United States v. Vanhook

F I L E D
United States Court of Appeals
Tenth Circuit
MAY 4 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-2000
(D. New Mexico)
QUINCY LAMONT VANHOOK, (D.Ct. No. CR-03-420 MV)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, Circuit Judge, PORFILIO, Senior Circuit Judge, and
McCONNELL, Circuit Judge.
Defendant Quincy Vanhook was convicted by a jury of one count of
conspiracy to possess with intent to distribute five grams and more of crack
cocaine, 1 three counts of possession with intent to distribute less than five grams
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
1
Although the penalty statute applicable to Vanhook’s conspiracy conviction
states “five grams or more” of crack cocaine, see 21 U.S.C. § 841(b)(1)(B) (emphasis
added), his indictment specifically stated “five grams and more.” (R. Vol. II at 4; Vol. VI
at 236) (emphasis added). Throughout this decision, we will remain consistent with the
of crack cocaine and one count of being a felon in possession of a firearm. He
challenges his conspiracy and felon in possession convictions based on
insufficiency of the evidence. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I. Background
On September 3, 2002, Nick Jimenez, an undercover narcotics officer with
the New Mexico State Police, went to Soleil Sligh’s home in Hobbs, New Mexico,
to purchase crack cocaine. 2 Sligh lived with her boyfriend, Brandon Frazier, and
Vanhook. 3 Vanhook answered the door and asked Jimenez what he wanted.
Jimenez stated he wanted to purchase a “C note,” referring to $100 worth of crack
cocaine. Vanhook turned to Sligh and said “Well, we can go half on that, . . .”
(R. Vol. V at 58.) Vanhook pulled a plastic baggy from his pocket and retrieved
three rocks of crack cocaine. Jimenez testified four or five rocks of crack cocaine
remained in Vanhook’s baggy, which he estimated weighed approximately one
gram. Sligh went to her bedroom and returned with three rocks of crack cocaine.
Sligh then provided all six rocks (the three rocks from Vanhook and her three
indictment.
2
Jimenez had previously purchased drugs from Sligh. Sligh’s nickname was “Le
Le.”
3
Sligh and her boyfriend shared her bedroom. Vanhook, also known as “Quincy
Walker” or “Q,” slept on the couch in the living room. Vanhook moved in with Sligh in
July 2002 and lived there until the end of September 2002.
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rocks), weighing 1.15 grams, to Jimenez.
The next day, Jimenez returned to Sligh’s residence to purchase more crack
cocaine. Sligh was not home. Vanhook agreed to sell Jimenez another $100
worth of crack cocaine. Vanhook removed some crack cocaine from a baggy and
gave it to Jimenez. The crack cocaine provided to Jimenez weighed 1.27 grams.
Jimenez testified three or four rocks of crack cocaine remained in the baggy and
estimated their weight at less than a gram, “[p]robably about half a gram.” (R.
Vol. V at 63-64.)
On September 16, 2002, the Lea County Drug Task Force executed a search
warrant at a home belonging to a Kena Wright. Weston Lauder, a drug dealer
from California, was present at the time of the search. At the home, officers
discovered nearly two pounds of powder and crack cocaine and approximately
$15,000. During her interview with police, Wright identified the names of other
drug dealers in the Hobbs area, including Vanhook and Sligh. The officers
already knew where Vanhook and Sligh were living based on prior intelligence
and were aware that the New Mexico State Police had been conducting
undercover operations at their residence.
On September 17, 2002, Jimenez returned to Sligh’s residence to purchase
crack cocaine. Vanhook retrieved five rocks of crack cocaine, weighing .85
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grams, from a baggy and sold them to Jimenez for $100. 4 Jimenez testified
approximately five rocks of crack cocaine remained in the baggy, weighing
“probably [] a little over a gram.” (Id. at 67.)
Later that same day, Jimenez and other officers executed a search warrant
at Sligh’s residence. Officers discovered scales and a baggy containing white
residue, later determined to be cocaine. The baggy was found in a second
unfurnished bedroom among clothes laying in an open suitcase. Also in the
suitcase was a bus ticket issued to “Quincy Walker.” They also found two
handguns (a Smith & Wesson .22 caliber revolver and a Bersa Thunder .380
caliber semi-automatic handgun) inside a dresser in Sligh’s bedroom and a loaded
handgun (a Makaraov 9 X 19 semi-automatic handgun) in the living room under
the cushions of a loveseat sofa. All three weapons belonged to Sligh.
