United States v. Deandre Donnell Dunklin

626 F. App'x 910
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 15, 2015
Docket14-11423
StatusUnpublished

This text of 626 F. App'x 910 (United States v. Deandre Donnell Dunklin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Deandre Donnell Dunklin, 626 F. App'x 910 (11th Cir. 2015).

Opinion

PER CURIAM:

Deandre Donnell Dunklin appeals his conviction for unlawful possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that the government’s evidence was insufficient to show that he had personal dominion over the firearm or the intent to exercise control over the firearm, because (1) no individual witnessed him holding the weapon, and (2) no circumstantial evidence placed the weapon in his physical possession. After review of the record and the parties’ briefs, we affirm.

I

On May 14, 2013, Lisa Budges saw Mr. Dunklin standing outside her apartment arguing with another man. According to Ms. Budges, Mr. Dunklin held a gun in the man’s face and said he “didn’t give a damn” and was “ready to go back to prison anyway.” Ms. Budges could not identify the type of gun Mr. Dunklin was holding.

*911 On the same night, John Stearnes, a neighbor of Ms. Budges, saw Mr. Dunklin standing on Ms. Budges’ porch. The next morning, Mr. Stearnes found that someone had broken into his shed. He saw Mr. Dunklin sitting on the hood of a red Fire-bird and reported him as a suspicious person.

Detective Ibor Sanders and Detective Roderick Shelby of the Birmingham Police Department responded to Mr. Stearnes’ call. When they arrived, Detective Sanders saw a male, later identified as Mr. Dunklin, sitting on a red Firebird. As he approached, Detective Sanders saw Mr. Dunklin take his left hand out of his pocket, reach down to the ground, “disappear[ ] for a second,” and then “raise[] up real quick.” When the detectives approached Mr. Dunklin, Detective Sanders looked down and saw a gun lying on the ground at Mr. Dunklin’s feet. Detective Shelby secured Mr. Dunklin, and Detective Sanders took the gun. Mr. Dunklin was shaking uncontrollably and told the detectives that he had “nervous conditions.”

Mr. Dunklin was indicted for possessing a firearm as a felon on May 15, 2013, the morning that he was arrested, and not for his alleged actions on Ms. Budges’ porch the night before. At Mr. Dunklin’s trial, both detectives testified that no loose ammunition was found in Mr. Dunklin’s possession and that they did not hear the sound of a gun hitting the ground when Mr. Dunklin put his left hand down. Detective Shelby admitted that it would be difficult for even a big man to conceal the shiny pistol in his hand on a sunny day. Both detectives testified that nothing else other than the gun was on the ground near Mr. Dunklin’s feet, and no other people were in the area. The detectives did not submit the gun to be dusted for fingerprints.

At the close of the government’s case, Mr. Dunklin’s counsel moved for a judgment of acquittal, asserting that the government failed to show that Mr. Dunklin had actual or constructive possession of the gun. The district court denied Mr. Dunklin’s motion. Mr. Dunklin chose not to testify, and the defense did not present any evidence. The jury found Mr. Dunklin guilty of violating 18 U.S.C. § 922(g)(1), and the district court sentenced • him to twenty-five months’ imprisonment.

II

We review the sufficiency of the evidence de novo and construe all reasonable factual inferences in favor of the jury’s verdict. See United States v. Jiminez, 564 F.3d 1280, 1284, (11th Cir.2009). Evidence is deemed sufficient to support a conviction if a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. Id. at 1484-85.

To prove that Mr. Dunklin violated § 922(g)(1), the government must show that (1) he knowingly possessed a firearm, (2) he was a convicted felon, and (3) the firearm was in or affecting interstate commerce. See United States v. Palma, 511 F.3d 1311, 1315 (11th Cir.2008). The parties stipulated that Mr. Dunklin was a convicted felon and that the firearm had traveled in interstate commerce. Therefore, the only question at issue is whether Mr. Dunklin knowingly possessed the firearm.

A

The government may satisfy § 922(g)’s possession element by proving either actual or constructive possession. United States v. Albury, 782 F.3d 1285, 1294 (11th Cir.2015). Actual possession is shown by establishing that the defendant had physical possession or personal dominion over the thing allegedly possessed. See United *912 States v. Derose, 74 F.3d 1177, 1185 (11th Cir.1996), Constructive possession exists when the defendant “exercises ownership, dominion, or control over the item or has the power and intent to exercise dominion or control.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.2006). Alternatively stated, constructive possession exists when the defendant has “knowledge of the thing possessed coupled with the ability to maintain control over it or reduce it to his physical possession.” United States v. Baldwin, 774 F.3d 711, 722 (11th Cir.2014). A defendant’s mere presence near an item is, by itself, insufficient to establish possession. See United States v. Besides, 565 F.3d 832, 841 (11th Cir.2009).

Possession may be shown through direct or circumstantial evidence. See United States v. Smith, 591 F.2d 1105, 1107 (5th Cir.1979). Circumstantial evidence of constructive possession may include that the thing allegedly possessed was in plain sight or that the defendant had ready access to it. See United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.2006) (holding that ammunition found in plain view on a table in a home where only the defendant resided was sufficient to establish constructive possession). Cf. United States v. Edwards, 166 F.3d 1362, 1364 (11th Cir.1999) (holding that the defendant did not have constructive possession of cocaine located in the locked trunk of an undercover agent’s car because the defendant did not have access to the trunk).

A defendant’s behavior may also support a finding of constructive possession. Instructive cases are United States v. DeLeon, 641 F.2d 330, 335-36 (5th Cir.1981) (holding that the defendant’s actions— talking to a fellow passenger, turning around, and looking out the back window of the car as they were pursued by narcotic agents — was evidence that he constructively possessed a bag of cocaine that was thrown from the car during the pursuit), and

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Related

United States v. Derose
74 F.3d 1177 (Eleventh Circuit, 1996)
United States v. Palma
511 F.3d 1311 (Eleventh Circuit, 2008)
United States v. Beckles
565 F.3d 832 (Eleventh Circuit, 2009)
United States v. Jiminez
564 F.3d 1280 (Eleventh Circuit, 2009)
United States v. Becaficio Saenz Deleon
641 F.2d 330 (Fifth Circuit, 1981)
United States v. Jonathan S. Edwards
166 F.3d 1362 (Eleventh Circuit, 1999)
United States v. Lineten Belizaire
774 F.3d 711 (Eleventh Circuit, 2014)
United States v. Michael Renard Albury, Jr.
782 F.3d 1285 (Eleventh Circuit, 2015)

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Bluebook (online)
626 F. App'x 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-deandre-donnell-dunklin-ca11-2015.