United States v. Kimbrough

101 F. App'x 608
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 15, 2004
DocketNo. 03-5341
StatusPublished
Cited by1 cases

This text of 101 F. App'x 608 (United States v. Kimbrough) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Kimbrough, 101 F. App'x 608 (6th Cir. 2004).

Opinion

PER CURIAM.

The defendant, Jason Kimbrough, appeals his conviction on a charge of being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g), challenging the sufficiency of the evidence and the district court’s decision to allow testimony about the drugs and drug paraphernalia found in his motel room at the time of his arrest. We find no reversible error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The proof in the record indicates that Memphis police officers went to a local motel to execute a search warrant issued for Room 337. The warrant indicated that a suspected drug dealer was staying in the room and described him as “five foot six, a hundred and forty pounds, bald head, goes by the name Kid ... male black ... with a tattoo on the side of his neck that said Kid.” When the officers arrived at the motel, Detective Dion Cincinelli first questioned motel manager Lee Westmoreland about the occupant of Room 337, who was shown on the motel’s records as “Jason Kimbrough.” Det. Cincinelli then asked Westmoreland to call the room and ask the [610]*610occupant to come down to the office, on the ruse that someone had accidentally hit his car in the parking lot. When Kimbrough, who was indeed in Room 337 at that time, came down to the lobby and saw the police officers, he fled out the back door but was quickly apprehended by the officers. A room key for Room 337 was found on Kimbrough’s person.

After apprehending the defendant, the officers searched Room 337 and found, among other things, a .38-caliber handgun in a closed container full of clothes that were described by Detective Cincinelli as clothing for a male. The gun was later shown to have been manufactured in Connecticut.

At trial, Kimbrough’s flaneé, Teketa Hines, testified that she had brought a container of clothes to the hotel room the morning that the warrant was executed. She said that all the items in the container, including the gun, had come from her townhouse and were in the process of being moved to an apartment where she and defendant were preparing to move in together. She claimed that the gun belonged to an old high school friend of hers and could not say how it got into the clothes container. She explained that she had planned to take that clothes container from her townhouse to the new apartment, but because she was not yet able to get the key to the new apartment and had to get to work, she had taken it and some other items to the defendant’s hotel room instead of taking them all the way back home. Hines further testified that she did not realize that the gun had gotten into the container with the clothes or she would not have taken it to the hotel room, because she knew that Kimbrough, as a convicted felon, was not supposed to have guns.

Kimbrough was subsequently indicted and convicted by a jury on one count of being a felon in possession of a firearm, and he was sentenced to 120 months in prison, followed by two years of supervised release.

DISCUSSION

We review a claim of insufficient evidence by construing all the proof in the light most favorable to the prosecution and determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Schreane, 331 F.3d 548, 560 (6th Cir.2003). Because the issue is one of legal sufficiency, we do not “independently weight ] the evidence, nor judge[] the credibility of witnesses who testified at trial.” United States v. Talley, 164 F.3d 989, 996 (6th Cir., 1999). On the other hand, evidentiary rulings are reviewed for abuse of discretion. “[I]n the context of an evidentiary ruling, abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made.” Schrand v. Federal Pacific Electric Co., 851 F.2d 152, 157 (6th Cir.1988).

In order to convict a defendant under § 922(g)(1), “the government must prove beyond a reasonable doubt: (1) that the defendant has a prior conviction for ‘a crime punishable by imprisonment for a term exceeding one year’; (2) that the defendant thereafter knowingly possessed the firearm and ammunition specified in the indictment; and (3) that the possession was in or affecting interstate commerce.” United States v. Daniel, 134 F.3d 1259, 1263 (6th Cir.1998). In this case, the defendant did not dispute the fact that he had such a prior conviction or that the gun traveled in interstate commerce. The dispute centered instead on the issue of his possession of the weapon.

[611]*611Criminal liability under § 922(g) requires proof of either actual or constructive possession, by direct or circumstantial evidence. See Schreane, 331 F.3d at 560. “[T]he government can prove a defendant’s control over firearms by showing that he has dominion over the premises in which the firearms are located.” United States v. Layne, 192 F.3d 556, 572 (6th Cir.1999).

“Actual possession exists when a tangible object is in the immediate possession or control of the party. Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973). The defense argues that in this case, the government was obligated to show that Kimbrough was aware of the presence of the firearm at issue in order to establish the possession element of § 922(g), citing an unpublished 1993 case in which we analogized § 922(g)(1) to 18 U.S.C. § 1202(a)(1). See United States v. Hatfield, 815 F.2d 1068, 1072 (6th Cir.1987) (possession element of an offense under that chapter requires knowing possession, whether actual or constructive).

The defense insists that the firearms conviction cannot stand because the prosecution failed to establish that the defendant had ever even seen the firearm and because the arresting officers had no independent knowledge that he had ever been in possession of a firearm. However, we find no authority to support either contention. As we noted earlier in this opinion, constructive possession may be shown by means of circumstantial evidence, including proof that a defendant had control over the premises in which the firearm was located. See Schreane, 331 F.3d at 560; Layne, 192 F.3d at 572. This is exactly what the prosecution was able to establish in this case. It was then up to the defendant to show that there was some innocent explanation for his constructive possession, if indeed there was one.

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