Commonwealth v. Mason

David W. Lannetti Circuit Court Judge

ORDER

Defendant Tory Deangelo Mason ("Mason") was found guilty, after a bench trial on March 24, 2016, of possession of a firearm by a convicted violent felon pursuant to Section 18.2-308.2 of the Code of Virginia. Mason filed a Motion to Set Aside the Verdict on June 22, 2016, claiming that the evidence at trial was insufficient to support a conviction for possession of a firearm by a convicted felon.

Now the Court—after reviewing the related briefs and the trial transcript, considering further the arguments at trial, and consulting applicable authorities—rules as follows.

Mason was the driver and only occupant of an automobile owned by a friend (the "Vehicle") when he was pulled over at approximately 11:30 a.m. on May 30, 2016, based on observed traffic infractions. (Tr. 13-16.) When the Vehicle came to a stop, Mason—without being instructed to do so—"exited the vehicle with his hands up saying, 'You got me.'" (Tr. 15, 34.) Although the two officers "tried to tell him to get back in the vehicle," Mason "just kept standing out with the driver's side door open." (Tr. 16.) Once Mason was "detained . . . and pulled... from that door jamb" by one police officer, the other officer "could clearly see in the driver's side door [panel compartment] a black firearm. Half of it was sticking out." (Tr. 17.) The handgun (the "Firearm") was not covered, and the officer testified that—from about five or six feet away—he "could clearly see the handle, the first half of the barrel." (Tr. 17, 27.) When asked to clarify whether the Firearm was visible only because the officer was looking down into the door panel compartment or because it was "exposed above the [door panel] compartment," the officer responded, "Above it. Above it. You can see in plain view with that door open and I wasn't on top of the door. I was more so towards the back seat passenger door." (Tr. 17.) The officer subsequently determined that the Firearm was loaded. (Tr. 19.) The Firearm would have been "just inches" away from Mason when he was in the driver's seat. (Tr. 27-28.) When Mason was asked whether it was his gun, he responded almost immediately and without expressing surprise that it was his girlfriend's gun and that she had left it in the Vehicle by mistake. (Tr. 18, 36.) When asked whether he was a convicted felon, Mason admitted that he was. (Id.) When Mason was taken into custody, one officer noticed a plastic bag containing marijuana hanging out of his right rear pants pocket. (Tr. 35-36.) During a search of the Vehicle incident to arrest, two bags of marijuana also were discovered. (Tr. 19-20.) Mason was arrested for, among other things, possession of a firearm by a convicted violent felon.

Mason's "girlfriend," Monique Jack, testified that: she owned the Vehicle (Tr. 43) but not the two bags of marijuana found therein (Tr. 53); she was Mason's friend, but not his girlfriend (Tr. 49); she loaned the Vehicle to Mason "to go do what he had to do" (Tr. 43); she was unaware of where Mason was going or what he would be doing (Tr. 52-53); she purchased the Firearm—a .45 caliber ACI pistol—twenty-five days prior to Mason's arrest for protection, motivated by "break-ins and robberies" in her neighborhood (Tr. 44-47); she had never fired the Firearm, which she purchased for personal protection (Tr. 55); she generally believed that it was "very important" when returning from work to take the Firearm inside her house and have it with her for "security" (Tr. 55); she inadvertently left the Firearm in the driver's door panel compartment of the Vehicle the previous evening while rushing into her house to use the restroom upon returning from work (Tr. 47); the Firearm, when in the driver's door panel compartment, extends above the top of the compartment (Tr. 53-54); she realized she left the Firearm in the Vehicle later the same night but elected not to retrieve it because "[i]t was already late and I had came [sic] in the house" (Tr. 51); she was aware that Mason was a convicted felon and therefore was not permitted to possess a firearm (Tr. 50-51, 57); she did not inform Mason that the Firearm was in the Vehicle when she allowed him to use the Vehicle (Tr. 47); and she realized sometime after Mason drove away that the Firearm was in the Vehicle, and she attempted unsuccessfully to telephone Mason to inform him of that fact (Tr. 57).

"A conviction for knowingly and intentionally possessing a firearm after having been convicted of a felony"—pursuant to Section 18.2-308.2 of the Code of Virginia—"requires proof beyond a reasonable doubt of either actual or constructive possession of the firearm." Hancock v. Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 140 (1995). The Virginia Supreme Court has stated that "[a] well-settled principle of our jurisprudence is that a conviction for unlawful possession of a firearm or controlled substance may be based solely on evidence of constructive possession." Wright v. Commonwealth, 278 Va. 754, 759, 685 S.E.2d 655, 657 (2009).

