COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Powell and Alston Argued at Richmond, Virginia

JOHN CALVIN TORIAN MEMORANDUM OPINION * BY v. Record No. 0893-09-2 J UDGE RANDOLPH A. BEALES MAY 11, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF HALIFAX COUNTY Charles L. McCormick, III, Judge Buddy A. Ward, Public Defender (Office of the Public Defender, on brief), for appellant. Karen Misbach, Assistant At torney General II (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
John Calvin Torian (appellant ) was convicted by the trial cour t of possession of a firearm by a convicted felon, in viol ation of Code § 18 .2-308.2. Appellant on appeal argues that the trial court erred in rejecting his affirmative defense of good faith reliance brou ght under this Court’s opinion in Miller v. Commonwealth , 25 Va. App. 727, 492 S.E.2d 482 (1997), and, therefore, the evidence was insufficient to support th e conviction. For the following reasons, we affirm.
I. B ACKGROUND On April 26, 2008, Investigators Clay and Womack responded to a call regarding a domestic disturbance at appellant’s home. Appe llant’s wife permitted the investigators to enter the home, and a gun cabinet was observable in the hallway near the living room. Both investigators could clearly see firearms on displa y through the cabinet’s glass. Appellant’s wife

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - indicated that appellant was a c onvicted felon, which the investigat ors confirmed after contacting the police dispatcher. After he was advised of his rights pursuant to Miranda v. Arizona , 384 U.S. 436 (1966), appellant indicated that the fire arms on display in the gun cabinet were his, but claimed that his probation officer had told him that he was allowe d to have guns in his house. Investigator Womack asked appellant where he kept the key to the gun cabinet. Appellant remarked that the key was probably “on top of some [cupboard]” in the kitchen. However, the key to the gun cabinet was actually on a ring of keys recovere d from appellant’s pants pocket during a search incident to arrest. The gun cabinet’s key was on the same key ring as the key to a four-wheel vehicle that appellant owned. Appellant acknowledged charging this vehicle’s battery shortly before the investigators arrived. Unlocking the gun cabinet with the key rec overed from appellant’s pants pocket, the investigators recovered the following items from the gun cabinet: five shotguns, two rifles, and one air rifle; a black bag containing three rounds of sixteen-gauge shotgun ammunition; additional shotgun ammunition of varying types on the bottom of the cabinet; and a document from the U.S. Treasury bearing appellant ’s name and social security number. 1 At trial, appellant conceded that he had been convicted of several felonies in 1986, and acknowledged that the firearms in the gun cabinet were his. He claimed that Donna Webb, his probation officer at the time of hi s felonies, advised him that he could keep his firearms “as long as I kept them locked up.” Webb did not testify at trial, and defense coun sel told the trial court that he was unable to locate her.

1 Prior to trial, the investig ators test-fired a sixteen-gauge shotgun – one of the shotguns recovered from the cabinet – w ith the corresponding ammunition. The firearm was operable.- 3 - Jonathan Thackston, a Halifax County pr obation officer since 1999, testified during appellant’s case-in-chief that the county proba tion office’s informal policy used to be that convicted felons could own a fi rearm provided that they “had no access to it.” According to Thackston, at that time the probation officers had told convicted fel ons that “[t]here could be a firearm in your home if it’s in a safe, in a gun case, whatever, somewhere locked where you don’t have the key, where you have no access to it .” (Emphasis added). On cross-examination, Thackston indicated that, although convicted felons were advised that they could own firearms under the then-existing policy, they were instructed not to possess the key to the safe or the gun cabinet where the firearms were locked. 2 In his motion to strike, appellant argued th at he was entitled to rely on Webb’s advice that appellant could own firearms as long as he “kept them under lock a nd key.” The prosecutor argued that appellant’s testimony concerning the content of Webb’s advice was not credible and was inconsistent with Thackston’s testimony. “H ere,” the prosecutor argued, “not only did the defendant have a key [to the gun cabinet], he had the key on his person.” The trial court denied appellant’s motion to strike and rejected his cl aim of good faith reliance on Webb’s advice. The trial court found that “the best evidence really is what [Webb] told him is what the policy was at the time. And that was stated by Mr. Thackston a nd . . . the key to this case is the key.”
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

