COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

LUTHER EARL BRACEY, 

 s/k/a LUTHER BRACY 

 MEMORANDUM OPINION* BY 

v. Record No. 3214-96-1 JUDGE WILLIAM H. HODGES 

 OCTOBER 28, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

E. Everett Bagnell, Judge 

 Michael D. Eberhardt for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Richard Cullen, Attorney General; 

Margaret Ann B. Walker, Assistant Attorney 

General, on brief), for appellee. 

 Luther Earl Bracey appeals from a jury verdict convicting 

him of possessing a sawed-off shotgun and possessing a firearm 

after having been convicted of a felony. He asserts that the 

evidence was insufficient to prove beyond a reasonable doubt that 

he possessed the shotgun. 

 "On appeal, we review the evidence 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 S.E.2d 415, 418 (1987). 

 So viewed, the evidence proved that on September 25, 1993, 

at approximately 4:30 a.m., Officer Harris initiated a traffic 

 

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

designated for publication. 
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stop of an automobile driven by and registered to Linwood Barns. 

 At the time of the stop, Bracey was riding on the passenger side 

of the front seat, and Harris observed no suspicious movement in 

the vehicle by either Barns or Bracey. Harris testified that, as 

soon as the car stopped, the front passenger door "flew open," 

and Bracey "jumped out of the passenger side and stepped up on 

the curb real quick." Bracey walked toward Harris, ignoring 

Harris' repeated orders to return to the car, conduct which 

Harris regarded as very unusual for a passenger during a traffic 

stop. Officer Davis arrived at the scene moments after the 

stop. While Harris spoke with Barns, Davis approached the 

passenger side of the car, where Bracey was standing. Shining 

his flashlight inside, Davis noticed the fourteen-inch barrel of 

a sawed-off shotgun extending from beneath the passenger side of 

the front seat. Davis testified that, although he could not see 

the stock or butt of the weapon, the barrel was clearly visible. 

 The car had a bench seat and the floor on the passenger side was 

separated from the driver's side by the transmission "hump." 

 "[W]here, as 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) (citation omitted). 

 "Possession [of contraband] may be actual or constructive." 

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368 
 3 

(1994) (en banc). 

 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 

[accused] was aware of both the presence and 

character of the [item] and that it was 

subject to his dominion and control." 

Hancock v. Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138, 

140 (1995) (citation omitted). "In determining whether a 

defendant constructively possessed a firearm, the defendant's 

proximity to the firearm and his occupancy and ownership of the 

vehicle must also be considered." Logan, 19 Va. App. at 444, 452 

S.E.2d at 369. Possession need not be exclusive--a defendant may 

share possession of a weapon with another. See Blake v. 

Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 220 (1993). 

 Bracey argues that Hancock supports his contention that he 

did not possess the shotgun. In Hancock, the defendant was one 

of five occupants of the vehicle in which a firearm was 

recovered. See Hancock, 21 Va. App. at 468, 465 S.E.2d at 139. 

The defendant was sitting in the back seat of the car, behind the 

driver, and the firearm was found under the driver's seat. See

id. The police officer who found the gun testified that he could 

not see the weapon until after the defendant exited the car and 

that a person would not see the gun unless he looked at the 

floorboard. See id. at 470, 465 S.E.2d at 140. 

 Here, however, Davis found the firearm only partially hidden 

beneath the seat where Bracey had been sitting. The presence of 
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the transmission hump prevented the shotgun from sliding to 

Bracey's side of the car. Only Barns and Bracey occupied the 

vehicle, and no evidence supports the hypothesis that Barns 

placed the shotgun under Bracey's seat after the stop. The 

fourteen-inch barrel of the gun was "sticking out" from under the 

seat and could be seen clearly. Harris testified that Bracey 

acted suspiciously in exiting the car, approaching the officer 

and ignoring repeated instructions to return to the vehicle. 

From such conduct, the trial court could reasonably infer that 

Bracey was aware of the shotgun, which was subject to his 

dominion and control, and was attempting to distance himself from 

it before discovery by police. 

 Accordingly, the evidence was sufficient to prove beyond a 

reasonable doubt that Bracey knowingly, constructively possessed 

the sawed-off shotgun, and we affirm the convictions. 

 Affirmed. 
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Benton, J., dissenting. 

 "We can affirm this [conviction] only if the Commonwealth 

proved beyond a reasonable doubt that [Luther Bracey] had actual 

knowledge of the presence of the firearm, i.e. 'knowingly and 

intentionally possess[ed]' the firearm." Hancock v. 

Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138, 140 (1995) 

(citations omitted). Indeed, in Hancock, a case with facts 

remarkably similar to this appeal, we stated the following well 

established principles: 

 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 

[accused] was aware of both the presence and 

character of the [item] and that it was 

subject to his dominion and control." Proof 

that the firearm "was found in . . . a 

vehicle . . . occupied by the [accused] is 

insufficient, standing alone, to prove 

constructive possession." 

Id. (citations omitted). 

 The evidence proved that Bracey had been a passenger in the 

vehicle that the police officer stopped late at night. When the 

officer approached the vehicle to look inside, he "shined [a] 

light into the floorboard which is underneath the seat [and] 

. . . observed what appeared to be the barrel of a shotgun." The 

officer testified that the barrel of the shotgun had been 

"sawed-off" and that the shotgun was lying at an angle under the 

passenger side of the front seat. Although the officer testified 

that "the only thing that was sticking out was the barrel," he 
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did not describe how much of the barrel was protruding. The 

officer also testified that the interior of the vehicle, a 

"seventies model . . . Buick," was strewn with "items in the back 

seat, in the front seat, . . . and was right dirty." 

 The evidence proved that the driver owned the vehicle. No 

evidence tended to prove that the firearm was not owned by the 

driver or that the firearm was put under the seat after Bracey 

entered the vehicle. No evidence proved how long Bracey had been 

in the vehicle. Furthermore, no evidence proved that Bracey's 

fingerprints were on the firearm, that Bracey had possessed the 

firearm, or that Bracey had ever seen the firearm. 

 Because the evidence proved that the police stopped the 

vehicle at night and discovered the firearm by shining a light in 

the vehicle, the evidence failed to prove or even permit a 

reasonable inference that Bracey could have seen the firearm. No 

testimony proved how much of the barrel was protruding beyond the 

seat or proved that the protruding portion, if any, could have 

been seen without the aid of a light. Indeed, the combination of 

the darkness and the rubble in the vehicle only allow conjecture 

whether any protruding object would have been noticed by a 

passenger. 

 As in Hancock, proof that Bracey was a passenger in the 

vehicle and, therefore, was in proximity to the firearm is not a 

sufficient basis to prove beyond a reasonable doubt that Bracey 

constructively possessed the firearm that was under the seat. 

 No evidence established that [Bracey] 
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ever held the firearm, saw it, knew it was 

present, or exercised any dominion and 

control over it. The facts established no 

more than a mere suspicion that the firearm 

was possessed by [Bracey] or that he knew the 

firearm was under the . . . 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 

[Bracey] was not sufficient to prove the 

elements of the offense beyond a reasonable 

doubt. 

21 Va. App. at 472, 465 S.E.2d at 141-42 (citations omitted). 

 Because the evidence is not "wholly consistent with guilt 

and wholly inconsistent with innocence," Scruggs v. Commonwealth, 

19 Va. App. 58, 61, 448 S.E.2d 663, 664 (1994), I dissent. I 

would reverse the convictions.