COURT OF APPEALS OF VIRGINIA
Present: Judges Annunz iata, Frank and McClanahan Argued at Chesapeake, Virginia

McKINLEY LEE ARTIS MEMORANDUM OPINION * BY v. Record No. 3305-02-1 JUDGE ROBERT P. FRANK MARCH 30, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James A. Cales, Jr., Judge S. Jane Chittom, Appellate Defe nder (Public Defe nder Commission, on brief), for appellant. Michael T. Judge, Assistant Atto rney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
McKinley Lee Artis (appellant) was convicted in a jury trial of pos session of cocaine, in violation of Code § 18.2-250, an d possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4. On appeal, he challenges only th e firearm offense, contending the jury erred in finding that he po ssessed the firearm that was found un der his seat cushion. Finding the jury had sufficient evidence be fore it, we affirm the conviction.
BACKGROUND Officer L. Cortez of the Vi rginia Beach Police Department conducted a traffic stop of a pickup truck in which appellant wa s the passenger. While Cortez talk ed to the driver, Officer L.R. McCray talked to appellant. Cort ez observed appellant “moving arou nd in the vehicle” and “acting nervous, fidgeting around.”

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.McCray, while att e mpti ng t o obtai n s o me identif i cation f r om appellant, noticed: he kept [his left hand] near his side; and I could see in his hand a blue cap, and at that point that’s all I could see w a s m a ybe an inch or so of a blue cap, a little plasti c m a terial, and he was very careful not to expose that hand. He kept it by his side; and while he was trying to locate his I.D., I noti ced that he got rid of the item



### . . . . M c Cray inform ed Co rtez th at s h e belie ved a ppell ant ha d drugs i n hi s ha nd. Cor t ez the n obtai ne d a social secur i t y

number from appe llant and checked the number wi th th e De pa r t m e nt of Motor Vehicles. The number “cam e back not on f ile in Vi r g inia .” At thi s poi nt, Cor t ez as ked appella nt to step out of t h e vehicl e. The d r ive r rem a in ed in the tr uc k. Appellant consented to a pat- dow n search, which Off i cer Cortez conducted beside the truck, wit h

t

h e pas s e nger door open. As a r e sult of thi s search, Cortez retri e ve d a “glas s s m oki ng de vice wit h

re sidue in it ,” whic h he belie ve d wa s a cra c k cocai ne pi pe. Cor t ez di d not watc h t h e dri v er at this point , a n d Offic e r Mc Cra y

ha d le ft the sc en e
. Cor t ez arre st ed appella nt for posses s ion of cocaine and began to se arch the area of the vehicle wh ere appellant ha d been sitting. On the pas s e nger se at of t h e tr uc k wa s “a s m all br own c u s h ion about one i n ch t h ic k.” The

cover w a s cotton, w i th “f oa m i n si de of it.” Officer Corte z desc r i bed the c u s h ion as “s quas hy,” similar to “an upholstere d c u s h ion t h at would go on like a di ni ng room tab l e. ” W h en Co rtez lif t ed the cushion, “directly underneat h” it he f o und a .357 Sm ith and We ss on re volver contai ni ng six rounds. Cort ez al so recovered a plas tic vial with a blue cap “la y i ng right next to th e gun.” Cortez then tol d appellant that he was als o under arrest for posse ssi on of her o i n . Appella nt i m me diatel y responded, “Off icer, that’s not her o in, that’s cocai n e.”
ANALYSIS Essentially, appellant mainta ins t h e e v ide n ce was insufficie n t t o prove he posse sse d t h e f i rearm. He argues the evidence did not preclude th e possibility that the driv er placed the gun under

- 2 -the seat c u shion. Appella nt al so conte nds none of t h e evi d ence proves he knew the gun wa s under the cushion. “On appeal , ‘we review t h e evi d ence i n t

h e light most favorabl e to the Commonwealth, granti ng t o it all r eas onable infere nces fairl y deduc i ble t h e r e f r o m
. ’ ” A r c h e r v. Common wealth , 26
Va . App. 1, 11, 492 S.E. 2d 826, 831 (1997) (quot in g M a r t i n v . C o m m onw ealth , 4 V a . App. 438, 443, 358 S.E.2d 415, 418 (1 987))

. The jur y ’s verdic t w i l l b e u p h e l d o n a

p p e a l “ unless we conclude no rational juror could have reached th a t d e c i s i o n
. ” P e a s e v . C o m m o n w e a lth , 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) ( en banc ) , a f f i rmed , 266 Va. 397, 588 S.E.2d 149 (2003). If evidence supports th e jury’s decision, then this Court m u st affir m t h e c o n v i c t i o n
. I d

. “To establish ‘possession’ in the legal sense, not only m u st the Commonwealth sho w actua l or constructive possession of the drug by the defendant, it m u st also es tablis h that the defendant intentionally and c onsciously possessed the drug with knowledge of its nature a n d c h a r a c t e r
. ” W illiam s v. Commonwe a lth , 14 Va. App. 666, 669, 418 S.E.2d 346, 348 (1992) (citation om itted). To support a conviction based on constructive possession, “the Commonwealth must poi nt to evidence of acts, statem ents, or conduct o f the accused or other facts or circumstances which tend to show that the defendant was aware of both the pres en ce and character of the substance and that it w a s subjec t to his dom inion and control.” Glasco v. Comm onwealth , 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citation om itted) (em pha sis added). “Proof of constructive po ssession n e cessarily rests on circum stantial evid ence; thus, all necessary circu m stances proved m u st be consistent with guilt and inconsistent with innocence and exclude ever y reasonable hypothesis of innocence. ” B u r c h e t t e v . Commonwealth , 15 Va. App. 432, 434, 425 S.E.2d 81, 83 (1992) (citations om itted). However, “[t]he Comm onwealth need only exclude reasonable hypotheses of inno cence that flow from the evidence, no t those that s p ring from the im agination of the d e f e n d a n t

. ” H a m ilton v. Commonwealth , 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

- 3 -Birdsong v. Commonwe a lth , 37 Va. App. 603, 607-08, 560 S.E.2d 468, 470-71 (2002).