Vanhook and Sligh were eventually arrested. On July 1, 2003, Vanhook was
charged in a second superseding indictment with (1) conspiracy to possess with
intent to distribute five grams and more of a mixture and substance containing
cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and
846 (Count I); (2) three counts of possession with intent to distribute less than five
4
Forensic scientist Eric Young testified that the five rocks sold to Jimenez on
September 17, 2002, were initially tested by a different chemist, Cheyenne Klein. She
recorded their weight as .94 grams. When Young tested them, they weighed .85 grams.
He stated the reason for the discrepancy was that in order to test the substance, Klein had
to use a certain amount of it.
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grams of a mixture and substance containing cocaine base (crack cocaine) in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts II-IV); (3) being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2) (Count
V) and (4) possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1) (Count VI). 5 Upon the government’s motion,
Count VI was dismissed prior to trial.
On July 29, 2003, trial began before the Honorable William F. Downes, who
was visiting from the District of Wyoming. The next day, the jury returned a guilty
verdict on all five counts. On December 4, 2003, the Honorable John Edwards
Conway sentenced Vanhook to 120 months imprisonment, the mandatory minimum
sentence for Count I. 6 See 21 U.S.C. § 841(b)(1)(B)(iii). This appeal followed.
Vanhook’s appeal challenges only his convictions on Counts I and V.
II. Standard of Review
“We review de novo whether the prosecution presented sufficient evidence to
support a conviction.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.
2002). “In conducting this review . . . we ask whether, taking the evidence--both
5
Sligh was also charged with various drug and firearm offenses. She pled guilty
pursuant to a plea agreement. See infra note 11.
6
The district court imposed concurrent 120-month sentences on each count
(Counts I-V). Based on an offense level of 28 and a criminal history category of IV,
Vanhook’s guideline range was 110-137 months. However, because Count I’s mandatory
minimum sentence was 120 months, the applicable guideline range became 120-137
months.
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direct and circumstantial, together with the reasonable inferences to be drawn
therefrom--in the light most favorable to the government, a reasonable jury could
find the defendant guilty beyond a reasonable doubt.” Id. (quotations omitted). We
will not re-weigh the evidence or assess the credibility of witnesses. Id. Under this
standard, “[w]e will not reverse a conviction . . . unless no rational trier of fact
could have reached the disputed verdict.” United States v. Wilson, 182 F.3d 737,
742 (10th Cir. 1999). “The evidence necessary to support a verdict need not
conclusively exclude every other reasonable hypothesis and need not negate all
possibilities except guilt. Instead, the evidence only has to reasonably support the
jury’s finding of guilt beyond a reasonable doubt.” Id. (citations and quotations
omitted). If we conclude the evidence presented was insufficient to sustain a
conviction, retrial is prohibited. Id.III. Discussion
A. Conspiracy Conviction
Vanhook claims the evidence was insufficient to support the jury’s verdict
that he conspired to possess with intent to distribute five grams and more of crack
cocaine and, as a result, the 120-month mandatory minimum sentence should not
have been imposed. He contends the total amount of crack cocaine seized was 3.27
grams--the sum of crack cocaine sold to Jimenez. Although Jimenez testified
concerning crack “residue” in Vanhook’s baggy, Vanhook argues this “residue”
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could not weigh 1.73 grams, 7 the amount necessary to reach the five grams required
to support his conviction and 120-month sentence. He states Jimenez’s testimony
concerning the amount of this “residue” is entitled to no weight because (1) Jimenez
stated he did not get a good look at it, (2) Jimenez’s estimate concerning the
residue’s weight was a “guess,” and (3) Jimenez admitted it is difficult to estimate
the weight of crack cocaine by sight due to the air contained within it. Additionally,
Vanhook argues Jimenez conceded the “residue” could have been smoked by
Vanhook or sold to Jimenez in a subsequent transaction.
Vanhook also attacks the government’s other source of establishing the amount
of crack cocaine involved--Sligh’s testimony. He alleges Sligh’s testimony was
unreliable and incredible based on her admission she was addicted to drugs, 8 her
extensive criminal history, 9 her lying to police officers at the time of her arrest, 10 and
In his brief, Vanhook states it is impossible the residue weighed 1.83 grams.
7
Vanhook’s math is inaccurate; the correct amount to reach five grams is 1.73 grams.
