COURT OF APPEALS OF VIRGINIA
Present: Judges Humphr eys, Beales and O’Brien Argued at Norfolk, Virginia

ANDRE SMALLS MEMORANDUM OPINION * BY v. Record No. 0392-16-1 J UDGE MARY GRACE O’BRIEN JANUARY 31, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Bonnie L. Jones, Judge Charles E. Haden for appellant. Benjamin H. Katz, Assistant Attorney General (M ark R. Herring, Attorney General, on brief), for appellee.
Following a bench trial, Andre Smalls (“appellant”) was convicted of poss ession of heroin with intent to distribute, in violation of Code § 18.2-248, and possession of a firearm while in possession of heroin, in violation of Code § 18.2-308.4. Appellant asserts th e following assignment of error: The trial court erred in denying Smalls ’ motion to strike the charge of possession of a firearm while simultaneously po ssessing a controlled substance with intent to distribute, wher e the Commonwealth’s evidence failed to es tablish that Smalls wa s in possession of a working firearm or that the possessi on of the firearm was while in possession of heroin held with intent to distribute, i.e., that there was a nexus between Smalls’ possession of the controlled substance and his possession of a firearm. I. BACKGROUND On February 10, 2014 , members of the Peninsula Narcotics Enforcement Task Force were conducting surveillance on the reside nce of a known heroin dealer in Hampton. Speci al Agent Pete

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - Gallaccio testified that at appr oximately 11:00 p.m., he observed a black Cadillac pull into the driveway. The driver, later identi fied as appellant, entered the hous e and remained in side for about thirty minutes. Agent Gallaccio determined th at the vehicle was registered to appellant. When appellant returned to his vehicle, Agent Gallaccio an d members of the surveillance team followed him as he drove away. Eventually, th ey conducted a traffic st op. During the stop, a Hampton police officer arrived at the scene with his drug sni ffing dog. The dog alerted the officer to the potential presence of narcotics in the vehicle. Agent Gallaccio and Agent Edward Jones searched the car and recovered approximately five thousand do llars and a clear plastic bag containing marijuana resi due. They also found a utility bill for an apartment locate d on Tide Mill Lane, twenty yards from the st op, but appellant claimed that he did not reside there. The agents searched appella nt and discovered seven gram s of heroin, two grams of marijuana, and three thousand dollars. Appellant al so had a set of keys in his pocket. After the police determined that the keys fit the lock of the Tide Mill Lane apar tment, appellant admitted to Agent Jones that he lived at the residence. Ap pellant initially told the offi cers that the drugs they found were “all [he] had.” Howeve r, when he acknowledged that he lived at the residence he also told them “I don’t have anything in there but a gun in a drawer in my bedroom and in the closet near the dining room a set of scales and some cut.” The officers executed a search warrant at the residence. They discovered digital scales, empty glassine baggies and capsules, a spoon with heroin residue on it, and a cutting agent in a hallway closet. Agent Jones also seized a loaded .38 caliber Smith and Wesson pistol from a drawer in the master bedr oom nightstand. He testified that th e weapon was a “real gun” and not a replica. As the officers were le aving the residence, appellant told them, “[s]ee? I to ld you all I had was a gun and some scales, right?”