COURT OF APPEALS OF VIRGINIA
Present: Judges Clem ents, Kelsey and Beales Argued at Richmond, Virginia

RONNELL DEON GLASGOW MEMORANDUM OPINION * BY v. Record No. 2223-07-2 J UDGE RANDOLPH A. BEALES DECEMBER 9, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Catherine C. Hammond, Judge Steven D. Goodwin (Goodwin, Su tton & DuVal, P.L.C., on brief), for appellant. Karen Misbach, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.
The trial judge convicted Ronnell Deon Glasgow (appellant) of possession of a firearm by a non-violent felon, in vi olation of Code § 18.2-308.2. 1 On appeal, appellant contends that the evidence adduced at tria l was insufficient to prove beyond a reasonable doubt that he knowingly and intentionally possessed a firearm. For the reasons stated below, we reject appellant’s contention and affirm the judgment of the trial court.
I. B ACKGROUND During the daylight hours of January 20, 2007, He nrico County Police Officer T.P. Berry observed a green, four-door Ford Taurus with its right front headlight broken. Berry stopped the car and noticed four people in the car – two in the front seat, two in the back seat – as he

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant also pled guilty at trial to two counts of forg ery of a public record. Those convictions are not be fore us on appeal.- 2 - approached. Berry “scan[ned] the interior of th e car, dashboard, floorboards and . . . laps” of the occupants. He did not observe anything al arming. Berry showed the driver the broken headlight, entered the driver’s information in the computer inside his police cruiser, and walked to the Taurus to return the driv er’s identification. Be rry then observed the right rear passenger – later identified as appell ant – look over his shoulder at Berry. The two made eye contact. Berry decided to scan the car a second time and saw “the frame of a handgun” partially covered by a white tee-shirt. After the occupants were remove d from the vehicle, appellant was escorted to a police cruiser and initially identified himself as “Wallace” before fingerprint analysis revealed his true identity. DNA analysis was performed on the firearm, and a buccal swab was taken from appellant but not from the three other occupants of the Ta urus. The forensics examiner concluded that “probably more than three or more people” ha ndled the gun and that appellant “could not be eliminated as a contributor to the mixture prof ile that was present on the gun.” Based on the examiner’s statistical model, “one person in 14,000 in the Caucasian pop ulation,” “[o]ne person in 3400 in the black population,” and “one pers on in 38,000 in the Hispan ic population” could have contributed to the DNA mixtur e profile the forensics examiner detected on the firearm. Appellant’s motion to strike at the conc lusion of the Commonwealth’s evidence was summarily denied. Appellant presented no evid ence and renewed his motion to strike, arguing the Commonwealth’s case was based on appellant’ s mere proximity to the firearm and the DNA evidence was a “red herring” because it “c[oul d] not exclude up to millions of people.” The trial court denied appellant’s renewe d motion to strike and found appellant guilty, finding “the handgun was right beside him on the seat of the car, it was visible and the Defendant had to know it was there if his eyes were open.” Furthermore, the tria l court found that the DNA- 3 - evidence rendered the likelihood th at appellant did not hold the ha ndgun to be “very slight if not negligible.”
II. A NALYSIS When considering the sufficiency of the ev idence on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the tr ial established guilt beyond a reasonable doubt.’” Crowder v. Commonwealth , 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia , 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v. Commonwealth , 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must instead ask whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’” Crowder , 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc )). See also Maxwell v. Commonwealth , 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives full play to the responsibility of th e trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, an d to draw reasonable inferences from basic facts to ultimate facts.” Jackson , 443 U.S. at 319. It is unlawful for any person who has been convicted of a felony to possess knowingly and intentionally any firearm. See Code § 18.2-308.2. A conviction for the unlawful possession of a firearm can be supported exclusively by evidence of constructive possession; evidence of actual possessi on is not necessary. Rawls v. Commonwealth , 272 Va. 334, 349, 634 S.E.2d 697, 705 (2006); Walton v. Commonwealth , 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998). To establish constructiv e 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 fi rearm and that the firearm was subject to his dominion and control.” Rawls , 272 Va. at 349, 634 S.E.2d at 705; accord Walton , 255 Va. at 426, 497 S.E.2d at 872;- 4 - Drew v. Commonwealth , 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986); Powers v. Commonwealth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984); Andrews v. Commonwealth , 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). 