This is a constructive possession case, as there is no allegation that Mason had actual possession of the Firearm. "[T]he issue of constructive possession 'is largely a factual one and must be established by evidence of the acts, declarations and conduct of the accused.'" Smallwood v. Commonwealth, 278 Va. 625, 631, 688 S.E.2d 154, 157 (2009) (quoting Ritter v. Commonwealth, 210 Va. 732, 743, 173 S.E.2d 799, 807 (1970)).

A conviction for the unlawful possession of a firearm can be supported exclusively by evidence of constructive possession; evidence of actual possession is not necessary. To establish constructive possession of the firearm by a defendant, the Commonwealth must present evidence of 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. While the Commonwealth does not meet its burden of proof simply by showing the defendant's proximity to the firearm, it is a circumstance probative of possession and may be considered as a factor in determining whether the defendant possessed the firearm.

There is no serious contention that the Firearm was not subject to Mason's dominion and control. Mason was the only occupant of the Vehicle, and the Firearm was uncovered, easily accessible, and located only inches away from Mason while he was in the driver's seat. Mason also does not challenge that he was aware of the character of the Firearm once its presence was brought to his attention. Mason's argument to set aside the verdict instead is predicated on his contention that he was not aware of the presence of the Firearm.

The Court finds, considering the totality of the circumstances, that the Commonwealth proved, beyond a reasonable doubt, that Mason was in fact aware of the presence of the Firearm. The Court bases this conclusion on, among other things, the following facts, which were established at trial:

• The Firearm was in plain view when located in the driver's door panel compartment of the Vehicle. Ms. Jack admitted that the Firearm extended above the top of the compartment, and one police officer testified that the handle and half of the barrel of the Firearm were clearly visible from five or six feet away.
• The Firearm would have been clearly visible to Mason when he opened the Vehicle driver's door—in broad daylight—on the morning in question. Mason's physical

position upon entering the Vehicle would have provided him a vantage point from which to view the Firearm that was as good as, if not better than, that of the officer who observed the Firearm after Mason was moved from the immediate vicinity of the Vehicle.
• The Firearm was located in close proximity to Mason, i.e., only inches away, while he was driving the Vehicle.
• When pulled over by the police, Mason exited the Vehicle without being directed to do so, stood in a position that blocked the officers' view of the driver's door panel compartment, and disobeyed orders to get back into the Vehicle.
• Mason raised his hands and proclaimed "You got me" when he exited the Vehicle. Of note, it is not clear whether this "confession" referred to the traffic violations he had committed, the fact that he had marijuana on his person, the fact that there was marijuana in the Vehicle, the fact that he was driving on a suspended operator's license, or the fact that he was a convicted felon who had a firearm in his possession.
• When Mason was alerted to the presence of the Firearm in the Vehicle, which he had been driving, he expressed no surprise.
• When asked whether the Firearm found in the Vehicle was his, Mason responded, "It's my girlfriend's gun." "She left it in the car by mistake." Mason's explanation implies that he knew the Firearm was in the Vehicle—presumably based on speaking with Ms. Jack—because he otherwise would have no way of knowing the circumstances regarding how the Firearm ended up in the Vehicle. Even if Mason had said that Ms. Jack "must have left" the Firearm in the Vehicle—because she owned the automobile in which the Firearm was found—the Court finds this leap of logic,

especially when combined with a lack of surprise upon being informed of the presence of the Firearm, implausible.
• Although Mason did not relocate the Firearm when he arguably had the opportunity to do so—while the police were in chase—he also did not relocate the marijuana that was hanging out of the rear pocket of his pants;
• Having had the opportunity during trial to observe the demeanor of Ms. Jack—Mason's sole witness—and considering several unexplained inconsistencies in her testimony, the Court finds that she is not a highly credible witness for Defendant.

Based on the evidence of Mason's acts, statements, and conduct—as well as other facts and circumstances adduced at trial—the Court finds that the Commonwealth has proved, beyond a reasonable doubt, that Mason was aware of the presence and character of the Firearm and that the Firearm was subject to his dominion and control. The Court therefore finds that Mason constructively possessed the Firearm.

For the reasons stated herein, the Court DENIES Defendant's Motion to Set Aside the Verdict. Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail or email copies of this Order to all counsel of record.

IT IS SO ORDERED this 5^th day of October, 2016.

/s/_________

David W. Lannetti

Circuit Court Judge