- 3 - At the conclusion of the Commonwealth’s case, appellant made a motion to strike that was denied. He did not produce any evidence and re newed his motion to strike . The court once again denied the motion and found appe llant guilty of both offenses. II. ANALYSIS Appellant contends that the co urt erred by denying the motion to strike for three reasons: (1) the evidence was insufficient to establish th at the firearm was operab le, (2) the Commonwealth did not establish a nexus between appellant’s possessi on of heroin and his po ssession of the firearm, and (3) the evidence did not establish that appella nt constructively possesse d the firearm. Finding no error, we affirm ap pellant’s convictions. A. Standard of Review When the sufficiency of the evidence to support a conviction is challenged on appeal, we must view the evidence in the light most favorable to the Commonwealth, th e prevailing party at trial. See Riner v. Co mmonwealth, 268 Va. 296, 3 03, 601 S.E.2d 555, 558 (2004). “If there is evidence to support the convictions, the reviewin g court is not permitted to substitu te its own judgment.” Commonwealth v. Jenkins, 255 Va. 516, 52 0, 499 S.E.2d 263, 265 (1998). The issue is “whether ‘ any rational trier of fact could have found th e essential elements of the crime beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658 , 663, 588 S.E.2d 384, 387 (2003) (quoting Kelly v. Commonw ealth, 41 Va. App. 250, 257, 58 4 S.E.2d 444, 447 (2003) ( en banc )). “Therefore, under this highly deferential standard of review on appeal, ‘[t]he judgment of the trial court is presumed to be correct and w ill be reversed only upon a sh owing that it is “plainly wrong or without evidence to support it.”’” Ervin v. Comm onwealth, 57 Va. App. 495, 503, 704 S.E.2d 135, 139 (2011) (quoting Viney v. Commonwealth, 26 9 Va. 296, 299, 60 9 S.E.2d 26, 28 (2005)).- 4 - B. Operability of the Firearm Code § 18.2-308.4(C) provides that [i]t shall be unlawful for any person to possess, use, or attempt to use any pistol, shot gun, rifle, or ot her firearm . . . while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manufacture, sell, or distribute a controlled substance classified in Schedule I or Schedule II of the Drug Control Act. Appellant contends that the Comm onwealth was required to produce a certificate of analysis to establish that the firearm recove red from his nightstand was “an actual weapon capable of firing projectiles” and was oper able. We disagree. Although the statute does not define the term “firearm,” we have held that under Code § 18.2-308.4, a firearm is “an object designedor intended to expel proj ectiles by the discharge or explosion of gunpowder.” Taylor v. Commonwealth, 33 Va. App. 73 5, 737, 536 S. E.2d 922, 922 (2000). However, this Court has specifically rejected the pro posed element of operability that appellant attempts to add to the statute. See Armstrong v. Comm onwealth, 36 Va. App. 312, 322, 549 S.E.2d 641, 646 (2001) ( en banc ). In Armstrong, the C ourt considered whether the Commonwealth was required to prove operability to establish that an object is a firearm under Code § 18.2-308.2, which pr events convicted felons fr om possessing firearms. I d. at 313, 549 S.E.2d at 641-42. We held that the statute did not set fo rth an operability requirement; it merely prohibited felons from “possess[ing] any firearm.” Id. at 321, 54 9 S.E.2d at 645. “Had the legislature wished to draw a distinction between oper able and inoperable firearms, it would have done so with clear and distinct language.” Id. Similarly, in Code § 18.2-308.4, the Gene ral Assembly did not distinguish between firearms that are capable of firing, and thos e that are incapable of firing. Accordingly, “we will not apply ‘an un reasonably restrictive interpreta tion of the statute’ that would subvert the legislative intent ex pressed therein.” Armstrong v. Commonwealth, 263 Va. 573, 581,- 5 - 562 S.E.2d 139, 144 (2002) (quo ting Ansell v. Commonw ealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)). Additionally, appellant made the following statement to Ag ent Jones: “I don’t have anything . . . but a gun in a drawer in my bedroom.” Appellant’s a ssertion that he had a gun in his bedroom was competent evidence to establish that the item found in the dr awer was a functioning firearm. See Taylor, 33 Va. App. at 737, 536 S.E.2d at 922 (Com monwealth proved possession of firearm when evidence showed that defendant referred to having “a 38 in his pocket” and raised his shirt above his waist and displaye d the “silver part of what app eared to be a firearm” to an undercover police officer). Agent Jones also te stified that based on his twenty years of law enforcement experience and his knowledge of firearms, he conclude d that the loaded pistol he found in