2 According to Thackston, under the probati on office’s current policy, he now advises convicted felons not “to be around” firearms at all and, therefore, to “treat a firearm like it’s a bag of cocaine.”- 4 - 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. “[T]o prove a violation under the plain language of [Code § 18.2-308.2], the Commonwealth must establish nothing more than that the defendant ‘has been convicted of a felony’ and that he or she ‘ knowingly and intentionally possessed . . . any firearm.’” Branch v. Commonwealth , 42 Va. App. 665, 669, 593 S.E.2d 835, 837 (2004) (quoting Code § 18.2-308.2). Appellant concedes that he was prev iously convicted of felonies and that the firearms in the gun cabinet were his. Howe ver, he argues that his conviction under Code § 18.2-308.2 was contrary to the princi ples expressed by this Court in Miller because, he claims, he relied on the advice of his probation officer in keeping his firearms “locked up.” The affirmative defense of “good faith re liance” is available when “a defendant has reasonably relied upon affirmative assurances th at certain conduct is lawful, when those assurances are given by a public officer or body charged by law with responsibility for defining permissible conduct with respect to the offense at issue.” Miller , 25 Va. App. at 735, 492 S.E.2d at 486-87. To successfully assert this due proce ss defense, therefore, a defendant must prove three elements: 1) that he was assured that the c onduct giving rise to the conviction was lawful; 2) that the assurance was given by a “government- 5 - official,” i.e., “a public officer or body charged by law with responsibility for defining permissi ble conduct with respect to the offense at issue”; and 3) that, based on the totality of the circumstances, reliance upon th e advice was reasonable and in good faith. Branch , 42 Va. App. at 671, 593 S.E.2d at 837 (quoting Miller , 25 Va. App. at 738-39, 745, 492 S.E.2d at 488-89, 491). As “it is the defendant’s burden” to satisfy the requirement s of this affirmative defense, Branch , 42 Va. App. at 671, 593 S.E.2d at 837, it was appell ant’s burden at tria l to establish, “as a threshold matter, the legal sufficiency of the c ontent and source of the in formation received.” Miller , 25 Va. App. at 737, 492 S.E.2d at 487 (citation omitted). “With respect to content, the defense is available only where the informati on upon which the defendant has relied is an affirmative assurance that th e conduct giving rise to th e conviction is lawful.” Id. at 738, 492 S.E.2d at 487. “In the absence of such an affirm ative assurance,” therefore, “the due process concerns that the defense is designed to protect are not imp licated, and the defense fails.” Id. (citation omitted). As a threshold matter, this Court’s opinion in Miller is inapplicable to the facts of this case because, unlike here, the trial court in Miller believed the defendant’s testimony concerning the content of the information he received. Id. at 731, 492 S.E.2d at 484. Here, although the trial court apparently believed that appellant and We bb had a conversation concerning the firearms appellant owned prior to his felony convictions, the trial court clearly did not believe appellant’s testimony concerning the content of the information he received from Webb. See Rollston v. Commonwealth , 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991) (holding that the factfinder is not required to accept a witness’ testimony, but in stead is free to “rely on it in whole, in part, or reject it completely”). Instead, the trial court credited the testimony of Thackston, a Halifax County probation officer, who testified as appellant’s own witness. According to Thackston,- 6 - convicted felons were advised under the probation office’s former policy that they could keep firearms in their home – but only if they did not have access to the key used to lock the firearms. After considering both appella nt’s testimony and Thackston’s testimony, the trial court found that Webb had informed appellant of the same policy that Thackston described at trial. 3 Therefore, because appellant failed to establish that Webb assured him that keeping firearms in his home was lawful provided that he merely kept the firearms “locked up,” he failed to establish the first element of a due process defense under Miller

. See Branch , 42 Va. App. at 671, 593 S.E.2d at 837 (explaining that the firs t element of a due process defense under Miller is establishing “that [the defendant] was assured that the conduct gi ving rise to the conviction was lawful”). Accordingly, the trial court did not e rr in rejecting appellant’s affirmative defense. Furthermore, the evidence at trial amply es tablished that appellan t possessed the key to the gun cabinet. The key was retrieved from appella nt during a proper search incident to arrest, and it was attached to the same key ring that co ntained a key to a four-wheel vehicle, which appellant had used shortly before the authorities arrived. The key to the gun cabinet, therefore, was easily available to appellant. “‘The law is well established that possessi on of the means to exercise dominion [and] control over an item gives the possessor dominion [and] contro l over the item [itself].’” Wright v. Commonwealth , 53 Va. App. 266, 274, 670 S.E.2d 772, 776 (2009) (quoting Bell v. Commonwealth , 21 Va. App. 693, 698-99, 467 S.E.2d 289, 291-92 (1996) (holding that victim’s possession of keys to vehicle placed her in pos session or control of vehicle for purposes of

3 At oral argument before this Court, appellant’s counsel contended that Webb might have conveyed to appellant an earlier policy than the policy described by Thackston. However, the due process defense under Miller is an affirmative defense. When asserting an affirmative defense, “the burden is on the defendant to pr esent evidence establishing such defense to the satisfaction of the fact finder.” Riley v. Commonwealth , 277 Va. 467, 489, 675 S.E.2d 168, 175 (2009) (citing Shifflett v. Commonwealth , 221 Va. 760, 769, 274 S.E.2d 305, 310 (1981)). Here, appellant clearly failed to satisfy this burden.- 7 - carjacking statute, Code § 18.2-58.1). Appellant ’s possession of the key to the gun cabinet provided him with the means to exercise dominion and control over the fire arms contained in the gun cabinet. Moreover, in addition to the fire arms and ammunition, a U.S. Treasury document bearing appellant’s name was found in the gun ca binet. Appellant testified that, when he purchased the gun cabinet in 2007, a friend moved the firearms from a locked box to the gun cabinet. Appellant testified that the friend must have placed the U.S. Treasury document in the gun cabinet as well. However, the trial court wa s not obligated to accept this explanation, and the presence of appellant’s docum ent inside the gun cabinet furt her supports the conclusion that appellant had access to the contents inside the gun cabinet, including the firearms. See Byers v. Commonwealth , 37 Va. App. 174, 180, 554 S.E.2d 714, 716 (2001) (affirming the defendant’s conviction for being a convicted felon in possess ion of a firearm when he had knowledge of the firearm and its location and had access to it); cf. Birdsong v. Commonwealth , 37 Va. App. 603, 606, 560 S.E.2d 468, 469 (2006) (noting, in holding th at the defendant constructively possessed contraband found in a safe, that the defendant’s pa pers were found in and on top of a dresser that was positioned directly next to the safe in the defendant’s bedroom closet). Therefore, the evidence was sufficient to find that appellant, a convicted felon, constructively possessed the firearms in violation of Code § 18.2-308.2.
III. C ONCLUSION For the foregoing reasons, we affirm appellant ’s conviction for possession of a firearm by a convicted felon.

Affirmed.