8
Sligh testified she was addicted to powder cocaine. She also testified she had
used methamphetamine, ecstasy, crack cocaine, LSD and mushrooms. She stated her
drugs of choice were marijuana and cocaine. She admitted on the stand she was unable to
recall any drug transaction with an undercover officer because she was “probably
intoxicated with drugs.” (R. Vol. V at 106.)
9
From 1997 to 2000, Sligh was convicted of receiving stolen property, possession
of a controlled substance, carrying a concealed weapon and possession of crack cocaine.
She also had four convictions for possession of less than one ounce of marijuana.
10
Sligh admitted that at the time of her arrest she told the officers she was
“Monique Harris” because she was “scared” and did not want the officers to know she
had a prior probation violation in California. (R. Vol. V at 122.)
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her entering into a plea agreement with the government based on her cooperation. 11 He
also points out that her testimony concerning the number of drug transactions she
participated in with Vanhook was vague and contradictory. Notably, Sligh initially
testified she “went halves” 12 with Vanhook on $100 sales “[n]ot very many[,] [m]aybe
10 to 15 times” (R. Vol. V at 108 (emphasis added)) but seconds later her testimony
changed to “[a]bout four times.” 13 (Id. at 109 (emphasis added).) He further points to
her testimony concerning the number of times she “went halves” with Vanhook on $50
sales (“Maybe five. I don’t remember.”) and $40 sales (“About six times, five to six
times.”). (Id. at 110 (emphasis added).)
In response, the government contends that in a conspiracy, a defendant is
accountable for that drug quantity which was within the scope of the agreement and
11
Sligh pled guilty to three counts: (1) conspiracy to posses with intent to
distribute five grams and more of a mixture and substance containing cocaine base (crack
cocaine), (2) being a felon in possession of a firearm and (3) possession of a firearm in
furtherance of a drug trafficking crime. Based on these charges, Sligh faced at least a
fifteen year sentence. Pursuant to the plea agreement, Sligh agreed to tell the truth
concerning not only this case but also in de-briefings concerning other individuals. In
exchange, the government agreed to move for a downward departure for substantial
assistance; whether to do so remained within the government’s sole discretion.
Ultimately, however, it was the judge who would determine whether the motion would be
granted. The jury heard all of this information.
12
The term “went halves” means Sligh and Vanhook both provided drugs to the
purchaser and split the proceeds.
13
Although the government was questioning Sligh concerning $100 sales when it
initially asked her how many times she and Vanhook “went halves,” it appears her
statement “[n]ot very many[,] [m]aybe 10 to 15 times” was actually the number of times
she and Vanhook split sales altogether, not just on $100 sales. (R. Vol. V at 108.)
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reasonably foreseeable to him or her. It maintains the evidence at trial demonstrated
Vanhook conspired with Sligh to possess with intent to distribute more than five grams
of crack cocaine. It points to the three sales Vanhook made to Jimenez, which involved
a total of 3.27 grams of crack cocaine, and Jimenez’s testimony that after each sale,
Vanhook retained crack cocaine in his possession. The government also asserts the
evidence showed that Sligh purchased nine ounces of crack cocaine and nine ounces of
powder cocaine from Weston Lauder, 14 prepared crack cocaine at her home, and sold
crack cocaine “[a]ll day, until it was gone.” (Id. at 106.) Additionally, Sligh testified
that if either she or Vanhook was not home at the time someone came to purchase crack
cocaine, the other one would sell it and if both of them were at home, they sometimes
“went halves” on sales. Sligh testified that she estimated she split the proceeds with
Vanhook four times on crack cocaine sales for $100 (each sale involving one gram of
crack cocaine), five times on crack cocaine sales for $50 (each sale involving a half
gram of crack cocaine) and five or six times on crack cocaine sales for $40 (each sale
involving a third of a gram of crack cocaine). Based on these estimates, Sligh testified
she and Vanhook “went halves” on sales totaling eight grams of crack cocaine. Based
14
We conclude the government cannot rely on Sligh’s purchases from Lauder.
Sligh testified she bought the nine ounces of crack cocaine and nine ounces of powder
cocaine from Lauder in early 2002. She specifically testified Vanhook had nothing to do
with that purchase. She also testified she went to California and purchased four and a
half ounces of crack cocaine from Lauder. However, the government never established
when this purchase occurred.
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on the above, the government argues the evidence, viewed in the light most favorable
to it, was sufficient to support the jury’s verdict on Count I.
