From Today's Va. Supreme Court Opinions:
Nov. 5, 2009
Open Carry of Firearm in Console of Vehicle Equals Constructive Possession for Convicted Felon
"Deputy Lampkin testified that the weapon was "in the console, between the console right beside [Smallwood's] right leg." He further described the vehicle as "small" and the gun's location as "an open console between the seats where you could just lay something, like a little section. It was small in between two bucket seats." The firearm was not concealed...
Barnett testified that she normally kept the firearm in plain view on the console because she had applied for a concealed weapon permit but had not received one. She testified that she has "always carried [the firearm] after [she] got assaulted."
Mr. Smallwood knew of the weapon's presence and not that he exercised dominion and control over the firearm." However, Smallwood misapprehends established principles of constructive possession...Smallwood argues that he "could not have exercised dominion and control over the gun when the gun was under the dominion and control of Ms. Barnett at all times." Further, Smallwood argues that "Barnett's testimony excludes the possibility of joint possession" because "Smallwood never touched or manipulated the weapon in any way."
As we noted in Ritter, the issue of constructive possession "is largely a factual one and must be established by evidence of the acts, declarations and conduct of the accused." 210 Va. at 743, 173 S.E.2d at 807. According the Commonwealth the benefit of all inferences fairly deducible from the evidence, Bolden, 275 Va. at 148, 654 S.E.2d at 586, the record clearly supports the finding that the firearm in Barnett's car was "subject to" Smallwood's dominion and control.
Both deputies described the vehicle as small. Barnett acknowledged that the firearm was "in plain view" during the entire six or seven hours in which she and Smallwood occupied the vehicle. The firearm rested on an open console "right beside [Smallwood's] right leg." In an instant, Smallwood could have had actual, exclusive possession of the firearm and Smallwood's access to the firearm was not restricted in any way. While Barnett's ownership of the firearm is relevant to the inquiry, it is not dispositive. "Possession and not ownership is the vital issue. Possession may be joint or several. Two or more persons may be in possession where each has the power of control and intends to exercise control jointly." Burnette v. Commonwealth, 194 Va. 785, 792, 75 S.E.2d 482, 487 (1953).
In a joint constructive possession case, the focus is on the "acts, statements, or conduct by the defendant or other facts and circumstances proving that the defendant was aware of the presence and character of the firearm and that the firearm was subject to his dominion and control." Bolden, 275 Va. at 148, 654 S.E.2d 586 (emphasis added). As in Bolden, here the contraband was "open and obvious to someone looking in the vehicle, and it was located in immediate proximity to where [the defendant] had been sitting." Id. at 149, 654 S.E.2d at 586."