appellant’s nightstand was a “r eal gun,” not a replica. Theref ore, while operability is not a required element of the offe nse, the evidence was suff icient to establish that this particular gun was a functioning firearm. C. Nexus Between the Firearm and the Drugs Appellant contends that th e Commonwealth failed to prove simultaneous possession of the firearm in his nightstand drawer an d the drugs found in his possession . He asserts that a conviction under Code § 18.2-308.4 “i mplicitly . . . require[s] proof of a nexus between th e firearm and the drugs.” We disagree. This precise issue was addressed in Wright v. Commonwealth, 278 Va. 754, 685 S.E.2d 655 (2009). In Wright, the defendant was arrested for possession with the intent to distribute cocaine. Id. at 757, 685 S.E.2d at 656. He advised the police officers th at he had a gun and additional cocaine at his house located approximately five mile s away. Id. at 756-57, 685 S.E.2d at 656. The defendant was convicted of possessing a firearm whil e possessing cocaine with intent to distribute, in violation of Code § 18.2-308.4. Id. at 757, 685 S.E.2d at 656. Th e Supreme Court rejected- 6 - appellant’s argument that “the statute requires pr oof of a nexus between th e firearm and the drugs that the defendant actually or co nstructively possesses.” Id. at 760, 685 S.E.2d at 658 (quoting Wright v. Commonwealth, 53 Va. App. 266, 282, 670 S.E.2d 772, 780 (2009)). The Court ruled that the Commonwealth was not required to prove “t hat the firearm is in some way being used in conjunction with the unlawful drug activity or to further such ac tivity,” and held that “[i]n the absence of any statutory language supporting the requirement of a ‘nexus’ between the possession of the firearm and the illegal activity, we cannot impose such a requirement in prosecutions under this Code section.” Id. at 760-61 , 685 S.E.2d at 658. Therefore, in this case, because the statute does not require proof of a nexus between the firear m and the drugs, the court did not err in finding appellant guilty of viol ating Code § 18.2-308.4. D. Constructive Poss ession of the Firearm Finally, appellant asserts that the court erred by finding the ev idence sufficient to establish that he had constructive possession of the recovere d firearm. He argues fo r the first time on appeal that a third party might have pla ced the weapon in his bedroom ni ghtstand without his knowledge. At trial, appellant moved to stri ke the evidence based on the Co mmonwealth’s failur e to establish that the item found in the dr awer of the nightstand was anoperable firearm and the Commonwealth’s failure to show a nexus between the gun and the distribution of narcotics. He did not raise the issue of actual or co nstructive possessionof the weapon. Therefore, appellant’s argument is procedurally defaulted. Rule 5A:1 8 provides that “[n]o 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 rulin g, except for good cause shown or to enable the Court of Appeals to attain the en ds of justice.” “The purpose of this contemporaneous objection requirement is to allow the trial court a fair op portunity to resolve the issue at trial, thereby- 7 - preventing unnecessary appeals and retrials.” Creamer v. Co mmonwealth, 64 Va. App. 185, 195, 767 S.E.2d 226, 231 (2015). Further, Rule 5A:18 requires that the objection be stated with specificity. “A party will not be allowed to specify one or more grounds of objection to evidence offered in the trial court and rely upon other grounds in the ap pellate court. He is re garded as having waived all other objections to the evidence except those which he pointed out specifically.” Branch v. Commonwealth, 225 Va. 91, 96, 300 S.E.2d 758, 760 (1983) (quoting Jackson v. Chesap eake & Ohio Ry. Co ., 179 Va. 642, 650-51, 20 S.E.2d 489, 4 92 (1942)). Because appellant’s motion to strike was based solely on his claim that the gun must be operab le and a nexus must exist betwee n possession of the narcotics and possession of the weapon, we will not consider his cont ention that the Commo nwealth did not prove constructive possessio n of the weapon. For the above reasons, the ruling of the trial court is affirmed. Affirmed.