In order to establish a conspiracy, the government must prove “(1) an agreement
with another person to violate the law, (2) knowledge of the essential objectives of the
conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the
alleged conspirators.” United States v. Dozal, 173 F.3d 787, 797 (10th Cir. 1999)
(quotations omitted). Vanhook challenges only the second element, i.e. whether there
was sufficient evidence demonstrating that he conspired to possess with intent to
distribute five grams and more of crack cocaine. In other words, Vanhook does not
contest there was an agreement between him and Sligh to possess with intent to
distribute crack cocaine; his sole argument is that there was insufficient evidence
demonstrating that the quantity involved was five grams and more of crack cocaine.
We disagree.
The government presented testimony from two witnesses, Sligh and Officer
Jimenez, concerning quantity. Whether viewed in isolation or collectively, these
witnesses testified that the amount of crack cocaine involved in the conspiracy was five
and more grams.
Sligh testified that she estimated she “went halves” with Vanhook on eight grams
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of crack cocaine. 15 She also testified she prepared crack cocaine at her home and
would sell it “[a]ll day, until it was gone” and would sometimes give it to Vanhook.
(R. Vol V at 106.) Jimenez testified he bought 3.27 grams of crack cocaine from
Vanhook and/or Sligh. He also testified that each time he bought crack cocaine from
Vanhook, crack cocaine remained in Vanhook’s baggy. Although Vanhook attempts to
characterize this remaining crack cocaine as “residue,” Jimenez testified that “rocks” of
crack cocaine remained. (Id. at 63-64, 66.) He estimated that after each of the three
sales, the remaining crack cocaine weighed about one gram, a half a gram and more
than one gram, respectively, for a total of approximately 2.5 grams. When added to the
3.27 grams sold to Jimenez, the total amount of crack cocaine witnessed by Jimenez
was 5.77 grams.
Although Vanhook challenges Sligh’s and Jimenez’s testimony on several
grounds, all of these arguments were presented to the jury and apparently rejected. 16
Vanhook is essentially asking us to re-weigh Sligh’s credibility and re-assess the
15
Specifically, Sligh testified she and Vanhook “went halves” ten to fifteen times.
She stated she went halves with him about four times on a $100 sale for a total of
approximately four grams, five times on a $50 sale for a total of approximately 2.5 grams
and five times on a $40 sale for a total of approximately 1.5 grams.
16
Notably, the district court provided the following instruction to the jury:
Soleil Sligh has testified that she has abused drugs. The testimony of a drug
abuser must be examined and weighed by the jury with greater care than the
testimony of a witness who does not abuse drugs.
(R. Vol. VI at 235.)
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weight to be given Jimenez’s testimony. This we cannot do. See Avery, 295 F.3d at
1177 (“During [our] review [of an insufficiency of the evidence claim], we will not
assess witness credibility or re-weigh the evidence presented to the jury.”); United
States v. Youngpeter, 986 F.2d 349, 352-53 (10th Cir. 1993) (“[I]t is for the jury to
decide which witnesses to believe and which not. Once the jury has spoken, this court
may not reweigh the credibility of the witnesses.”); Grubbs v. Hannigan, 982 F.2d
1483, 1487 (10th Cir. 1993) (“[We must] accept the jury’s resolution of the evidence as
long as it is within the bounds of reason.”).
Based on the above, there was sufficient evidence presented to the jury to
support its verdict on Count I and, consequently, the district court’s imposition of a
120-month sentence. 17
B. Felon in Possession Conviction
Vanhook also claims the evidence was insufficient to support his felon in
possession of a firearm conviction. Because there was no evidence Vanhook actually
17
Although acknowledging that his 120-month sentence falls within the statutory
maximum for conspiracy to possess with intent to distribute five grams and more of crack
cocaine, Vanhook argues Apprendi principles require the facts which trigger the
application of a statutory minimum be determined by a jury beyond a reasonable doubt.
See Apprendi v. New Jersey, 530 U.S. 466 (2000). The government argues Apprendi does
not apply because the district court sentenced him based on the jury’s verdict. The
government is correct. The sentencing judge made no findings concerning Vanhook’s
sentence and Vanhook admitted so at oral argument. The sentence Vanhook received was
based entirely on the jury’s verdict, which specifically found him guilty of conspiracy to
possess with intent to distribute five grams and more of crack cocaine. No Sixth
Amendment violation occurred.
