United States v. Baker

485 F. App'x 964
Court of Appeals for the Tenth Circuit·Decided June 28, 2012·No. 11-2211·Unpublished·Cited by 1 cases

Opinion

ORDER AND JUDGMENT **

BOBBY R. BALDOCK, Circuit Judge.

Pursuant to 18 U.S.C. § 922(g), a felon may not possess either a firearm or ammunition. And, of course, for a defendant to be found guilty of this offense, the Government must prove that a defendant “possessed” the firearm or ammunition. In this case, a jury convicted Defendant Vernon Lee Baker of being a felon in possession of a firearm and ammunition. But Defendant argues the Government did not present sufficient evidence to the jury to support a finding he possessed a firearm and ammunition. Defendant appeals pursuant to 28 U.S.C. § 1291. “We review sufficiency of the evidence claims de novo, asking only whether, taking the evidence— both direct and circumstantial, together with reasonable inferences to be drawn *965 therefrom — in the light most favorable to the government, a reasonable jury could find [Defendant] guilty beyond a reasonable doubt.” United States v. Davis, 437 F.3d 989, 993 (10th Cir.2006). Applying this standard, we hold a reasonable jury could find Defendant guilty beyond a reasonable doubt and affirm.

I.

Our story begins on a June evening outside the Sandia Vista apartments in Albuquerque, New Mexico. Patricia Guereea, a resident of the apartment complex, hosted her neighbor as well as five children ranging from ages two to eleven for dinner. The children were playing on Guereca’s apartment’s balcony when, according to Guereea, she observed Defendant, who resided in the apartment across from hers, “messing around with a gun” in the apartment complex’s well-lighted parking lot. ROA vol. 4, 173, 180. Defendant, leaning on a white, older model car resembling a Buick, spoke to Guereca’s neighbor. Guereea testified the neighbor instructed Defendant to put the gun away because of the children. Guereea described the gun as “big and black.” Id. at 176. Although Guereea admitted she knew little about guns, she stated the gun was “big enough” for her to “see it and be like, whoa.” Id. At that point, Guereea and her neighbor gathered the children inside and Guereea testified Defendant placed the gun in the trunk of the white automobile and left. Id. at 177. Guereea then testified Defendant returned to the parking lot, removed the gun from the trunk, and wiped it. Id. at 179, 181. Guereea further testified Defendant handled “bullets.” Id. at 181. Guereea again made the children go inside the apartment and she called law enforcement. Id. at 179. When calling law enforcement, Guereea provided a false name because she “didn’t want any of this to come back to [her].” Id. at 183.

Two officers arrived on the scene in response to the telephone call, but the officers found no one in the parking lot. Id. at 217. One of the officers approached Defendant, who was on an apartment balcony, to ask about the ownership of the Buick. Id. at 219. As the officer spoke with Defendant, the officer observed Defendant matched the clothing description as well as the physical features of the man provided in the dispatch notification. Id. at 220. Like Guereea, Defendant provided a false name to the officers. Id. at 222. Defendant claimed ownership of the automobile, but denied having a weapon in the vehicle. Id. at 226. The officers soon discovered, however, that the automobile belonged to Defendant’s nephew. Officers asked to search the trunk. Id. at 227. Defendant denied them access to the trunk. Id. at 226. A field technician then sealed the automobile and law enforcement transported the vehicle to a secure facility until it could obtain a warrant to search the automobile. Id. at 262. Law enforcement obtained a warrant and found a loaded Mossberg shotgun in the trunk of the automobile. Id. at 265.

Law enforcement conducted a DNA analysis of the gun’s pump handle, grip area, and trigger and guard area. In addition, law enforcement swabbed four separate shotgun casings. On three of the four casings, law enforcement detected no DNA profiles. Id. at 358. On the fourth casing, law enforcement excluded Defendant as a possible contributor of the DNA. Id. at 357. As to the trigger and guard area of the gun, law enforcement also excluded Defendant as a possible contributor of the DNA. Id. at 357. The pump handle area of the gun contained too much DNA for law enforcement to make a determination whether Defendant contributed to the DNA. Id. at 363. Law enforcement, however, could not exclude Defendant as a possible contributor to the DNA on the *966 grip area of the gun. Id. at 357. Law enforcement’s forensic scientist determined that the DNA found on the grip area most likely consisted of a mixture of at least three individuals. Id. at 364. The forensic scientist next determined the DNA on the grip area most likely came from Defendant and two unknown individuals rather than three unknown individuals. Id. at 365.

At trial, a defense expert testified law enforcement should have tested Defendant’s nephew and that law enforcement should have compared the nephew’s sample to the DNA on the grip area to confirm Defendant could not be excluded as a contributor. Defendant argued the absence of his nephew’s DNA sample rendered law enforcement’s statistical analysis unreliable.

II.

The sole issue before us on appeal is whether the jury had sufficient evidence, taken in the light most favorable to the Government, to convict Defendant of being a felon in possession of a firearm. “We do not question the jury’s credibility determinations or its conclusions about the weight of the evidence.” Davis, 437 F.3d at 993. Importantly, “[t]he evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. Instead, the evidence only has to reasonably support the jury’s finding of guilt beyond a reasonable doubt.” Id.

The government must establish three elements beyond a reasonable doubt to obtain a conviction under 18 U.S.C. 922(g)(1): “(1) the defendant was previously convicted of a felony; (2) the defendant thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate commerce.” United States v. Kitchell, 653 F.3d 1206, 1228 (10th Cir.2011). At trial, defendant stipulated the first and third prongs were met. Accordingly, possession is the only prong at issue.

A.

On appeal, Defendant’s challenge to his conviction first focuses on the accuracy of law enforcement’s DNA analysis.

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