COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Ortiz and Senior Judge Humphreys

Argued at Lexington, Virginia

DWAYNE LAMONT MOORMAN

MEMORANDUM OPINION* BY

v. Record No. 1182-23-3 JUDGE ROBERT J. HUMPHREYS

OCTOBER 8, 2024

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG

J. Frederick Watson, Judge

Meghan Shapiro, Senior Appellate Attorney (Virginia Indigent 

Defense Commission, on briefs), for appellant.

Allison Mentch, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Dwayne Moorman appeals his convictions of possession with intent to distribute a Schedule 

I or II controlled substance, in violation of Code § 18.2-248; possession of a firearm while 

possessing with intent to distribute a Schedule I or II controlled substance, in violation of Code 

§ 18.2-308.4; and possession of a firearm by a convicted violent felon, in violation of Code 

§ 18.2-308.2. He argues that the trial court erred by: (1) denying his Batson1 motion, (2) denying 

his motion to dismiss the indictments on speedy trial grounds, (3) denying his motion to strike the 

evidence as insufficient to support his convictions, (4) denying his own proposed jury instruction 

about constructive possession, and (5) including a typographical error misstating the law on 

constructive possession in a jury instruction. Finding no error, we affirm.

* This opinion is not designated for publication. See Code § 17.1-413(A).

1 Batson v. Kentucky, 476 U.S. 79 (1986).

UNPUBLISHED
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BACKGROUND2

In October 2021, Moorman and his girlfriend, Jennifer Branch, lived with their two 

children in Lynchburg, Virginia. Their two-story residence consisted of an upper level with a 

living room, two bedrooms for the children, and a bathroom; and a lower level with a second 

living room, Moorman and Branch’s bedroom, the laundry room, and the kitchen. On October 4, 

2021, Branch was upstairs when she heard “rumbling” coming from Moorman’s bedroom and 

called the police. As Lynchburg Police Officer Rowland approached the house, Moorman exited 

through the front door and exclaimed, “I’ve been shot. Somebody broke into my house. I need 

an ambulance. . . . Somebody broke into my back door.” Moorman confirmed to Officer 

Rowland that he lived at the house. When Officer Rowland and other officers conducted a 

protective sweep of the residence, they saw green plant material, suspected hash oil, and drug 

packaging materials in Moorman’s bedroom.

Moorman told Lynchburg Police Detective Dubie that he had awoken to see someone 

standing in his room holding a gun and wearing a ski mask. Moorman claimed that he struggled 

with the intruder before forcing him from the bedroom. The intruder then fired through the 

bedroom door, striking Moorman before fleeing.

Detectives secured a search warrant for Moorman’s residence. Detectives Dubie and 

Booth searched the house while Detective Shumate collected and packaged evidence. Detective 

Shumate wore gloves and shoe covers inside the residence. She testified that she changed gloves 

after touching each item of evidence. She did not place any items on a surface bearing a blood 

2 Under settled precedent, we recite the facts “in the ‘light most favorable’ to the 

Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 

225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This standard 

“requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, 

and regard as true all the credible evidence favorable to the Commonwealth and all fair 

inferences to be drawn therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins,

295 Va. 323, 324 (2018)).
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stain. Detective Dubie confirmed that everyone searching the residence wore gloves and that he 

changed gloves each time he touched “something messy like blood.”

Downstairs, police found four cartridge casings in the kitchen and ammunition, a 

magazine, and a rifle in the laundry room. On the floor in front of the washer and dryer, they 

discovered a backpack containing four firearms—a Charter Arms revolver, a Glock pistol, a Sig 

Sauer pistol, and a Smith & Wesson handgun. Also inside the backpack were two plastic 

baggies containing 139.43 grams and 13.87 grams of cocaine. Detective Shumate collected a 

DNA swab sample from the Smith & Wesson. Forensic testing showed that Moorman could not 

be excluded as a major contributor to the DNA recovered from the pistol, and the likelihood that 

another individual contributed the DNA was one in greater than 7.2 billion. Police also found 

“[a] large sum of cash” in varying denominations, two scales, and packing materials in 

Moorman’s bedroom. A white powder, consistent with cocaine residue, was on Moorman’s

dresser, the bedroom floor, and the two scales.

Police arrested Moorman on March 11, 2022, and he was held in custody. The 

Lynchburg General District Court certified his charges to the grand jury on May 4, 2022, which 

returned indictments against Moorman on June 6, 2022. A jury trial was scheduled for 

September 27, 2022.

On August 10, 2022, Moorman moved to suppress evidence, and the following day the 

Commonwealth filed a “Request to Dismiss Motion to Suppress or Request for a Bill of 

Particulars.” On August 30, 2022, the trial court granted Moorman leave to file an amended 

motion to suppress, which he filed on September 12, 2022, along with a motion for a Franks3

hearing. The Commonwealth filed responsive pleadings on September 19, 2022. The following 

day, Moorman moved to set a hearing.