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possessed any of the three firearms found at Sligh’s residence, Vanhook contends the
government had to show he constructively possessed one of the firearms. He contends
the government failed to do so. He asserts the evidence at trial unambiguously
demonstrated that the three firearms were found in Sligh’s residence and belonged to
her. He also points out that two of the firearms were hidden in a dresser in Sligh’s
bedroom where she slept with her boyfriend and the third was found hidden within a
loveseat sofa in the living room, not the couch on which he slept. None of the firearms
had his fingerprints on them and none of the evidence showed beyond a reasonable
doubt that he knew of the hidden firearms or had access to them. Even assuming he
exercised dominion or control over the living room where he slept, Vanhook contends
such evidence is insufficient in a joint occupancy case. Additionally, although Sligh
testified Vanhook “maybe, like one time” might have borrowed one of the guns,
Vanhook asserts this evidence shows, at most, that he “maybe” borrowed one of the
guns at some unspecified time. He states this testimony is too vague and ambiguous to
support his conviction. (R. Vol. V at 104-05.)
The government contends it presented sufficient evidence demonstrating
Vanhook constructively possessed at least one of the three weapons found in Sligh’s
home. The government argues Vanhook was aware of the guns in the home. It points
to Sligh’s testimony that although Vanhook “didn’t really mess with the guns,”
Vanhook played with the guns and once took one of the guns out of the house. (R. Vol.
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V at 104.) It also contends Vanhook had access to the guns because he lived in the
house and slept in the same room where one of the guns was hidden.
To obtain a conviction under 18 U.S.C. § 922(g)(1) for possession of a firearm
by a felon, the government has to prove beyond a reasonable doubt that (1) the
defendant was convicted of a felony; (2) the defendant thereafter knowingly possessed
a firearm; and (3) the possession was in or affecting interstate commerce. United
States v. Wilson, 107 F.3d 774, 779 (10th Cir. 1997). Vanhook challenges only the
second element. 18
Proof of actual possession is not required to support a conviction under §
922(g)(1); constructive possession is sufficient. Id. In order for an individual to
constructively possess property, he must knowingly have the power to exercise
dominion or control over it.” United States v. Lopez, 372 F.3d 1212 (10th Cir. 2004). 19
Constructive possession may be shown by circumstantial evidence but the government
must show that there was a sufficient nexus between the accused and the contraband.
Id. at 882. Constructive possession need not be exclusive and may be joint among
18
Vanhook and the government entered into a stipulation that Vanhook had a prior
felony conviction and that the three firearms discovered in Sligh’s home traveled at some
time from one state to another, thereby affecting interstate commerce. This stipulation
was read to the jury.
19
Both Vanhook and the government misstate the constructive possession rule as
requiring that the defendant have ownership, dominion or control over the object and the
premises where it is found. Control or dominion over the premises where the object is
found is a factor, but not a requirement, for finding constructive possession. See United
States v. Lopez, 372 F.3d 1207, 1213 (10th Cir. 2004).
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several individuals. Id.; United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.
1982).
A defendant’s exclusive control over the premises where contraband is found
may support an inference of constructive possession. United States v. Valadez-
Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998). However, “[i]n cases involving joint
occupancy of a place where contraband is found, mere control or dominion over the
place in which the contraband is found is not enough to establish constructive
possession.” United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000).
Rather, “the government is required to present direct or circumstantial evidence to
show some connection or nexus individually linking the defendant to the contraband.”
Id. (quotations omitted). It must present “some evidence supporting at least a plausible
inference that the defendant had knowledge of and access to the . . . contraband.” Id.(quotations omitted).
The government’s theory at trial was that Vanhook constructively possessed at
least one of the firearms found in Sligh’s residence. Because the firearms in this case
were found in a home where three people resided, this is a joint occupancy case.
Therefore, the mere fact Vanhook may have had control over the premises where the
firearms were found is insufficient to establish his constructive possession of them.
Consequently, the government was required to show, by direct or circumstantial
evidence, some connection or nexus individually linking Vanhook to at least one of the
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firearms. The government asserts it did so by demonstrating at trial that Vanhook had
knowledge of and access to the firearms. We agree.
Count V of the second superseding indictment stated:
On or about [September 17, 2002], . . . [Vanhook], a person who had previously
been convicted of a crime punishable by imprisonment for a term exceeding one
year, did knowingly possess in and affecting commerce firearms; that is, a Makaraov
9 X19 semiautomatic handgun, . . . a Smith and Wesson .22 caliber revolver, . . .
and a Bersa Thunder .380 caliber semi-automatic handgun . . . .
