United States v. Yerks

918 F.2d 1371, 1990 WL 180480
Court of Appeals for the Eighth Circuit·Decided November 21, 1990·No. No. 89-2621WM·Published·Cited by 28 cases

Opinion

MAGILL, Circuit Judge.

Troy Yerks was convicted by a jury of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and was sentenced to thirty years’ imprisonment. Yerks appeals his conviction and sentence, contending [1373] that the district court1 erred by (1) admitting other crimes evidence; (2) denying his motion for judgment of acquittal based upon insufficiency of the evidence; and (3) incorrectly applying the Sentencing Guidelines. We affirm.

I.

On April 25, 1989, officers of the Springfield, Missouri Police Department executed a search warrant at Apartment F-22 of the Briarwood Apartments complex in Springfield. The officers seized a large quantity of crack cocaine that was hidden in the tank of the toilet. Yerks arrived during the search and unlocked the apartment door with a key he had. He was arrested in the hallway outside the apartment as he attempted to flee. Yerks told the officers he had come to visit a friend and that the friend had given him the key, but then later asked one of the officers how they had found out about the apartment. As he was escorted from the apartment building, Yerks attempted to escape custody. He also yelled to his girlfriend the number combination for a safe located in her apartment, where he frequently stayed, telling her to get the money and get him out.

Other items found in Apartment F-22 included the safe’s combination, a rent receipt for April 1989 bearing one of Yerks’ aliases, an expensive stereo system, cash, and a set of triple-beam scales. The apartment contained no furniture and appeared as though it was not being used as a residence.

II.

A.

Yerks argues that the district court erred in admitting evidence that he distributed crack cocaine in the months preceding his arrest. Four witnesses testified that they repeatedly received crack from Yerks during this period. These witnesses were admitted drug users and had been promised that they would not be prosecuted for the crimes about which they testified. In addition, a Springfield police officer testified that on several occasions he had seen Yerks in a particular vehicle with two of the four witnesses and had often observed this vehicle near a house where illegal drugs were sold.

Other crimes evidence is admissible under Fed.R.Evid. 404(b) if it is (1) relevant to a material issue; (2) of crimes similar in kind and reasonably close in time to the crime charged; (3) sufficient to support a jury finding that the defendant committed the other crimes; and (4) more probative than prejudicial. United States v. Dobynes, 905 F.2d 1192, 1194-95 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990). We view Rule 404(b) as a rule of inclusion, “permitting admission of other crimes evidence unless it tends to prove only the defendant’s criminal disposition.” Id. at 1195. The district court has broad discretion in determining whether to admit such evidence, and “ ‘its decision will not be overturned unless it is clear that the evidence had no bearing upon any sof the issues involved.’ ” Id. (quoting United States v. O’Connell, 841 F.2d 1408, 1422 (8th Cir.), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 893 (1988), 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989)).

In light of these principles, we cannot say that the district court erred in admitting the evidence of prior crack cocaine distribution by Yerks. This evidence was certainly relevant to establishing that Yerks intended to distribute the crack seized in Apartment F-22. The credibility of the witnesses was for the jury to evaluate. United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir.1983). If given credence, their testimony was enough to permit a finding that Yerks had engaged in the prior distribution. We are satisfied that the other requirements for admission were also met and note that the district court properly instructed the jury several times as to the limited purposes for which [1374] the other crimes evidence could be considered.

B.

To convict Yerks of violating § 841(a)(1), the government had to prove that he knowingly possessed cocaine and had the intent to distribute it. United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988). Yerks contends that the district court should have granted his motion for judgment of acquittal because the evidence was insufficient to establish either of these elements. In reviewing this contention, we must examine the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences that may logically be drawn from the evidence. See, e.g., United States v. Adkins, 842 F.2d 210, 212 (8th Cir.1988). We may overturn the jury’s verdict “only if the evidence so viewed is such that a reasonable-minded jury must have entertained a reasonable doubt as to the government’s proof of one of the essential elements of the offense.” United States v. Noibi, 780 F.2d 1419, 1421 (8th Cir.1986) (emphasis in original). Applying this standard, we have no difficulty concluding that the district court properly denied Yerks’ motion for acquittal.

“Proof of constructive possession is sufficient to satisfy the element of knowing possession under § 841(a)(1).” Matra, 841 F.2d at 840. “A person has constructive possession of contraband if he has ‘ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.’ Id. (quoting United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984)) (emphasis added). Both the manager and the leasing agent for the Briarwood Apartments identified Yerks as the person who rented. Apartment F-22 in late March 1989. At the time of his arrest one month later, Yerks possessed the key to the apartment. This and other evidence of Yerks’ dominion over Apartment F-22 were more than adequate to establish his constructive possession of the seized crack cocaine. See United States v. Brett, 872 F.2d 1365, 1369 & n. 3 (8th Cir.) (possession of key to front door of residence sufficient to prove constructive possession of cocaine concealed therein), cert. denied, — U.S. -, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989).

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United States v. Yerks, 918 F.2d 1371, 1990 WL 180480 (8th Cir. 1990).

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