3 Franks v. Delaware, 438 U.S. 154 (1978).
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On September 21, 2022, the trial court held a hearing on Moorman’s request to schedule 

a suppression hearing. The Commonwealth told the court that Sergeant Claytor, Detective 

Dubie, Officer Bryan, and Officer Rowland were necessary witnesses for the suppression hearing

and were not all available on the same day before the September 27, 2022 trial date. Moorman 

stated that “he d[id] not want to agree to a continuance because he [wa]s being held in custody 

and he want[ed] to have his trial date.” The trial court found that it was “not possible to have a 

suppression hearing based on various circumstances involving the officers that are required to be 

here” so “a delay of the trial date” was necessary “because we just don’t have time.” The trial 

court further found that the “delay [wa]s caused by the motions” Moorman had filed. The trial 

court continued the case to the next docket call so counsel could select new dates for the 

suppression hearing and trial. The court held that the speedy trial deadline was tolled from 

September 12, 2022—the date Moorman filed his amended motion to suppress—until the trial 

court ruled on his motion.

At the October 3, 2022 docket call, the parties scheduled the suppression hearing for

December 30, 2022, and the trial for January 10, 2023. The written orders stated that the 

continuance was made “[o]n motion of the defendant, by counsel, and with the concurrence of 

the Commonwealth.” The trial court subsequently denied Moorman’s motion to suppress.

During voir dire, Moorman asked the prospective jurors whether there was anything that 

would affect their ability to hear the case. Juror K.T. replied:

I look at this young man and that could be my son and, you know, 

I’m not saying I’m biased but, you know, I want to be here and 

fight for him like he’s my son so I don’t know does that mean bias 

or just being -- I look at it as being fair.

Moorman asked whether K.T. could still be fair, and she replied, “Absolutely, yes.” The 

Commonwealth later exercised all four of its peremptory strikes to remove African-American 

women from the venire, and Moorman raised a Batson objection. One of those peremptory 
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strikes was against K.T. The Commonwealth stated that it struck K.T. because of “her comment 

that she looks at [Moorman] as her son and wants to fight for him like he’s her son.” Moorman 

countered that the Commonwealth’s stated reason was not race-neutral:

I would suggest that that’s the very nature of the argument, the 

idea that because she’s African American and she can see my 

client, who’s African American, in that -- in that same kind of -- as 

someone who’s like her is the very nature of . . . I mean, just that

the concern was that she also spoke about -- that she talked about 

her that she could be his mother.

The trial court found that “a race neutral explanation has been offered” based on the statement 

K.T. made about “fighting for [Moorman],” and overruled the objection.

After the Commonwealth rested, Moorman moved to strike the evidence. He argued that 

there was no connection between him and the firearms and cocaine and that his “mere proximity 

in the house” did not prove he possessed the contraband. He also argued that the officers 

transferred his DNA to the firearm while collecting evidence. The trial court denied the motion 

to strike.

Moorman presented evidence and then renewed his motion to strike. Moorman argued 

that there was “insufficient evidence as a matter of law that the items in the laundry room were in 

any way known by or possessed by” him. He further argued that the Commonwealth had failed 

to prove that any of the recovered guns met the statutory definition of a firearm because there 

was no evidence that the Commonwealth had tested the weapons. The trial court denied the 

renewed motion to strike.

The parties agreed to Jury Instruction J, which stated:

To knowingly and intentionally possess a controlled 

substance means that a person is aware of the presence and 

character of the substance and has actual physical possession or 

constructive possession. Actual physical possession means that the 

substance is found on the person. Constructive possession means 

that the person has dominion and control over the substance. Mere 

proximity is not enough.
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Possession need not be exclusive; it may be shared with 

another. The length of time of the possession is not material.

Ownership or occupancy of the premises in which a 

controlled substance is found does not create a presumption that 

the owner or occupant either knowingly or intentionally possessed 

such substance. Such ownership or occupancy is a fact which may 

be considered with other evidence.

Possession may be proved by acts, declarations or conduct 

of Mr. Moorman from which it may be fairly inferred that he was 

aware of the presence and character of the substance at the place 

found.

Moorman also proffered Jury Instruction K, which stated, “Ownership or occupancy of a 

premises, standing alone, is not sufficient to establish possession.” The trial court refused Jury 

Instruction K as duplicative of Jury Instruction J.

The Commonwealth proffered a jury instruction to the trial court on constructive 

possession, which read:

Actual possession of both the firearm and the controlled substance 

is not required.

The Commonwealth may prove that the defendant constructively 

possessed a firearm and constructively possessed Cocaine. 

Constructive possession of either or both is sufficient for 

conviction.

To support a conviction based upon constructive 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 aware of both the presence and 

character of the substance and that it was subject to his dominion 

and control.