(R. Vol. 1, Doc. Entry 55.) Although it is undisputed that all three of these firearms
belonged to Sligh and none of the firearms bore Vanhook’s fingerprints, 20 the evidence
at trial demonstrated Vanhook had access to them. Detective Stan Durham of the
Hobbs Police Department testified concerning the layout of Sligh’s home and stated
nothing prevented its occupants from accessing every room of the house, including
Sligh’s bedroom. In fact, the unfurnished bedroom in which the bus ticket issued to
“Quincy Walker” was found contained a closet linking it to Sligh’s bedroom; all one
had to do to access Sligh’s bedroom from the unfurnished bedroom was push aside the
clothes in the closet. The jury could have reasonably inferred from this testimony that
although Vanhook slept on the living room couch, he kept his personal belongings in
the unfurnished bedroom and therefore could easily access Sligh’s bedroom through the
closet. Additionally, the evidence demonstrated Vanhook had access to the firearm
20
Although all three firearms were submitted for fingerprint analysis, no
fingerprints were found. New Mexico State Police Officer Michael Wilson testified it is
rare to recover fingerprints from a firearm.
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hidden within the loveseat sofa in the living room because he slept there.
As to Vanhook’s knowledge of the firearms, the government presented Sligh’s
testimony, which consisted in relevant part of the following:
Prosecutor: Okay. Did [Vanhook] ever borrow any of those three guns?
Sligh: Maybe, like, one time.
The Court: All right. Let me stop you there, ma’am. You say “maybe” --
Sligh: Like, one time, he didn’t really--he’s not--he didn’t really mess with the
guns. He would, like, play with the guns in the house. And there was one time
that he might have--he took it out.
The Court: And you remember this event?
Sligh: Yes.
The Court: All right. Go ahead.
Prosecutor: Was this--when he took the gun--when he took the gun out, was this
in September of 2002?
Sligh: I’m not sure.
Prosecutor: Did [Vanhook] tell you why he wanted to borrow a gun one time?
Sligh: No, he didn’t discuss, really, what he did on the outside, away from my
house. . . .
(R. Vol. V at 104-05.) A reasonable inference from this testimony is that Vanhook had
knowledge of the firearms in the home, having played with them and taken one out on
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one occasion. 21
In addition to showing knowledge and access, the government presented
sufficient evidence demonstrating Vanhook knowingly exercised dominion and control
over at least one of the firearms named in the indictment. Sligh testified Vanhook
played with the guns in the house. Although she was equivocal as to when he played
with the guns, the testimony at trial demonstrated Sligh moved into her home in March
2002 and that Vanhook resided there from July 2002 until the end of September 2002.
The jury could have reasonably inferred from this testimony that Vanhook played with
Sligh’s guns and that this occurred sometime while he was living with Sligh. Her
testimony also shows he borrowed one of the firearms and took one out. Again, while
Sligh’s testimony does not specifically indicate when this occurred, a reasonable
inference is that Vanhook borrowed one of her guns while he was living with Sligh.
Vanhook relies on United States v. Mills, 29 F.3d 545 (10th Cir. 1994), but that
case is clearly distinguishable. There, we reversed the defendant’s felon in possession
conviction based on insufficient evidence. Id. at 550. Although the government
presented evidence that the defendant had dominion and control over the dining room
21
The government also established through Sligh’s testimony that drug dealers use
guns to protect themselves. While this principle (that drugs and guns often go together),
standing alone, does not allow a jury to infer a defendant’s constructive possession of a
weapon based on his or her possession of drugs, see United States v. Hishaw, 235 F.3d
565, 573 (10th Cir. 2000), it is reasonable to infer based on all of the evidence at trial that
Vanhook, who was selling crack cocaine out of Sligh’s home, had knowledge of and
access to the firearms hidden within it.
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where the firearms were found, it failed to establish the defendant knew the firearms
were hidden within the compartment of the dining room table. Id. Here, Sligh’s
testimony established Vanhook not only had access to the firearms, but that he knew
they were in the house.
As Vanhook argues, Sligh’s testimony concerning Vanhook’s connection with
the guns was far from ideal. However, it is not our duty to re-weigh the evidence or
Sligh’s credibility. As demonstrated by the above analysis, there was sufficient
evidence presented at trial, taken as a whole, supporting Vanhook’s felon in possession
conviction.
IV. Conclusion
We AFFIRM.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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