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COURT OF APPEALS OF VIRGINIA
Present:    Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
TERRY LEE GREGORY
OPINION BY
v.                                                                   Record No.  1635-97-2   JUDGE JERE M. H. WILLIS, JR.
OCTOBER  6,  1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
R. Donald Ford, Jr., for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General  (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction in a jury trial for possession
of a firearm by a convicted felon, Code  §  18.2-308.2, Terry Lee
Gregory contends that the evidence was insufficient to prove that
he possessed a firearm.    In resolving this question, we consider
(1) whether Gregory possessed the subject item, and  (2) whether
the subject item was proved to be a firearm.    Finding no error,
we affirm the judgment of the trial court.
I.
BACKGROUND
On January  3,  1997, Detective Mooney of the Chesterfield
County Police Department executed an outstanding arrest warrant
on Gregory.    He found in Gregory's pocket a magazine loaded with
ten rounds of  .22 caliber ammunition.    Gregory told Mooney that
the weapon to which the magazine belonged was inside his trailer,
which was leased by Gregory and his wife.    After Gregory's wife




ignored Mooney's request to produce the weapon, Gregory asked her
to bring it.    She asked where the weapon was located, and Gregory
replied that it was in the closet.
Gregory's wife entered the trailer and returned with a  .22
caliber Remington Model  522 semi-automatic rifle.    The loaded
magazine found in Gregory's pocket fit into the rifle and locked
in place.    Detective Mooney testified that a magazine is in the
proper weapon if it locks into place.
II.
POSSESSION
"A conviction for knowingly and intentionally possessing a
firearm after having been convicted of a felony, see Code
§  18.2-308.2, 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).
Gregory was not in actual possession of the rifle when he was
arrested by Detective Mooney.    He contends that the evidence
failed to prove that he possessed it constructively.
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."
Id. at  469,  465 S.E.2d at  140  (quoting Powers v. Commonwealth,
227 Va.  474,  476,  316 S.E.2d  739,  740  (1984)).
Gregory concedes that he was aware of the presence and
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character of the rifle.    He argues, however, that the evidence
failed to prove that he exercised "dominion and control" over it.
One need not be found in actual possession of an item to
prove his or her dominion and control over that item.
"Circumstantial evidence of possession is sufficient to support a
conviction provided it excludes every reasonable hypothesis of
innocence."    Spivey v. Commonwealth,  23 Va. App.  715,  724,  479
S.E.2d  543,  548  (1997).1    A person's ownership or occupancy of
premises on which the subject item is found, proximity to the
item, and statements or conduct concerning the location of the
item are probative factors to be considered in determining
whether the totality of the circumstances supports a finding of
possession.    See id. at  725,  479 S.E.2d at  548; Logan v.
Commonwealth,  19 Va. App.  437,  444-45,  452 S.E.2d  364,  369  (1994)
(en banc); Burchette v. Commonwealth,  15 Va. App.  432,  435,  425
S.E.2d  81,  83  (1992); Davis v. Commonwealth,  12 Va. App.  728,
733,  406 S.E.2d  922,  924-25  (1991).
1In reviewing the sufficiency of the evidence to prove
constructive possession of a firearm by a convicted felon, we are
guided by analogous legal principles governing an accused's
constructive possession of controlled substances.    See Blake v.
Commonwealth,  15 Va. App.  706,  708,  427 S.E.2d  219,  220  (1993).
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Gregory exercised control over the trailer as a co-tenant.2
He had recently exited the trailer.    He possessed on his person
a magazine that fit the rifle.    He directed his wife to the
precise location of the rifle in their trailer and directed her
to produce it.    She complied with that direction.    Viewed in the
light most favorable to the Commonwealth, Martin v. Commonwealth,
4 Va. App.  438,  443,  358 S.E.2d  415,  418  (1987), this evidence
sufficiently supports the finding that the rifle was subject to
Gregory's dominion and control.    Thus, he knowingly and
intentionally possessed the rifle.    See Davis,  12 Va. App. at
733,  406 S.E.2d at  924-25  (finding sufficient evidence of
knowledge, and dominion and control where marijuana found in
defendant's house and he told police they could find it in the
basement).