(Emphasis added). Moorman objected to the instruction’s use of the word “support.” The 

parties agreed to amend the instruction to substitute the word “prove” for “support,” and the trial 

court directed the clerk to retype the instruction. After the evidence concluded, the trial court 

gave the parties a copy of the jury instructions to review and directed the parties “to pay 
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particular attention to” the amended instruction, now labeled Jury Instruction I. Moorman 

confirmed that he had no objection to Jury Instruction I.

Jury Instruction I, as retyped, provided:

Actual possession of the firearm is not required. The 

Commonwealth may prove that the defendant constructively 

possessed a firearm.

To prove constructive possession, 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 domain and control.

(Emphasis added). The trial court used the word “dominion” instead of “domain” when it read 

Jury Instruction I to the jury. The Commonwealth also used the phrase “dominion and control”

twice when explaining constructive possession during closing argument. The jury ultimately 

convicted Moorman of possession with intent to distribute a Schedule I or II controlled 

substance, possession of a firearm while possessing with intent to distribute a Schedule I or II 

controlled substance, and possession of a firearm by a convicted violent felon.

Moorman moved to set aside the verdict, arguing that: (1) the Commonwealth failed to 

prove that he possessed a firearm, and (2) Jury Instruction I misstated the law. Several days 

later, he moved to dismiss the indictments, asserting that both his constitutional and statutory 

speedy trial rights were violated.

The trial court addressed Moorman’s post-trial motions at the sentencing hearing. First, 

Moorman argued that the Commonwealth failed to prove that he possessed items that were 

designed or intended to expel a projectile because the Commonwealth’s firearm expert had only 

seen pictures of the weapons. The trial court ruled that the evidence was sufficient to support the 

jury’s finding that the items were firearms, pointing to the detectives’ testimony identifying the 
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make and model of the firearms and denying that they were BB or pellet guns and the fact that 

the Commonwealth showed the firearms to the jury as demonstrative exhibits.

Next, Moorman argued that the verdict should be set aside because the parties had agreed 

to Jury Instruction I with the language “dominion and control,” but the instruction given to the 

jury used the phrase “domain and control.” He argued that his failure to object 

contemporaneously was excused by good cause because “everything occurred orally” and the 

ends of justice exception applied because the instruction misstated the law. The trial court 

denied Moorman’s motion because it had provided the parties with a copy of Jury Instruction I 

and specifically instructed them to review it, Moorman had not objected, and the trial court used 

the correct phrase “dominion and control” when reading the instruction to the jury.

Finally, Moorman argued that his speedy trial rights were violated by the 305-day delay 

between his arrest and trial. The trial court denied the motion after finding that the Supreme 

Court of Virginia’s emergency orders tolled the speedy trial clock through June 22, 2022, and 

noting that the parties were unable to schedule a hearing on the motion to suppress before 

September 27, 2022, because of the witnesses’ schedules. The trial court further found that “the 

continuance was necessitated by Mr. Moorman’s filing of the motion to suppress” and that 

Moorman had agreed to the January 10, 2023 trial date. Accordingly, the court found that the 

speedy trial clock was tolled from September 12, 2022, to December 30, 2022, and denied his 

motion to dismiss on speedy trial grounds.

ANALYSIS

I. Batson

“[A] defendant [has] the right to be tried by a jury whose members are selected pursuant to 

non-discriminatory criteria.” Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). To that end, “the 

Equal Protection Clause forbids [a] prosecutor to challenge potential jurors solely on account of 
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their race or on the assumption that [B]lack jurors as a group will be unable impartially to consider 

the State’s case against a [B]lack defendant.” Id. at 89; see also Stevens v. Commonwealth, 70 

Va. App. 280, 296-99 (2019).

Moorman asserts that the trial court erred by denying his Batson challenge to the 

Commonwealth’s peremptory strike of Juror K.T. after she stated that Moorman “could be [her] 

son” and that she wanted to be there to “fight for him like he’s [her] son.” Moorman reasons that 

K.T.’s statement was “inseparable from the race she has in common with” him, and thus, that the 

Commonwealth’s use of its peremptory strike was not “race neutral.” We disagree.

“A Batson challenge involves three sequential steps . . . .” Bethea v. Commonwealth, 297 

Va. 730, 748 (2019). First, “the opponent of the strike ‘must make out a prima facie case’ of 

purposeful discrimination.” Id. (quoting Johnson v. California, 545 U.S. 162, 168 (2005)). Second, 

the burden shifts to the Commonwealth to “‘explain adequately the racial exclusion’ by offering 

permissible race-neutral justifications for the strikes.” Id. (quoting Johnson, 545 U.S. at 168). 

Third, if the Commonwealth tenders a race-neutral explanation, “the trial court must then decide 

whether the opponent of the strike has proved purposeful racial discrimination.” Id. (quoting 

Johnson, 545 U.S. at 168).

