COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis, and Bray 

SEAN S. YOUNG, s/k/a 

 SEAN STERLING YOUNG 

 MEMORANDUM OPINION* BY 

v. Record No. 0562-95-3 JUDGE RICHARD S. BRAY 

 MARCH 5, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRY COUNTY 

David V. Williams, Judge 

 (Robert A. Williams; Williams, Luck & 

Williams, on brief), for appellant. 

 (James S. Gilmore, III, Attorney General; 

Margaret Ann B. Walker, Assistant Attorney 

General, on brief), for appellee. Appellee 

submitting on brief. 

 

 Sean Sterling Young (defendant) was convicted in a bench 

trial for possessing a firearm after having been convicted of a 

felony in violation of Code § 18.2-308.2(A). On appeal, 

defendant challenges the sufficiency of the evidence to support 

the conviction. We affirm the judgment of the trial court. 

 The parties are fully conversant with the record in this 

case, and we recite only those facts necessary to a disposition 

of this appeal. 

 Under familiar principles of appellate review, the evidence 

is viewed in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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S.E.2d 415, 418 (1987). The judgment of a trial court, sitting 

without a jury, is entitled to the same weight as a jury verdict 

and will be disturbed only if plainly wrong or without evidence 

to support it. Id. The credibility of a witness, the weight 

accorded the testimony, and the inferences to be drawn from 

proven facts are matters solely for the fact finder's 

determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379 

S.E.2d 473, 476 (1989). 

 As Chad Hall entered a convenience store on the evening of 

December 28, 1993, he observed defendant in the driver's seat of 

a Toyota automobile parked "over to the side near the pay 

phone."1 When Hall exited the store and proceeded toward his 

vehicle, defendant inquired, "what [he] was tripping on," the two 

exchanged "angry words," and defendant asked Hall to "follow him 

up the road." Defendant was accompanied by three passengers, two 

women seated in the rear and a man in the front. 

 Hall, anticipating a "fist fight," followed the vehicle 

operated by defendant to a nearby parking lot, stopped, and 

exited his car. The Toyota also stopped and, as Hall approached 

the car, the window on the "driver's side" "rolled down," and 

"bullets" began to "fly out of it." Hall quickly "retreated 

. . . to [his] car[,] . . . grabbed [his] gun and shot back." 

The Toyota, still operated by defendant, then quickly left the 

 

 1The evidence does not disclose that defendant was the owner 

of the vehicle. 
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area. 

 Kerri Bradley was the female passenger seated immediately 

behind defendant in the Toyota and had seen a gun "under 

[defendant's] seat, in front of [her]," while at the store. 

Gerald Norman, the male front seat passenger, had then instructed 

Bradley to "be careful and to push it back under the seat." 

Later, en route to the parking lot, Norman "reached back to get 

[the gun]," and "just held it." Once at the lot, defendant 

directed both women in the rear seat "to duck" and, thirty 

seconds to a minute thereafter, Bradley heard gunshots which 

"sounded like they were coming from the car that [she] was in." 

Bradley "glanced up," saw a "gun sticking out of the driver's 

side window" and "ducked back down." She was unable to identify 

the person holding the gun, but testified that "it looked like" 

defendant. 

 Code § 18.2-308.2(A) provides that "[i]t shall be unlawful 

for . . . any person who has been convicted of a felony2

 . . . to 

knowingly and intentionally possess . . . any firearm." Either 

actual or constructive possession constitutes a violation of the 

statue. Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427 

S.E.2d 219, 220-21 (1993). In assessing the sufficiency of 

evidence to establish constructive possession of a firearm, we 

are guided by those principles which govern such possession of 

controlled substances. Id. at 708, 427 S.E.2d at 220. 

 

 2Defendant's prior felony conviction was undisputed. 
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 "'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."'" 

"While proximity to a controlled substance is 

insufficient alone to establish possession, 

it is a factor to consider when determining 

whether the accused constructively possessed 

drugs." 

