United States v. Davis

27 F. App'x 592
Court of Appeals for the Sixth Circuit·Decided December 27, 2001·No. No. 00-3974·Published·Cited by 16 cases

Opinion

DAUGHTREY, Circuit Judge.

The defendant, Thomas Davis, was convicted for being a felon in possession of a firearm and sentenced to 18 months in prison. He now raises ten issues on appeal, challenging various pretrial and trial decisions of the district judge. We find no reversible error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arose from the tragic shooting of ten-year-old Tiffany Dunning by a 13-year-old neighbor, Tommy York, the son of defendant Davis. When police arrived at the scene, they knocked on the door of the home that the defendant shared with his then-girlfriend, now-wife, Andrea Boiken, who gave the officers permission to search the residence. Upon entering, the police found Tommy York hiding under the bedcovers in the master bedroom. The officers took the youth into custody before searching the immediate area and finding a shotgun under the bed. Additional investigation also uncovered the silver handgun used to kill Tiffany in the bushes in front of the home.

A short time later, the defendant returned to his home in response to a message he received at work from a family friend, alerting him to what had occurred. Detective Jack Bornfeld and Sergeant Brian Tecco each conversed with Davis, asking him if he knew how his son came to be in possession of the gun used to shoot the victim and whether the defendant knew if other guns were in the home. Davis volunteered information about the shotgun hidden under the bed, stating that the weapon had been left in the rental home by the previous tenant and that the defendant wished the firearm to be removed from the premises. The detectives did not consider the defendant a suspect in the shooting, did not place him into custody at that time, and, therefore, did not inform Davis of his rights against self-incrimination before beginning any questioning.

Approximately two months later, however, charges were lodged against Davis, eventually resulting in an indictment alleging that he was a felon in possession of firearms. During the subsequent trial for that federal offense, evidence of the police response and investigation of the shooting of Tiffany Dunning was introduced. Further testimony was offered by Deontae Wilson, a young friend of the defendant’s son, who claimed that, on a visit to the defendant’s residence prior to the fatal shooting, Davis had displayed both the shotgun and the pistol to the boys and warned them to stay away from his weapons. Other testimony was provided by Steven McMillian, a frequent visitor to a house in Davis’s neighborhood, who claimed that during an altercation several weeks before Tiffany Dunning’s death, the defendant had approached McMillian with a shotgun and threatened him with bodily harm. Other evidence offered by the prosecution included the testimony of a firearms expert who examined the weapons recovered from the defendant’s residence and who stated that the pistol had been manufactured in California and the shotgun in Massachusetts. The parties also offered a stipulation that Davis, prior to his arrest in this case, had been convicted in Ohio of a crime punishable by a term of imprisonment exceeding one year.

Defense witnesses at trial included two friends of the defendant who testified that they had never seen Davis with firearms. Andrea Boiken also testified on behalf of her husband, explaining how she had found the two guns while cleaning the house as the couple was preparing to move into it. She stated that she told Davis that she would handle the disposition of the guns [595] and that she never told the defendant where she hid them until he arrived home on the day of the shooting. Davis himself corroborated Boiken’s testimony and refuted the testimony offered by Deontae Wilson and Steve McMillian that intimated that he had handled either of the guns. Finally, he testified that, although he knew he was a convicted felon, he had continued to vote after his prior convictions and thus did not believe there were any impediments to his rights of citizenship.

Faced with the conflicting accounts of specific events offered by the prosecution and defense witnesses, the jury was forced to assess the credibility of those individuals. The jurors obviously credited the testimony offered by the prosecution witnesses and found Davis guilty of the offense with which he was charged. The district court then sentenced the defendant to 18 months in prison for his criminal act. The defendant now appeals to this court, alleging numerous legal errors in the government’s case and in certain rulings made by the district judge prior to and during trial.

DISCUSSION

1. Sentences Imposed for Underlying Ohio Convictions

Defendant Davis first contends that he should not have been charged as a felon in possession of a firearm because while felonies, by definition, are offenses involving prison terms greater than one year, his underlying Ohio convictions did not result in such sentences. Specifically, he points to the fact that he served no prison time for either his prior 1989 or his 1991 conviction. He further highlights the fact that his suspended sentence for the 1989 conviction was only six months in duration and the fact that the suspended sentence for his 1991 conviction was for only 12 months.

Contrary to Davis’s argument, however, the provisions of 18 U.S.C. § 922(g)(1) do not require that a defendant’s prior sentence involve actual prison time in excess of one year. In fact, the statutory language provides simply that it is unlawful for an individual who has been convicted of “a crime punishable by imprisonment for a term exceeding one year” to ship or transport a firearm in interstate commerce, “or possess in or affecting commerce, any firearm or ammunition.” (Emphasis added.) Davis does not, and indeed cannot, legitimately contend that the Ohio drug offenses for which he was convicted in 1989 and 1991 were not punishable by prison terms in excess of one year. Although he did not receive the lengthiest sentence permitted, the defendant was subject to being sentenced for his crimes to a prison term of up to 18 months. See O.R.C. 2929.14(A)(4) (designating the penalty for felonies of the fourth degree).

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United States v. Davis, 27 F. App'x 592 (6th Cir. 2001).

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