[T]o establish such a prima facie case, “the defendant first must show 

that he is a member of a cognizable racial group . . . and that the 

prosecutor has exercised peremptory challenges to remove from the 

venire members of the defendant’s race. Second, the defendant is 

entitled to rely on the fact, as to which there can be no dispute, that 

peremptory challenges constitute a jury selection practice that 

permits ‘those to discriminate who are of a mind to discriminate.’ . . . 

Finally, the defendant must show that these facts and any other 

relevant circumstances raise an inference that the prosecutor used 

that practice to exclude the veniremen from the petit jury on account 

of their race.”

Johnson v. Commonwealth, 259 Va. 654, 674 (2000) (second and third alterations in original)

(quoting Batson, 476 U.S. at 96). When considering whether the defendant has made a prima facie 
- 10 -

showing of racial discrimination, the trial court “‘should consider all relevant circumstances,’

including but not limited to, ‘a “pattern” of strikes against [African-American] jurors,’ or ‘the 

prosecutor’s questions and statements during voir dire examination and in exercising his 

challenges.’” Stevens, 70 Va. App. at 299 (alteration in original) (quoting Batson, 476 U.S. at 

96-97). “In other words, the trial court is not limited in what it could potentially identify as 

sufficient evidence of racial discrimination.” Id. The Batson framework “presumes the good faith 

of prosecutors,” and the movant “ultimately carries the ‘burden of persuasion’ to ‘prove the 

existence of purposeful discrimination.’” Bethea, 297 Va. at 748 (quoting Johnson, 545 U.S. at 

170-71).

“In evaluating the race neutrality of an attorney’s explanation, a court must determine 

whether, assuming the proffered reasons for the peremptory challenges are true, the challenges 

violate the Equal Protection Clause as a matter of law.” Hernandez v. New York, 500 U.S. 352, 359

(1991). “[O]fficial action will not be held unconstitutional solely because it results in a racially 

disproportionate impact.” Id. at 359-60 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 

U.S. 252, 264-65 (1977)). Rather, “[p]roof of racially discriminatory intent or purpose is required to 

show a violation of the Equal Protection Clause.” Id. at 360 (quoting Arlington Heights, 429 U.S. at 

265).

Whether the Commonwealth intends to discriminate “[i]s a pure issue of fact.” Bethea, 297 

Va. at 756 (alteration in original) (quoting Hernandez, 500 U.S. at 364). We therefore give “great 

deference” to the trial court’s credibility findings as they concern the Commonwealth’s reasons for 

its peremptory strikes. Id. (quoting Davis v. Ayala, 576 U.S. 257, 271 (2015)). “On appeal, the trial 

court’s findings will be reversed only if they are clearly erroneous.” Buck v. Commonwealth, 247 

Va. 449, 451 (1994). The “decisive question” is whether counsel’s race-neutral explanation for a 

peremptory challenge is credible. Hernandez, 500 U.S. at 365. “This standard of review logically 
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recognizes the trial court’s unique opportunity to observe and evaluate ‘the prosecutor’s state of 

mind based on demeanor and credibility’ in the context of the case then before the court.”

Robertson v. Commonwealth, 18 Va. App. 635, 639 (1994) (quoting Hernandez, 500 U.S. at 365).

In this case, Moorman failed to prove that the Commonwealth purposefully discriminated

on the basis of race when it struck K.T. from the jury.

4

 “Unless a discriminatory intent is inherent in 

the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U.S. 

at 360. The Commonwealth proffered that it struck K.T. because she stated that Moorman “could 

be [her] son” and that she wanted “to be here and fight for him” like he was her son. (Emphasis 

added). Such a statement of advocacy for the defendant by a prospective juror is a race-neutral 

reason for the Commonwealth to exercise a peremptory strike; the Commonwealth was not required

to blindly accept K.T.’s assertion that she could nonetheless follow the judge’s instructions and 

render a verdict based solely on the evidence. After all, “the prosecutor’s explanation need not rise 

to the level justifying exercise of a challenge for cause” to sustain a peremptory challenge. Batson, 

476 U.S. at 97. The Commonwealth need only “articulate a neutral explanation related to the 

particular case to be tried.” Id. at 98. The Commonwealth met that burden here.

We reject Moorman’s argument that the Commonwealth’s reason “necessarily included the 

fact of [K.T.’s] race (Black) because it concerned her self-identification with [Moorman’s] 

appearance as a Black man.” But the Commonwealth did not express concern that K.T. would be 

partial toward the defendant based on her race. See Batson, 476 U.S. at 89. Rather, K.T. expressly 

stated that she would be partial toward Moorman. Regardless of the source of her partiality, the 

trial court could conclude that her expressed bias, not her race, prompted the strike. See Batson, 476 

U.S. at 87 (“Competence to serve as a juror ultimately depends on an assessment of individual 

qualifications and ability impartially to consider evidence presented at a trial.” (emphasis added)).

4

It is undisputed that Moorman satisfied the first step of a Batson challenge.
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Finally, Moorman argues that the Commonwealth’s race-neutral reason was pretextual for 

the same reason he argues it was not race-neutral. His argument fails for the same reasons. 

