COURT OF APPEALS OF VIRGINIA
Present: Judges Beal es, Chafin and O’Brien Argued at Norfolk, Virginia

LONNIE JOE SALONE MEMORANDUM OPINION * BY v. Record No. 0956-14-1 J UDGE MARY GRACE O’BRIEN NOVEMBER 3, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Bonnie L. Jones, Judge Charles E. Haden for appellant. Victoria Johnson, Assistant At torney General (Mark R. Herring, Attorney General, on brief), for appellee.

Lonnie Salone was convicted in a bench tr ial of possession of a firearm by a violent felon, in violation of Code § 18.2-308.2. On app eal, he argues that “the trial court erred in rejecting [his] argument that the evidence was insufficient to prove beyond a reasonable doubt that [he] possessed a firearm after having been convicted of a viol ent felony, where the Commonwealth failed to demonstrate that [he] ac tually or constructivel y possessed a firearm or that he exercised any dominion and control ove r a firearm.” Finding no error, we affirm. I. BACKGROUND Virginia State Trooper Becky Curl was on her motorcycle, patrolling an area on Interstate 64 at approximately 1:30 p.m. on May 26, 2013. She observed a Dodge sedan travelling twelve miles per hour over the speed limit and further ob served that the driver was not wearing a

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - seatbelt. There were three pe ople in the car: Jamaine McKo y, the driver, Lonnie Salone (“appellant”), who was in the front passenger se at, and another individua l in the back seat. The trooper attempted to pull the car over, but the driver did not immediately stop. Rather, the driver slowed down to forty-five miles per hour a nd caused the vehicle to “[move] erratically.” During this time, the trooper noticed “some pretty obvious activity happening inside the passenger compartment of the vehicle.” She saw the driver, McKoy, reach into the back seat and put his hand under and into a large Rubbermai d container. She also observed appellant moving toward the “driver of the vehicle’s right side.” She saw him lean down twice toward the driver’s right side, near the gearshift area. After the car stopped, Trooper Curl noticed a ppellant and McKoy leaning together, “still concentrated on the center part of the vehicle.” She asked the dr iver what he put in the box in the back seat, and he responded th at he did not put anything in th e box; he took a gun out of it. Trooper Curl removed the driver from the vehicl e and found a large caliber weapon stuck in his waistband. She then removed the passenger from the back seat and secured him, and when backup arrived, she removed appellant from the fr ont seat. Trooper Curl testified that as she approached the driver’s side of the vehicle she could see a .40 caliber Glock gun on the floor “up against the console” where the driver’s right le g would have been. She also found a .38 Smith & Wesson firearm inside the closed console “that flips up where the armrest is.” Following her search of the car, Trooper Curl conducted a record check of the three occupants of the car and discovered that appellant had been convicted of a violent felony in 2009 and was therefore prohibited from possessing a firearm. Appellant told her that he was just “getting a ride” from McKoy. When the trooper as ked him if he would te ll her if the weapons were his, he responded, “[P]robably not, Miss.”- 3 - At trial, McKoy testified that he owne d the three weapons f ound in the car, and he produced receipts proving that he had purchased the firearms. He said he was giving appellant a ride and that appellant never ha ndled any of the guns and did not say anything to him about the firearms. McKoy stated that when he first entere d the car, he placed the guns in the places where they were found, before appellant got in the car. At the conclusion of the Co mmonwealth’s case, the court de nied appellant’s motion to strike. Following closing argument, the cour t noted that it did not find McKoy’s testimony credible and found that the “defendant was ma king furtive movements and exercising dominion and control of the one firearm.” Acco rdingly, the court found appellant guilty. II. ANALYSIS A. Standard of Review “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). The judgment of th e trial court is presumed to be correct and must be affirmed “unless the judgment is pl ainly wrong or without evid ence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008); see also Avent v. Commonwealth, 209 Va. 474, 164 S.E.2d 655 (1968). We are required to afford the trial court’s fi ndings of fact “the hi ghest degree of appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). The relevant inquiry is not whether we would find the defendant guilty beyond a reasonable doubt, but whether any rational trier of fact could have found th at the essential elem ents of the crime were proven beyond a reasonable doubt. Jackso n v. Virginia, 443 U.S. 307, 319 (1979). “If there is evidence to support the conviction, the re viewing court is not permitted to substitute its- 4 - judgment, even if its view of the evidence mi ght differ from the conclusions reached by the finder of fact at the trial.” Common wealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). B. Assignment of Error 1 Appellant contends that the evidence was insufficient to find him guilty beyond a reasonable doubt because the Commonwealth did not prove that he actually or constructively possessed a firearm or that he exercised any domin ion or control over a firearm. He notes that the trooper did not see him holding a firearm a nd there was no DNA, fi ngerprint, or other scientific evidence connecting him to the weapon. He argues that he was merely in close proximity to the firearm. Code § 18.2-308.2(A) provides, in relevant part , “It shall be unlawful for . . . any person who has been convicted of a felony . . . to knowi ngly and intentionally posse ss . . . any firearm.” Evidence of actual possession of the weapon is not required for a conviction. Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872 ( 1998). Possession may be actual or constructive; a convic tion may be supported solely by ev idence of constr uctive possession. Bolden, 275 Va. at 148, 654 S.E.2d at 586. To establish constructive possessi on 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 th e presence and character of the firearm and that the firearm wa s subject to his dominion and control.” Id. (quoting Rawls v. Commonwealth, 272 Va. 334, 349, 634 S.E.2d 697, 705 (2006)). Thus, the issue of whether appellant constructively posse ssed a weapon is “‘larg ely a factual one.’” Smallwood v. Commonwealth, 278 Va. 625, 631, 688 S.E.2d 154, 157 (2009) (quoting Ritter v. Commonwealth, 210 Va. 732, 743, 173 S.E.2d 799, 807 (1970)).- 5 - Constructive possession of a fi rearm requires that a defendant be aware of the “presence and character of the firearm and that the fir earm was subject to his dominion and control.” Rawls, 272 Va. at 349, 634 S.E.2d at 705. While proximity to the weapon is insufficient by itself to show knowing possession, it is a circumstan ce which may be considered in making the determination. Proximity may be “probative of possession.” Id. at 350, 634 S.E.2d at 705. In the case before us, the evidence did not establish appellant’s actual possession of the firearm. The evidence was sufficient, however, for the trial court to conclude that appellant constructively possessed the firearm, because it was subject to his dominion and control. The weapon was found on the floor of the driver’s side of the vehicle. Although Trooper Curl could not see appellant’s hands, she saw him reaching and leaning his body toward the driver’s right side, the area where the gun was found. Appellant’s access to the firearm was not restricted in
any way. Appellant asserts that becau se there was evidence that McKoy owned the gun found on the floorboard and had access to it, it was McK oy and not appellant who possessed it. However, as the Supreme Court of Virginia has made cl ear, “[p]ossession and not ownership is the vital issue. Possession may be joint or several. Tw o or more persons may be in possession where each has the power of control and intends to ex ercise control jointly.” Smallwood, 278 Va. at 631, 688 S.E.2d at 157. Appellant cites Hancock v. Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995), to support his argument. Hancock, however, is disti nguishable. In that case, Hancock was one of five occupants of a vehicle and was seated behi nd the driver’s seat. Id. at 468, 465 S.E.2d at 139. A police officer asked him to exit the vehicl e. Id. As Hancock picked up his feet, the officer saw a firearm on the floorboard under the driver ’s seat. Id. The officer testified that he- 6 - could not see the firearm until Hancock stepped out of the vehicle. Id. The trial court held that Hancock “should have known” the firearm was belo w his feet. Id. at 468-69, 465 S.E.2d at 140. This Court reversed and held that the Code requires actual knowledge of the firearm. Id. at 469, 465 S.E.2d at 140. There was no evidence that Hancock knew the weapon was under the seat; the conviction was merely based on his prox imity to the weapon. Id. at 472, 465 S.E.2d at 141. In reversing the conviction, th e Court stated that “[p]roof th at the firearm was located close to Hancock was not sufficient to prove the elem ents of the offense beyond a reasonable doubt.” Id. at 472, 465 S.E.2d at 141-42; see also Coward v. Commonwealth, 48 Va. App. 653, 633 S.E.2d 752 (2006). Here, the finding of guilt was based on mo re than appellant’s mere proximity to the contraband. The trooper observed appellant’s furtiv e movements directed toward the area of the car where the gun was found. See Adkins v. Commonwealth, 217 Va. 437, 438-39, 229 S.E.2d 869, 870 (1976) (evidence sufficient to support a conviction for constructive possession of marijuana found on driver’s floorboard of the vehi cle when the defendant was the only person in the front seat and the police offi cer, when approaching the car, sa w him move from the driver’s seat to the passenger seat); see also Clarke v. Commonw ealth, 32 Va. App. 286, 527 S.E.2d 484 (2000). The officer’s observation of appellant’ s furtive movements is evidence of appellant’s knowledge that the firearm was in the vehicl e and his constructive possession of it. Therefore, the evidence in this case wa s sufficient to establish that appellant constructively possessed the fire arm. When Trooper Curl attempted to pull the vehicle over, appellant began making furtive movements, “leani ng” and “reaching” toward the area where the firearm was found, in the well of the driver’s comp artment. These furtive movements, combined with appellant’s proximity to the firearm, were sufficient for the fact-finder to conclude that appellant constructivel y possessed the firearm.- 7 - Because we do not find that the court erre d in determining that the evidence was sufficient to find appellant guilt y of possession of a firearm after having been convicted of a violent felony, we affirm. III. CONCLUSION For the foregoing reasons, the decisi on of the trial court is affirmed. Affirmed.