United States v. Ezell

53 F. App'x 21
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 12, 2002
Docket01-5217
StatusUnpublished
Cited by1 cases

This text of 53 F. App'x 21 (United States v. Ezell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Ezell, 53 F. App'x 21 (10th Cir. 2002).

Opinion

ORDER AND JUDGMENT **

BALDOCK, Circuit Judge.

A jury convicted Defendant Kenneth Royneal Ezell of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). Defendant appeals, asserting the evidence at trial was insufficient to support a finding (1) that he knowingly possessed the firearm as required for a conviction under either statutory provision; or (2) that the alleged possession of the firearm affected interstate commerce as required for a conviction under 18 U.S.C. § 922(g)(1). We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I.

On August 1, 2000, City of Tulsa police officers received a tip that Kenneth Roy *23 neal Ezell could be found in an apartment located at 1334 East 37th Street North in Tulsa, Oklahoma. Officers Derrick Alexander and Melvin Hendrix drove to the apartment to arrest Ezell on an outstanding warrant. A woman, later identified as Helen Thomas, answered the front door. Officer Alexander informed Thomas he had an outstanding arrest warrant for Ezell and asked if Ezell was in the apartment. Thomas denied Ezell was in the apartment, but agreed to allow officers to search the apartment.

Inside the living room, Officer Alexander observed a sofa next to the front door and a mattress on the floor next to the sofa. On the back of the sofa, about three feet from the mattress, he observed the butt of a shotgun wrapped in a sheet. Unwrapping the sheet, the officer observed a .20 gauge shotgun with a sawed-off barrel. The shotgun had a barrel length of fourteen inches. He also observed five shotgun shells next to the shotgun. Thomas denied having any knowledge of the shotgun or shells.

Officer Hendrix then searched the second floor of the apartment. Inside a closet, he observed that a trap door leading to the attic was slightly ajar, and that insulation from the attic had fallen on the closet shelves below the trap door. Officer Hendrix called to Officer Alexander who also examined the upstairs closet. Both officers called for Ezell but received no' response. Officer Alexander then requested and received permission from a neighbor to enter the upstairs bedroom of the adjacent apartment. In that apartment, the officer observed that the trap door had been removed inside the closet and that insulation from the attic had fallen on the clothes. Officer Alexander also observed a footprint on some clothes and noted that a shelf inside the closet was broken. The officer heard sounds of movement from the attic above the closet ceiling. The sound was moving away from the officer. The officers ordered Ezell to come down and remained on the scene. After approximately thirty minutes, Ezell emerged from the attic opening and surrendered. Ezell was not wearing a shirt or shoes, and was unarmed.

The officers arrested both Thomas and Ezell. At the police station, Ezell asked Officer Alexander how Thomas would be charged. The officer responded that Thomas would be charged with harboring a fugitive and with possession of the shotgun. Ezell immediately stated that the shotgun belonged to him and that he did not want Thomas charged with its possession. Officer Alexander informed Officer Hendrix of Ezell’s statement. Ezell then asked Officer Hendrix what he could do about “owning up to the shotgun.” Ezell later signed a waiver of rights and drafted a written statement. The statement omitted any reference to the shotgun.

At trial, Thomas testified for the government. She testified that she had dated Ezell for several years and that they lived together in Oklahoma City and Tulsa. She also testified that she had leased the Tulsa apartment where Ezell was found and that Ezell stayed in that apartment while she was in Oklahoma City. Concerning the night of the arrest, she testified that she had arrived home around midnight and found Ezell and two friends in the apartment. Shortly thereafter, she went to sleep on the mattress. She was awakened by police knocking at the front door. The two friends were no longer in the apartment. While she was answering the door, Thomas saw Ezell run upstairs. She testified that she lied to officers about Ezell’s presence in the apartment because she was afraid they would both be “in trouble.” Thomas also testified that she knew nothing about the shotgun found in the apart *24 ment and that she had never seen Ezell with a gun.

The parties stipulated to Ezell’s prior felony conviction. The parties also stipulated to evidence that (1) the gun was a “firearm” as described by federal statutory law; (2) the gun and ammunition were manufactured outside Oklahoma and were shipped or transported in interstate commerce; and (3) the shotgun was not registered to Ezell.

II.

Ezell first asserts the evidence at trial was insufficient to support a finding that he knowingly possessed a firearm. We review de novo sufficiency of evidence claims. See United States v. Vallo, 238 F.3d 1242, 1246 (10th Cir.2001). Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. at 1247. In reviewing the evidence, we do not weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury. United States v. Sanders, 240 F.3d 1279, 1281 (10th Cir.2001). We resolve any conflicts in the evidence in favor of the Government. Id.

The Government may establish possession by showing constructive possession; actual possession is not required. United States v. Hien Van Tieu, 279 F.3d 917, 922 (10th Cir.2002) (citing United States v. Heckard, 238 F.3d 1222, 1228 (10th Cir.2001)). “To establish constructive possession, the Government must show the defendant knowingly holds the power to exercise dominion or control over the firearm.” Id. (quotations and citations omitted). If the defendant has exclusive possession of the premises, knowledge and control are properly inferred. Id. If the defendant is not in exclusive possession, the Government must show a connection or nexus between the defendant and the firearm. Id. “To support a conviction for knowing possession where there is evidence of joint occupancy, the Government must offer evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon.” Id. (quotations and citations omitted).

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Related

Ezell v. United States
538 U.S. 1006 (Supreme Court, 2003)

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Bluebook (online)
53 F. App'x 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ezell-ca10-2002.