Peremptory challenges “traditionally have been viewed as one means of assuring the selection of a 

qualified and unbiased jury.” Batson, 476 U.S. at 91. Because K.T.’s statement revealed a lack of 

impartiality, the record supports the Commonwealth’s race-neutral use of its peremptory strike to 

exclude her from the jury. For that reason, we affirm the trial court’s denial of Moorman’s Batson

motion.

II. Speedy Trial

Moorman next contends that the trial court erred when it denied his post-trial motion to 

dismiss the indictments on both constitutional and statutory speedy trial grounds. We need not 

reach the merits of Moorman’s claims, however, because his speedy trial motion came too late. 

Therefore, this assignment of error is waived.

“Defense motions or objections seeking . . . dismissal of a warrant, information, or 

indictment . . . on the ground that . . . the defendant would be deprived of a speedy trial” must be 

“raised in writing, before trial.” Code § 19.2-266.2(A), (B); see also Rule 3A:9(c). “The circuit 

court may, however, for good cause shown and in the interest of justice, permit the motions or 

objections to be raised at a later time.” Code § 19.2-266.2(B). “The plain language of Code 

§ 19.2-266.2 requires defendants—absent good cause—to make motions for dismissal of charges 

for constitutional and statutory speedy trial violations in writing within the later of seven days 

before trial or as soon as the grounds for the motion arise prior to trial.” Bass v. Commonwealth, 70 

Va. App. 522, 534 (2019). “These requirements are not superfluous administrative hurdles.” Id. 

They “serve[] legitimate state interests in protecting against surprise, harassment, and undue delay.”

Arrington v. Commonwealth, 53 Va. App. 635, 640 (2009) (alteration in original) (quoting 

Magruder v. Commonwealth, 275 Va. 283, 300 (2008), vacated and remanded sub nom). They are 
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also necessary to allow the Commonwealth to exercise its limited right to appeal under Code 

§ 19.2-398.5 See Upchurch v. Commonwealth, 31 Va. App. 48, 53 (1999).

In this case, Moorman did not move to dismiss the indictments until more than five months 

after his trial ended and the jury convicted him. He insists that the trial court precluded him from 

asserting his speedy trial rights when it refused to set a hearing on his motion to suppress and by

continuing the December 27, 2022 jury trial over his objection. Even were that so, nothing 

prohibited Moorman from filing a motion to dismiss on speedy trial grounds before the jury trial 

began on January 10, 2023. Indeed, the trial court ruled on his suppression motion on December 

30, 2022, more than seven days before trial, affording him sufficient time to file a motion to dismiss

within the time limits established in Code § 19.2-266.2 and Rule 3A:9(c). He failed to do so, and 

instead waited more than five months to raise the issue in the trial court.

Moreover, the trial court did not excuse his failure to bring the motion within the deadline. 

The trial court considered, and rejected, Moorman’s claim that he never agreed to the January 10, 

2023 trial date and reminded him that the last-minute filing of his suppression motion necessitated a 

continuance of the jury trial. The trial court also questioned why Moorman did not 

contemporaneously object when the parties first discussed a continuance. Thus, the record fails to 

demonstrate that good cause excused Moorman’s failure to comply with the statute or the Rule. 

Accordingly, Moorman has waived his speedy trial claims.

III. and IV. Sufficiency of the Evidence

“When an appellate court reviews the sufficiency of the evidence underlying a criminal 

conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The 

judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly 

5 The Commonwealth may appeal the pretrial dismissal of a felony charge for a speedy 

trial violation. Code § 19.2-398(A)(1)(i).
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wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017) 

(quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does 

not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition 

it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023) 

(alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)).

Instead, the only relevant question for this Court on review “is, after reviewing the 

evidence in the light most favorable to the prosecution, whether any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan 

v. Commonwealth, 280 Va. 672, 676 (2010)). “This familiar standard gives full play to the 

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 facts.” Ervin v. Commonwealth, 57 

Va. App. 495, 502 (2011) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “If 

there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its 

own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at 

the trial.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (quoting Chavez v. 

Commonwealth, 69 Va. App. 149, 161 (2018)).

Moorman claims that the evidence did not support his convictions for these offenses because 

(1) the Commonwealth did not prove that any of the guns found in his home met the definition of a 

“firearm” and (2) the Commonwealth did not prove that he constructively possessed the contraband

found in his laundry room. We address each assertion in turn.

A. The Firearms

It is unlawful for “any person who has been convicted of a felony . . . to knowingly and 

intentionally possess or transport any firearm or ammunition for a firearm.” Code § 18.2-308.2(A). 

Similarly, it is unlawful “for any person unlawfully in possession of a controlled substance 
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classified in Schedule I or II of the Drug Control Act . . . to simultaneously with knowledge and 

intent possess any firearm.” Code § 18.2-308.4(A). To sustain a conviction under Code 

§§ 18.2-308.2 and -308.4, the Commonwealth need not prove that the firearm was “‘operable,’

‘capable’ of being fired, or had the ‘actual capacity to do serious harm.’” Armstrong v. 

