a firearm within the meaning of the statute and th at appellant exercised dominion and control over it. Therefore, appellant’s conviction is affirmed. Affirmed.