United States v. Daniel Stuart Addison

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 16, 2009
No. 09-10189 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00204-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL STUART ADDISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 16, 2009)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Daniel Stuart Addison appeals his conviction for possession of a firearm by
a convicted felon in violation of 18 U.S.C. § 922(g)(1). Addison’s conviction was
based on the discovery of an SKS rifle in a shed outside the home of Linda Stokes,
Addison’s mother, on December 11, 2007. Addison contends that there was
insufficient evidence for a reasonable jury to find him guilty because the
government failed to establish that at the time of the search he was in actual or
constructive possession of the SKS rifle or had control over the premises where it
was found.
I.
We review de novo the sufficiency of evidence, viewing it “in the light most
favorable to the government, with all reasonable inferences and credibility choices
made in the government’s favor.” United States v. Wright, 392 F.3d 1269, 1273
(11th Cir. 2004) (alteration and quotation marks omitted). “We will not overturn a
conviction on the grounds of insufficient evidence unless no rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Id. (quotation marks omitted). “The jury is free to choose among alternative
reasonable interpretations of the evidence, and the government’s proof need not
exclude every reasonable hypothesis of innocence.” United States v. Tampas, 493
F.3d 1291, 1298 (11th Cir. 2007) (citation and quotation marks omitted). “When
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the government charges that an offense occurred ‘on or about’ a certain date, the
defendant is on notice that the charge is not limited to the specific date or dates set
out in the indictment. Proof of a date reasonably near the specified date is
sufficient.” United States v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989) (citation
omitted).
Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a firearm.
To convict a defendant under § 922(g)(1), the government must prove that (1) the
defendant was a convicted felon; (2) the defendant knowingly possessed a firearm
or ammunition; and (3) the firearm or ammunition was in or affecting interstate
commerce. United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008).
Addison takes issue only with the second element—knowing possession.
To satisfy the “knowing” requirement of § 922(g)(1), the government must
prove that the defendant had actual or constructive possession of a firearm. See
Wright, 392 F.3d at 1273. “To prove actual possession the evidence must show
that the defendant either had physical possession of or personal dominion over the
[firearm].” United States v. Leonard, 138 F.3d 906, 909 (11thCir. 1998). “To
establish constructive possession, the government must show that the defendant
exercised ownership, dominion, or control over the firearm or the [premises]
concealing the firearm.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.
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2004). Constructive possession can also be established by showing that the
defendant had “the power and intention to exercise dominion or control.” Id. at
1235; United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (“Constructive
possession exists when a person ‘has knowledge of the thing possessed coupled
with the ability to maintain control over it or reduce it to his physical possession
even though he does not have actual possession.’”). The “firearm need not be on
or near the defendant’s person in order to amount to knowing possession.”
Wright, 392 F.3d at 1273; see, e.g., United States v. Winchester, 916 F.2d 602,
603-04 (11th Cir. 1990) (defendant was in knowing possession of firearm found
behind couch while defendant was not at home).
A reasonable jury could have concluded that Addison was in knowing
possession of a firearm in violation of § 922(g)(1). The government introduced
evidence at trial tending to show that Addison had actual possession of the SKS
rifle. George McIntyre, an acquaintance of Addison, testified that Addison
showed him the rifle at Stokes’ residence in December 2007. The search warrant
of Stokes’ residence was executed on December 11, 2007 at which time the rifle
was seized. Viewing the evidence in the light most favorable to the government,
McIntyre’s testimony suggested that Addison had physical possession of the rifle
only days before the search warrant was executed and the rifle was seized. The
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government thus introduced evidence from which a reasonable jury could have
found that Addison was in actual possession of the rifle “on or about” December
11, 2007 as charged in the indictment. See United States v. Pope, 132 F.3d 684,
689 (1998) (concluding that September 17, 1994 and October 4, 1994 were
“reasonably near to October 7, 1994 so as to be ‘on or about’ that date”).
The government also introduced evidence at trial tending to establish that
Addison had constructive possession of the SKS rifle. The evidence showed that
at the time the search warrant was executed Addison at least maintained a
bedroom at Stokes’ residence and had access to the shed where the rifle was
recovered. Based on that, a reasonable jury could have found that Addison
“exercised ownership, dominion or control” over the SKS rifle or the shed where it
was kept and thus it was within his constructive possession. Gunn, 369 F.3d at
1234. Accordingly, we affirm Addison’s conviction.
AFFIRMED.
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