Commonwealth, 263 Va. 573, 584 (2002). Rather, “the evidence need show only that a person 

subject to the provisions of [those] statute[s] possessed an instrument which was designed, made, 

and intended to expel a projectile by means of an explosion.” Id. (emphasis added); see also

McDaniel v. Commonwealth, 264 Va. 429 (2002). “Whether the object is a firearm that was 

designed, made, and intended to fire or expel a projectile by means of an explosion is a question of 

fact that may be proven by circumstantial evidence.” Speller v. Commonwealth, 69 Va. App. 378, 

395 (2018). “[S]pecific testimony that the object was designed, made, and intended to fire or expel a 

projectile by means of an explosion” is not required. Id.

In Jordan v. Commonwealth, 286 Va. 153 (2013), the Supreme Court affirmed Jordan’s 

conviction under Code § 18.2-308.2, where the evidence proved that the victim was familiar with 

handguns because his father was in the military; the victim identified the specific make of the 

firearm describing it as a small silver semiautomatic pistol; and Jordan pointed the gun at the 

victim’s head during a carjacking, implying his intent to harm the victim. Id. at 155. On 

cross-examination the victim could not say “for certain that the object was not a toy gun” but, when 

asked on re-direct whether the gun looked like a toy gun, responded, “[a] really detailed [one] if it 

was.” Id. (alterations in original). The Supreme Court held that the evidence was sufficient to 

prove that the object Jordan held during the carjacking was, in fact, a firearm. Id. at 159.

Here, the evidence established that the firearms found in Moorman’s house were 

instruments “designed, made, and intended to expel a projectile by means of an explosion.”

Armstrong, 263 Va. at 584. Detective Dubie testified that he recovered a “Sig Sauer handgun, [a] 
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Smith & Wesson handgun, [a] Glock 43 handgun, [a] .380 special revolver, [and] an AR rifle”

during the search, and he affirmed that these were all firearms. Similarly, Detective Shumate and 

Detective Bragg both identified the five weapons recovered from the laundry room by make and 

model. Detective Shumate testified that the Glock pistol and the Sig Sauer pistol were “loaded” and 

that she removed the magazines before packing the weapons. Police also found ammunition in the 

laundry room near the guns.

At trial, Detective Shumate viewed the Sig Sauer and Smith & Wesson pistols and affirmed

that they were firearms the officers recovered from Moorman’s laundry room. The jury also

observed those two firearms at trial. Detective Bragg affirmed that the weapons were all firearms 

and explained that they were “designed and intended to expel a projectile by means of explosion.”

And Detective Shumate testified that none of the firearms were “BB guns or pellet guns.”

A reasonable fact finder could conclude from that evidence that at least one of the weapons 

recovered from Moorman’s residence met the statutory definition of a firearm.

B. Constructive Possession

It is unlawful “for any person to manufacture, sell, give, distribute, or possess with intent to 

manufacture, sell, give or distribute a controlled substance.” Code § 18.2-248(A). “‘A conviction 

for the unlawful possession of [contraband] can be supported exclusively by evidence of 

constructive possession,’ whether sole or joint.” Lewis v. Commonwealth, 76 Va. App. 92, 102

(2022) (alteration in original) (quoting Smallwood v. Commonwealth, 278 Va. 625, 630 (2009)). 

“Constructive possession may be established by ‘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 [contraband] and that the [contraband] was subject to his dominion and 

control.’” Id. (alterations in original) (quoting Smallwood, 278 Va. at 630). “While the 

Commonwealth does not meet its burden of proof simply by showing the defendant’s proximity to 
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the [contraband], it is a circumstance probative of possession and may be considered as a factor in 

determining whether the defendant possessed the [contraband].” Smallwood, 278 Va. at 630-31

(quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)).

Applying those principles, sufficient evidence supported the jury’s finding that Moorman 

constructively possessed the firearms and the narcotics recovered from the backpack the police 

found in the laundry room. Moorman admitted that the downstairs bedroom was his and that he

was sleeping in that bedroom on the night the intruder shot him. Police recovered two scales, 

packaging materials, and a large sum of cash in various denominations from the bedroom. 

Detective Hendricks also saw white powder consistent with cocaine residue on Moorman’s dresser, 

the bedroom floor, and the two scales. The backpack contained four firearms, more packaging 

materials, and two separately packaged quantities of cocaine, weighing 13.87 grams and 139.43 

grams respectively. Moorman could not be excluded as a major contributor of a DNA sample 

recovered from one of the firearms in the backpack, and the likelihood that another individual 

contributed to that DNA was one in greater than 7.2 billion. At a minimum, the evidence showed

that Moorman was aware of the nature and character of the firearm bearing his DNA and that it was 

subject to his dominion and control. The packaging materials, apparent cocaine residue, and large 

sum of cash found in Moorman’s bedroom also supported an inference that he was aware of the 

cocaine in the backpack and that it was, like the firearm, subject to his dominion and control.