Pemberton v. Commonwealth, 17 Va. App. 651, 654, 440 S.E.2d 420, 

422 (1994) (citations omitted). It is not necessary that 

possession "'always be exclusive. The defendant may share it 

with one or more.'" Blake, 15 Va. App. at 708, 427 S.E.2d at 

220-21 (citation omitted). 

 Here, defendant was the operator of the vehicle, and the gun 

was initially hidden beneath his seat. After exchanging "angry 

words" with Hall, defendant asked Hall to "follow him up the 

road" and proceeded to the parking area where both vehicles 

stopped. Meanwhile, Norman had taken actual possession of the 

firearm. Immediately prior to the gunfire, defendant directed 

the women in the rear seat "to duck." The driver's window was 

lowered, and "bullets fl[ew] out." The weapon was observed 

"sticking out of the driver's side window," while Norman remained 

in the passenger seat. Assuming, without deciding, that such 

evidence failed to sufficiently prove defendant's actual 

possession of the firearm, the record clearly established that he 

was aware of its presence and character, sharing its dominion and 
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control with Norman while the weapon was employed incidental to a 

confrontation initiated and pursued by defendant. Defendant, 

therefore, constructively possessed the firearm. See id. at 709, 

427 S.E.2d at 221. 

 Accordingly, we affirm the conviction. 

 Affirmed. 
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BENTON, J., dissenting. 

 "[W]here . . . a conviction is based on circumstantial 

evidence, 'all necessary circumstances proved must be consistent 

with guilt and inconsistent with innocence and exclude every 

reasonable hypothesis of innocence.'" Garland v. Commonwealth, 

225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. 

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). 

"Suspicion, however, no matter how strong, is insufficient to 

sustain a criminal conviction." Stover v. Commonwealth, 222 Va. 

618, 624, 283 S.E.2d 194, 197 (1981). 

 The evidence proved that the accused was driving an 

automobile with three passengers. No evidence proved that the 

automobile belonged to the accused or that the accused knew of 

the gun's presence on the floor. The evidence failed to prove 

that the accused ever touched the gun. 

 The evidence proved that the passengers sitting on the rear 

seat behind the driver saw a gun on the floor board. The gun 

apparently was located near the rear of the driver's seat. When 

the passenger mentioned the presence of the gun, Gerald Norman, 

who was sitting on the front seat told the passenger to "stick it 

up under the seat." 

 The evidence proved only that Norman had prior knowledge 

that the gun was in the automobile. The evidence also proved 

that Norman reached under the seat to retrieve the gun and was 

the only person in the car that handled the gun. Norman was 
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holding the gun when several men approached the automobile and 

the accused said "duck." No evidence proved that Norman was not 

the person who fired the gun. 

 Ruling that the evidence in Hancock v. Commonwealth, 21 Va. 

App. 466, 465 S.E.2d 138 (1995), was insufficient to prove 

constructive possession, we said: 

 No evidence established that [the accused] 

ever held the firearm, saw it [before it was 

discharged], knew it was present, or 

exercised any dominion and control over it. 

The facts established no more than a mere 

suspicion . . . that he knew the firearm was 

under the driver's seat. The evidence must 

rise beyond "the realm of probability and 

supposition." "'Circumstances of suspicion, 

no matter how grave or strong, are not proof 

of guilt sufficient to support a [guilty] 

verdict . . . beyond a reasonable doubt.'" 

Proof that the firearm was located close to 

[the accused] was not sufficient to prove the 

elements of the offense beyond a reasonable 

doubt. 

Id. at 472, 465 S.E.2d at 141-42 (citations omitted). As in 

Hancock, this evidence in this case failed to prove that the 

accused had prior knowledge of the presence of the gun in the car 

and failed to prove that the gun was "subject to his dominion and 

control." Garland, 225 Va. at 184, 300 S.E.2d 784. Thus, I 

would hold that the evidence failed to prove beyond a reasonable 

doubt that the accused constructively possessed the gun.