2While Gregory and his wife were co-tenants, possession of
the trailer, as with possession of a firearm, need not be
exclusive  -- an accused may share dominion and control of the
trailer with another.    Compare Burchette,  15 Va. App. at  435,  425
S.E.2d at  84  (inference of possession of contraband located on
premises requires showing that occupant exercised dominion and
control over property and had knowledge of nature and presence of
contraband), with Blake,  15 Va. App. at  708,  427 S.E.2d at  220-21
(accused may share firearm while retaining constructive
possession); Eckhart v. Commonwealth,  222 Va.  447,  451,  281
S.E.2d  853,  855  (1981)  (occupancy as co-tenant "is a factor to be
considered with other evidence in determining whether  [the
accused] had constructive possession").
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III.
PROOF THAT THE ITEM WAS A FIREARM
Gregory further contends that the evidence failed to prove
that the Remington model  522 semi-automatic rifle was a
"firearm."3
While not defined by Code  §  18.2-308.2, a "firearm" for
purposes of this statute is any device "that propel[s] a
projectile by an explosion or discharge of gunpowder."    Jones v.
Commonwealth,  16 Va. App.  354,  356,  429 S.E.2d  615,  616  (holding
that a BB gun, which propels a projectile by pneumatic pressure,
is not a "firearm"), aff'd en banc,  17 Va. App.  233,  436 S.E.2d
192  (1993).    As we explained in Jones, "Code  §  18.2-308.2
prohibits a felon from possessing a device that has the actual
capacity to do serious harm because of its ability to expel a
projectile by the power of an explosion, and it is not concerned
with the use or display of a device that may have the appearance
of a firearm."    Id. at  357-58,  429 S.E.2d at  617.    Thus, in
determining whether an item is a "firearm," the Commonwealth must
prove two discrete elements:                                              (1) that the weapon is designed or
intended to expel projectiles by the discharge or explosion of
gunpowder, and  (2) that it is capable of doing so.
Clearly, the best method for proving that an item is a
3Code  §  18.2-308.2 provides, in relevant part, that "[i]t
shall be unlawful for  (i) any person who has been convicted of a
felony  .  .  . to knowingly and intentionally possess  .  .  . any
firearm  .  .  .                                                          ."
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firearm is presentation of direct forensic evidence of the nature
and operability of the item.    However, "[c]ircumstantial evidence
is as competent and is entitled to as much weight as direct
evidence, provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt."    Coleman v.
Commonwealth,  226 Va.  31,  53,  307 S.E.2d  864,  876  (1983).
The evidence sufficiently supports the finding that the
Remington model  522 semi-automatic rifle possessed by Gregory was
designed or intended to expel a projectile by means of a
gunpowder explosion.4    Although the Commonwealth failed to
explain how the rifle operated or to present ballistics evidence,
Detective Mooney examined the weapon and testified that it was a
.22 caliber, Remington Model  522 semi-automatic rifle.    In his
testimony, he referred to the weapon as a "firearm."    The rifle
and the loaded magazine were introduced as exhibits and were
evidence from which the jury could infer that the rifle was
designed or intended to expel projectiles by the power of
explosion of gunpowder.    Cf. Richardson v. Commonwealth,  21 Va.
App.  93,  100,  462 S.E.2d  120,  124  (1995)  (permitting inference
that object was "firearm" in prosecution under Code
§  18.2-308.2:2 where accused testified that he intended "to buy a
firearm" that was listed on a firearms transaction form as a  .38
4In his motion to strike, Gregory argued only that the
Commonwealth failed to prove that the rifle was "designed or
intended to propel a missile of any kind."    Accordingly, we do
not address whether the evidence was sufficient to prove that the
rifle could actually discharge a projectile.    See Rule  5A:18.
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caliber pistol).
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Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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