The record does not support Moorman’s assertion that the DNA test results lacked 

evidentiary value “given the extent of contamination.” Based on the officers’ testimony describing 

the care they took when collecting the evidence, the jury could reasonably conclude that no 

contamination occurred.

“[C]ircumstantial evidence is not viewed in isolation.” Pulley v. Commonwealth, 74 

Va. App. 104, 128 (2021) (alteration in original) (quoting Holloway v. Commonwealth, 57 Va. App. 
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658, 665 (2011) (en banc)). “While no single piece of evidence may be sufficient, the ‘combined 

force of many concurrent and related circumstances, each insufficient in itself, may lead a 

reasonable mind irresistibly to a conclusion.’” Holloway, 57 Va. App. at 665-66 (quoting Emerson

v. Commonwealth, 43 Va. App. 263, 277 (2004)). Here, the facts and circumstances are sufficient 

to lead a reasonable mind irresistibly to the conclusion that Moorman possessed the firearms and the 

cocaine recovered from the backpack found in the laundry room. Therefore, the evidence was 

sufficient to support his convictions.

V. and VI. Jury Instructions

“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has 

been clearly stated and that the instructions cover all issues which the evidence fairly raises.’” 

Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019) (quoting Darnell v. Commonwealth, 6 

Va. App. 485, 488 (1988)). “We review a trial court’s decisions in giving and denying requested 

jury instructions for abuse of discretion.” Holmes v. Commonwealth, 76 Va. App. 34, 53 (2022) 

(quoting Conley v. Commonwealth, 74 Va. App. 658, 675 (2022)). “[W]hether a jury instruction 

accurately states the relevant law is a question of law that we review de novo.” Watson v. 

Commonwealth, 298 Va. 197, 207 (2019) (quoting Payne v. Commonwealth, 292 Va. 855, 869 

(2016)).

A. Proffered Instruction K

When reviewing “a trial court’s refusal to give a proffered jury instruction, we view the 

evidence in the light most favorable to the proponent of the instruction.” Dandridge v. 

Commonwealth, 72 Va. App. 669, 676 (2021) (quoting Lienau v. Commonwealth, 69 Va. App. 254, 

260 (2018)). Moorman argues that the trial court erred in refusing his proposed Jury Instruction K. 

He contends that it correctly stated the law and, unlike Instruction J, “would have applied to both 

possession of a controlled substance as well as a firearm.”
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“When granted instructions fully and fairly cover a principle of law, a trial court does not 

abuse its discretion in refusing another instruction relating to the same legal principle.” Daniels v. 

Commonwealth, 275 Va. 460, 466 (2008) (quoting Stockton v. Commonwealth, 227 Va. 124, 145

(1984)). “Parties are not entitled to redundant instructions covering principles of law already 

addressed in other instructions.” Payne v. Commonwealth, 65 Va. App. 194, 213 (2015), aff’d, 292 

Va. 855 (2016).

Moorman’s proffered Jury Instruction K stated that “Ownership or occupancy of a premises, 

standing alone, is not sufficient to establish possession.” Jury Instruction J stated that “Constructive 

possession means that the person has dominion and control over the substance. Mere proximity is 

not enough.” (Emphasis added). It further stated, “Ownership or occupancy of the premises in 

which a controlled substance is found does not create a presumption that the owner or occupant

either knowingly or intentionally possessed such substance. Such ownership or occupancy is a fact 

which may be considered with other evidence.” Both instructions would therefore inform the jury 

that a conviction for possession of contraband could not be sustained merely because the contraband 

was found in Moorman’s residence, but Jury Instruction J was a more detailed and accurate 

statement of the law. As such, the trial court did not abuse its discretion in granting Instruction J 

and refusing Instruction K. It is well-settled that “a court may exercise its discretion and properly 

exclude an instruction that both correctly states the law and is supported by the evidence when other 

granted instructions fully and fairly cover the relevant principle of law.” Payne, 292 Va. at 869

(quoting Lawlor v. Commonwealth, 285 Va. 187, 256 (2013)).

Nevertheless, Moorman argues for the first time on appeal that, because the language 

regarding constructive possession in Instruction J referred only to controlled substances and did not 

mention firearms, the trial court failed to properly instruct the jury that he could not be convicted of 

the possession of a firearm based solely on his mere proximity to the firearms recovered from his 
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house. He therefore seeks reversal of his convictions on the weapons charges. However, Moorman 

specifically did not object to Instruction J on the basis that it only included language pertaining to 

the constructive possession of controlled substances. Because he did not raise a timely and specific

objection to Instruction J on that basis, we will not consider it. Rule 5A:18.

