Circumstantial evidence of illegal handgun- Fairfax criminal lawyer’s view

Circumstantial evidence and direct evidence can be used by the prosecution to seek a handgun possession conviction

Circumstantial evidence is permissible for a prosecutor to seek a conviction for unlawful possession of a handgun and for possessing any other contraband. As a Fairfax criminal lawyer, I know that under Virginia law, a conviction for possessing an unlawful firearm or any other contraband “requires proof that ‘the defendant was aware of both the presence and the character of the [contraband] and that it was subject to his dominion and control… Such “proof may be shown by ‘evidence of acts, statements, or conduct of the accused or other facts or circumstances.’” Smith v. Virginia,  (Record No. 0723-19-4) (May 5, 2020) (unpublished).

The Virginia appellate courts give factfinders wide discretion to convict for alleged contraband possession whether on  circumstantial or direct evidence of culpability

Christopher Louis Smith made some good arguments to reverse his handgun possession conviction. However, his  arguments were not going to carry the day against his circumstantial evidence conviction where his advocacy did not change the trial record that Smith’s registered guest friend permitted police to search the hotel room after Smith admitted on-scene to having been involved with illegal drugs.

Police received a phone tip that Smith might be involved in prostitution activity at the motel where he was staying. Police followed Smith, determined he was driving while his operator’s license was suspended, and arrested him for that violation. Unfortunately for Smith, he then wagged his tongue to the police that “he had four or five grams of heroin under the hood of Smith’s SUV.” His circumstantial evidence case then further unfolded.

The registered hotel occupant may grant or deny a police search

Smith had been staying with a friend at a Prince William County, Virginia hotel. He told police that Ms. Carpenter was the room’s registered guest. As permitted by law, the registered guest then gave oral permission to police to search her home. As a result of the search, police found in a shoebox in the closet, a 9mm Glock 43
handgun and two 9mm Glock 43 magazines with ammunition, for their circumstantial evidence case against Smith.

Acknowledging possession of a shoebox but denying knowing its contents, do not go far in one’s criminal defense

At trial, Smith admitted that he used that shoebox for keeping personal possessions, but denied knowing that a handgun nor ammunition was kept in that box. He tried the SODDI approach — claiming that some other dude did it — and fingered the spotlight on one Dion, whom Smith claimed had access to the hotel room.  The prosecution presented store videotape footage of Smith buying bullets for a handgun not long before police arrested him.The judge at Smith’s bench trial did not buy Smiths’ testimony, and convicted Smith of unlawful firearm possession on the circumstantial evidence.

Smith’s appeal was not likely to make any traction

Smith’s sole argument on appeal is that the circumstantial evidence was insufficient to convict him for unlawful firearm possession. Smith finds the evidence sufficient against him, and leaves the trial court with the decision whether to convict Smith or not. Smith was convicted of “possession of a firearm after having been adjudicated a felon, in violation of Code § 18.2-308.2, and possession of a firearm while in possession of a Schedule I/II controlled substance, in violation of Code § 18.2-308.4.”

Fairfax criminal lawyer Jonathan L.  Katz pursues your best defense against felony, misdemeanor, and DUI prosecutions, and against protective order / assault hearings. Call 703-383-1100 to schedule a free consultation with Jon Katz about your court-pending criminal case.