COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued at Richmond, Virginia 

KIRK LEE LONEY 

 MEMORANDUM OPINION* BY 

v. Record No. 1147-98-2 JUDGE LARRY G. ELDER 

 MARCH 2, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James E. Kulp, Judge 

 Craig S. Cooley for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 Kirk Lee Loney (appellant) appeals from his bench trial 

conviction pursuant to Code § 18.2-308.2 for possessing a firearm 

after having been convicted of a felony. On appeal, he contends 

the evidence was insufficient to prove he constructively 

possessed the weapon. We disagree and affirm the conviction. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The 

credibility of a witness, the weight accorded the testimony, and 

the inferences to be drawn from proved facts are matters to be 

determined by the fact finder. See Long v. Commonwealth, 8 Va. 
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App. 194, 199, 379 S.E.2d 473, 476 (1989). The judgment will not 

be set aside unless it is plainly wrong or without supporting 

evidence. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). 

 Proof that appellant constructively possessed the gun found 

behind the brake pedal was sufficient to support his conviction 

for possession of a firearm by a convicted felon. See Blake v. 

Commonwealth, 15 Va. App. 706, 708-09, 427 S.E.2d 219, 220-21 

(1993) (holding that principles applicable to constructive 

possession of drugs also apply to constructive possession of 

firearm). 

 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 [contraband] and that it was 

subject to his dominion and control." 

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 

(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 

S.E.2d 739, 740 (1984)). Possession "need not always be 

exclusive. The defendant may share it with one or more." 

Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 

(1990) (en banc). Although mere proximity to the contraband is 

insufficient to establish possession, it is a factor that may be 

considered in determining whether a defendant possessed the 

contraband. See Brown v. Commonwealth, 15 Va. App. 1, 9, 421 

S.E.2d 877, 882 (1992) (en banc). Ownership or occupancy of the 
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premises on which the contraband was found is likewise a 

circumstance probative of possession. See Drew, 230 Va. at 473, 

338 S.E.2d at 845 (citing Code § 18.2-250). Thus, in resolving 

this issue, the Court must consider "the totality of the 

circumstances disclosed by the evidence." Womack v. 

Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979). 

 Circumstantial evidence of such possession is sufficient to 

support a conviction, provided it excludes every reasonable 

hypothesis of innocence. See Tucker v. Commonwealth, 18 Va. App. 

141, 143, 442 S.E.2d 419, 420 (1994). However, "[t]he 

Commonwealth need only exclude reasonable hypotheses of innocence 

that flow from the evidence, not those that spring from the 

imagination of the defendant." Hamilton v. Commonwealth, 16 Va. 

App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether an alternative 

hypothesis of innocence is reasonable is a question of fact, see

Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 

339 (1988), and, therefore, is binding on appeal unless plainly 

wrong. See Martin, 4 Va. App. at 443, 358 S.E.2d at 418. 

 The only reasonable hypothesis flowing from the evidence in 

this case is that appellant constructively possessed the firearm 

hidden behind the brake pedal. Appellant had in his actual 

possession six rounds of .22 caliber ammunition which fit the 

empty six chambers of the .22 caliber handgun. Although 

appellant gave innocent explanations for his possession of the 

ammunition, those explanations were conflicting, and the trial 

court was entitled to conclude that both explanations were lies 
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calculated to conceal appellant's guilt. See Speight v. 

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en

banc). Most importantly, however, appellant does not dispute 

that he told Officer Warren, "There is no gun in the car." Under 

the totality of the circumstances, the only reasonable response 

for an innocent person in appellant's position would have been to 

tell the officer he did not know whether a gun was in the car. 

The undisputed evidence was that appellant did not own the car, 

and appellant contended that he had been in the car only a short 

time in order to drive people home after a party. Appellant's 

testimony that he found the ammunition in the driver's seat when 

he entered the car further supports the theory that the only 

reasonable response to Officer Warren's question about the gun 

was that appellant did not know whether a weapon was in the car. 

Although appellant testified that he had forgotten finding the 

ammunition, the trial court, as the finder of fact, was entitled 

to reject this testimony and to conclude that the only reasonable 

hypothesis flowing from the remaining evidence in the record was 

that appellant constructively possessed the firearm. 

 For these reasons, we affirm appellant's conviction. 

 Affirmed.