Moreover, any error in this instruction was harmless. The law with respect to constructive 

possession is the same irrespective of the contraband possessed. While Instruction J could have 

been clearer, it certainly was not confusing and correctly stated the law regarding constructive 

possession. Thus, because the trial court properly instructed the jury on principles of law governing 

constructive possession and mere proximity to contraband, any asserted error in the trial court’s 

refusal of Instruction K was harmless. We cannot conclude that the jury would have returned a 

different verdict. “Under the harmless error doctrine, the judgment of the court below will be 

affirmed whenever we can say that the error complained of could not have affected the result.”

Rhoades v. Painter, 234 Va. 20, 24 (1987).

Simply put, Moorman’s proposed Instruction K “was no more or less correct than the 

instruction given. While it ‘was a correct statement of the legal principles involved and the trial 

court, in its discretion, could properly have given the instruction, it does not follow that it was 

reversible error to refuse it.’” Gaines v. Commonwealth, 39 Va. App. 562, 568 (2003) (en banc)

(quoting Lincoln v. Commonwealth, 217 Va. 370, 375 (1976)). Accordingly, we affirm the trial 

court’s refusal of proposed Jury Instruction K.

B. Given Instruction I

“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection 

was stated with reasonable certainty at the time of the ruling, except for good cause shown or to 

enable [the Court of Appeals] to attain the ends of justice.” Rule 5A:18. “The purpose of this 

contemporaneous objection requirement is to allow the trial court a fair opportunity to resolve the 
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issue at trial, thereby preventing unnecessary appeals and retrials.” Creamer v. Commonwealth, 64 

Va. App. 185, 195 (2015).

Specificity and timeliness undergird the 

contemporaneous-objection rule, animate its highly practical 

purpose, and allow the rule to resonate with simplicity: “Not just 

any objection will do. It must be both specific and timely—so that 

the trial judge would know the particular point being made in time 

to do something about it.”

Bethea, 297 Va. at 743 (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)).

Moorman asserts that the trial court erred in giving Jury Instruction I, which contained a 

typographical error resulting in an incorrect statement of the law. Moorman did not timely object to 

the instruction as written, however, so he has waived this assignment of error. Acknowledging his 

failure to object, Moorman asks this Court to apply the good cause and ends of justice exceptions to 

his waiver, which we decline to do.

This Court “may only invoke the ‘good cause’ exception where an appellant did not have 

the opportunity to object to a ruling in the trial court; however, when an appellant ‘had the 

opportunity to object but elected not to do so,’ the exception does not apply.” Perry v. 

Commonwealth, 58 Va. App. 655, 667 (2011) (quoting Luck v. Commonwealth, 32 Va. App. 827, 

834 (2000)). Here, Moorman had the opportunity to object to Jury Instruction I; he just failed to do 

so. Before reading the instructions to the jury, the trial court provided the attorneys with copies for 

review and asked them to “pay particular attention” to Jury Instruction I. When the trial court 

inquired if there was any objection to the instruction, Moorman’s counsel answered, “No, Your 

Honor.” The good cause exception to Rule 5A:18 does not apply in this circumstance.

“The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’”

Melick v. Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Pearce v. Commonwealth, 53 

Va. App. 113, 123 (2008)). Whether to apply the ends of justice exception involves two questions: 

“(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the 
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ends of justice provision would result in a grave injustice.” Commonwealth v. Bass, 292 Va. 19, 27 

(2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). “The burden of 

establishing a manifest injustice is a heavy one, and it rests with the appellant.” Holt v. 

Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (quoting Brittle v. Commonwealth, 54 

Va. App. 505, 514 (2009)).

We find no manifest injustice here. Although the typed jury instruction used the phrase 

“domain and control” rather than “dominion and control,” the trial court used the correct phrase 

“dominion and control” in reading the instruction to the jury, and the Commonwealth twice used the 

phrase “dominion and control” in closing argument. Moreover, the evidence at trial proved that 

Moorman in fact exercised dominion and control over the contraband found in his house. His DNA 

was found on the Smith & Wesson pistol recovered from the backpack and the packaging materials, 

scales, residue, and cash recovered from his bedroom supported the reasonable inference that he 

also had dominion and control over the items found in the laundry room.

“[T]he record must ‘affirmatively show[] that a miscarriage of justice has occurred not . . . 

that a miscarriage might have occurred.’” Bazemore v. Commonwealth, 42 Va. App. 203, 219

(2004) (en banc) (second and third alterations in original) (quoting Mounce v. Commonwealth, 4 

Va. App. 433, 436 (1987)). This standard requires the appellant to “show that either the conduct 

for which he was convicted is not a criminal offense or that the record affirmatively establishes 

that an element of the offense did not occur.” Quyen Vinh Phan Le v. Commonwealth, 65 

Va. App. 66, 74 (2015) (emphases added). The record here does not support either conclusion. 

Thus, the “ends of justice” exception does not excuse Moorman’s failure to preserve this error for 

appeal.
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CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.