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 po ssessed the firearm. Rawls , 272 Va. at 350, 634 S.E.2d at 705; Walton , 255 Va. at 426, 497 S.E.2d at 872; Lane v. Commonwealth , 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). Bolden v. Commonwealth , 275 Va. 144, 148, 654 S.E.2d 584, 586, cert. denied , 129 S. Ct. 284 (2008). Appellant contends that Coward v. Commonwealth , 48 Va. App. 653, 633 S.E.2d 752 (2006), a constructive drug possession case, compel s reversal. There, the officer stopped a vehicle at 3:25 a.m. after noticing the vehicle’s re ar license plate was not illuminated. White was the driver, and Coward was the front seat passe nger. The officer positioned his high beams and spotlight on the car and used his flashlight to i lluminate the interior. He did a quick scan for weapons and noticed on the console between the driver and passenge r seats a clear baggie containing what was later determined to be crac k cocaine. The officer testified that neither White nor Coward made any suspicious movements or tried to hide the cocaine as he approached the car. White informed the officer that it wa s his mother’s car and no one else had driven or been inside the car all night. Id. at 656, 633 S.E.2d at 753. In reversing Coward’s drug possession convict ion, we found that his occupancy in the vehicle was the only fact that could create an inferen ce of his knowledge of the cocaine. Id. at 658-60, 633 S.E.2d at 754-55. We noted that the case was similar to Jones v. Commonwealth , 17 Va. App. 572, 439 S.E.2d 863 (1994) (reversing a cocaine possession conviction on the basis that Jones’s occupancy in the car and proximity to the contraband alone proved insufficient to establish constructive possession), a nd distinguished Coward’s case from Brown v.- 5 - Commonwealth , 5 Va. App. 489, 364 S.E.2d 773 (1988), wh ere factors other than Brown’s proximity to the contraband were established. Coward , 48 Va. App. at 659, 633 S.E.2d at 754. Furthermore, we found it significan t that, while the officer in Coward “was able to see the baggie with illumination from his high beam headlights, spotlight, and flashlight, there was no evidence that the baggie would have been visible in the darkness of the passe nger compartment without such additional lighting.” Id. at 660, 633 S.E.2d at 755. As in Coward , we are “mindful of the standa rd of review in this case,” see id. at 657, 633 S.E.2d at 753, and a rational factfinder could have determined that cred ible evidence supported appellant’s conviction here. The evidence in this case, unlike in Coward , established significantly more than appellant’s occupancy in the vehicle and mere proximity to the firearm. First, by glancing over his shoulder at Officer Berry and making eye contact with him, appellant engaged in behavior th at the trained officer found susp icious. Although such behavior, viewed in isolation, is not necessari ly indicative of criminal behavior, see Taylor v. Commonwealth , 6 Va. App. 384, 389, 369 S.E.2d 423, 425 (1988) (holding that merely nervous behavior was insufficient to establish reasona ble, articulable suspicion under the Fourth Amendment), “it is our duty to look to that ev idence which tends to support the verdict” when the sufficiency of the evid ence is challenged on appeal, Snyder v. Commonwealth , 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961); cf. Coward , 48 Va. App. at 660, 633 S.E.2d at 754 (noting Coward exhibited no signs of guilty knowle dge). Appellant’s suspicious behavior, which caused the trained officer to make his second scan of the vehicle’s interi or, was evidence that supported the verdict. Second, appellant’s initial assumption of a false name pointed to his consciousness of guilt. See Palmer v. Commonwealth , 14 Va. App. 346, 348-49, 416 S.E.2d 52, 53 (1992) (“It is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name , and related conduct are- 6 - admissible as evidence of consciousness of guilt, and thus of guilt itself.” (emphasis added)). Third, when Officer Berry performed an additional scan of the interior of the vehicle after appellant’s behavior aroused his suspicions, the firearm was read ily observable in plain view. Unlike in Coward , no artificial illumination was required in order to see the firearm, because the traffic stop occurred during daylight hours. Fourth, the Commonwealth’s DNA evidence was probative of a finding of guilt and proper to c onsider among the totality of circumstances. See Lovitt v. Commonwealth , 260 Va. 497, 513, 537 S.E.2d 866, 877 (2000) (affirming appellant’s conviction under the totality of the circumstances when DNA evidence failed to exclude appellant, among others, as the donor). These factors are considered in addition to appellant’s close proximity to the firearm, given that it was in plai n view next to him on the seat, which in itself is a circumstance probative of possession and may be considered as anot her factor in determining whether appellant possessed the firearm. See Bolden , 275 Va. at 148, 654 S.E.2d at 586. As the evidence, when viewed in the light most favorable to the Co mmonwealth, established ap pellant’s constructive possession of the firearm on the basis of more th an appellant’s proximity to the firearm, we determine that this Court’s holding in Coward is inapplicable to this case.
III. C ONCLUSION For the foregoing reasons, we affirm the judgment of the trial court. Affirmed.