“ W hether a hypothesis of innocence is reasonable is a question of fact, and a finding by the [fact finder] is binding on appeal unless plai n l y w r o n g
. ” G l a s co v. Comm onwealth , 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citations om itted). We agree with appellant that proxim ity alone is not sufficient to prove possession. However, proxim ity “is a circum stance which m a y be probative in determining whether an accused pos sessed such [item s ]. Ownership o r o cc upancy of the vehicle in which the [item s ] are found is likewise a circum stance p r o b a t i v e o f p o s s e s s i o n
. ” I d

. (citations om itted). T o determ ine whether the evidence proves possession, we m u s t exam ine the totality of the circum stances. Archer v. Comm onwealth , 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997).
A p p e l l a n t ’ s r e l i a n c e o n C r i s m a n v. Commonwe a lth , 197 Va. 17, 87 S.E.2d 796 (1955),

a n d H a n c o c k v . C o m m onwealth , 21 Va. App. 466, 465 S.E.2d 138 (1995), is m i splaced. In Crism a n , three m e n were in the front seat of a car, and two m e n, including defendant, were in the backseat. 1 97 Va. at 18, 87 S.E.2d at 797. The p o lice found a sm all quantity of powdered heroin on the floor in fron t o f t h e r e a r s e a t

. I d

. at 18, 87 S.E.2d at 797-98. The only evidence linking Crism a n to the heroin was his proxim ity to the drugs and his m e re presence in the vehicle.
I n Hancock , the defendant was a passenger, seated on the rear driver’s side of the car. 21 Va. App. at 468, 465 S.E.2d at 139. Police found a firearm “on the floorboard under the driver’s

s e a t

. ” I d

. T h e officer co uld not see the weapon until Hanco c k “‘stepp e d out and his f eet were on
t o p o f [ t h e g u n ]

. ’ ” I d

. No other evidence suggested Hancock possessed the weapon. Here, however, appellant was sitting on the gun, not sim p ly near it. The jury could reasonably infer that appellant felt the gun th rough the cushion and, thereby, knew it was under
him

. In addition, the vial that was seen in a ppellant’s possession before discovery of the gun was

- 4 -then found beside the gu n under the sam e cushion. Appellan t adm itted h e knew the contents of

t h e v i a l

. T h e s e a d d i t i o n a l f a c t o r s d i s t i n g u i s h C r ism a n a n d H a n c o c k from the case before us. Appellant contends the driv er had the opportunity to put the gun under the seat cushion and that the Commonwe a lth failed to exclude t h i s h y p o t h e s i s o f i n n o c e n c e
. S e e , e
. g
. , B i r d s o n g , 37 Va. App. at 608, 560 S.E.2d at 470-71 (notin g the Commonwealth m u st exclude every reasonable inference of innocence arising from th e evidence). However, the jury did not find appellant’s inference reasonable, and we are bou nd by that d e term ination unless it is plainly

w r o n g
. G l a s c o , 26 Va. App. at 774, 497 S.E.2d at 155. Based on the evidence presented in this case, the jury’s rejection of such an inference was not plainly wrong. Officer Cortez found the fully loaded fi rearm underneath the seat cushion where appellant was sitting while he possessed the dr ugs. Based upon the size and description of the foa m cushion and the firearm , the jury could re asonably infer that the driver could not have placed the g un under the cushion without the offi cer noticing his actions. The evidence proved appellant and Officer Cortez stood beside the pa ssenger-side door to the truck during their encounter. That door rem a ined open from the tim e appellant stepped out of the vehicle until the officer discovered the weapon. Cortez testified he did not see the driver, who rem a ined in the truck, engage in any suspicious behavior duri ng this tim e. The driver was no longer under investigation, allowing the inference that he had no reason to hide the gun if it had been in his possession. Appellant w a s the only person seen m a king hand m o t i o n s t o w a r d t h e c u s h i o n
. S e e Clarke v. Commonwealth , 32 Va. App. 286, 305-06, 527 S.E.2d 484, 494 (2000) (noting that a fact finder can consider move m e nt toward the place where a gun is found as eviden ce of possession). The officer found the vi al that was seen in appellant’s hand right beside the firearm

. The jury, as fact finder, could reject the hypothesis that the dr iver placed the weapon under the cushion based on this evidence. The ju ry’s decision was not plainly wrong.

- 5 -CONCLUSI ON The evidence proved m o re than appellant’s m e re proxim ity to the weapon and m e re occupancy of a vehicle. We hold the fact finder had sufficien t eviden ce to find appellant was guilty b e yon d a reason ab le doubt.
Affirm ed.

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