Opinion
Case No. 04-40041-01-SAC.
August 17, 2004
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion for judgment of acquittal. Defendant was convicted, after a swift jury trial, of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g).
Defendant's motion contends that the jury convicted defendant on mere speculation, that the evidence did not meet the burden of proof, and that the jury's verdict was at odds with the evidence. No other analysis is presented, and the motion consists merely of a recitation of some of the evidence presented at trial.
Standards for judgment of acquittal
When the jury returns a verdict of guilty, the court may, upon motion, set aside the verdict and enter a judgment of acquittal. Fed.R.Crim.P. 29(c). When the sufficiency of the supporting evidence is challenged, the court must examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see United States v. Bailey, 327 F.3d 1131, 1140 (10th Cir. 2003). In reviewing the sufficiency of the evidence, the court must consider the direct and circumstantial evidence, as well as the reasonable inferences to be drawn from that evidence. United States v. Davis, 1 F.3d 1014, 1017 (10th Cir. 1993) (citing United States v. Fox, 902 F.2d 1508, 1513 (10th Cir.), cert. denied, 498 U.S. 874 (1990)). The court must accept the jury's resolution of conflicting evidence, as well as the jury's apparent credibility calls. Davis, 1 F.3d at 1017 (citing United States v. Youngpeter, 986 F.2d 349, 352 (10th Cir. 1993)). "`[T]he evidence presented to support the conviction must be substantial; . . . it must do more than raise a mere suspicion of guilt.'" United States v. Torres, 53 F.3d 1129, 1133-34 (10th Cir.) (quoting United States v. Sanders, 928 F.2d 940, 944 (10th Cir.), cert. denied, 502 U.S. 845 (1991)), cert. denied, 515 U.S. 1152 (1995).
On the other hand, the evidence "`need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt.'" United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (quoting United States v. Alonso, 790 F.2d 1489, 1493 (10th Cir. 1986)), cert. denied, 514 U.S. 1055 (1995). So long as the jury's verdict is "`within the bounds of reason,'" it will not be disturbed on appeal. United States v. Ramirez, 63 F.3d 937, 945 (10th Cir. 1995) (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)). "`A jury will not be allowed to engage in a degree of speculation and conjecture that renders its finding a guess or mere possibility. Such a finding is infirm because it is not based on the evidence.'" United States v. Jones, 49 F.3d 628, 632 (10th Cir. 1995) (quoting Sunward Corp. v. Dun Bradstreet, Inc., 811 F.2d 511, 521 (10th Cir. 1987) (quoting Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir. 1982))).
"An inference is reasonable only if the conclusion flows from logical and probabilistic reasoning." United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995). The Tenth Circuit looks to the following in deciding whether an inference is reasonable:
"The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow from a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts."Jones, 49 F.3d at 632 (quoting Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 895 (3d Cir.), cert. denied, 454 U.S. 893 (1981)). "Additionally, `the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.'" Jones, 49 F.3d at 632 (quoting Galloway v. United States, 319 U.S. 372, 395 (1943)). Finally, a conviction may not be upheld by piling inference upon inference. Jones, 44 F.3d at 865.
Analysis
The essential elements of the crime which defendant was convicted of are: 1) that on or about January 17, 2004, in the District of Kansas, the defendant knowingly and intentionally possessed a firearm; 2) that prior to this possession of the firearm, the defendant had been convicted in any court of a crime punishable by imprisonment for a term exceeding one year, that is, a felony offense; and 3) that such firearm had been shipped or transported in interstate commerce by crossing a state boundary line.
The parties stipulated that the second element was met, that is, the defendant has previously been convicted in a court of a crime punishable by imprisonment for a term exceeding one year. Therefore, the government had no need to offer proof as to that element, and the jury properly considered it proven by the government.
No stipulation was reached as to the interstate commerce element. Thus the government presented the testimony of Bruce Stukey, Special Agent with ATF. His testimony squarely established that the firearm in question, which functioned as originally designed, had been manufactured in Spain. Defendant raised no challenge to this testimony, thus the jury was fully warranted in finding that the firearm had been shipped or transported in interstate commerce by crossing a state boundary line.
The only contested issue at trial was defendant's knowing possession of the firearm. It is undisputed that no DNA or fingerprint examination linked defendant to the firearm. Nonetheless, the direct and circumstantial evidence of defendant's possession of the firearm was more than sufficient to meet the government's burden of proof on this issue.
Corporal Patrick Hannan of the Topeka Police Department testified that as he pursued defendant in a foot chase on the day in question, defendant ran in an unusual manner. Although defendant's left hand was moving in a sprinter's motion, his right hand was immobile, holding his waist area. At one point when Corporal Hannan was approximately 15 yards away from defendant, defendant looked at Corporal Hannan then fell to the ground. When defendant fell, Corporal Hannan saw an object he recognized as a black semi-automatic handgun fall out from defendant's person and slide approximately two feet across the parking lot. Corporal Hannan was certain that the item defendant dropped was a firearm, but could not tell whether it was a b.b. gun, a replica, or a real firearm at that time. Defendant scrambled to pick up the firearm, then ran again.
Soon thereafter, defendant turned a corner and was out of the officer's sight for two or three seconds. When Corporal Hannan saw defendant again, defendant was closer than the officer expected him to be. Defendant was not holding his waist area or running, despite the fact that there were no impediments to his running, but defendant had both hands empty and was jogging, slowing to a walk. Corporal Hannan then closed the distance and arrested defendant. A search pursuant to arrest disclosed no firearm on his person. Defendant had a wallet, but no incriminating evidence or other items on him at the time of his arrest.
A search for the firearm ensued. After less than ten minutes, it was found on the flat roof of an apartment porch, approximately ten feet high, which defendant had apparently passed during the few seconds he had been out of the officer's sight. The firearm was loaded. Corporal Hannan testified that it had been raining all morning until approximately 15 minutes before the foot chase began, and that there was standing water approximately 1/4" deep on the porch roof but that the top of the firearm was dry. Corporal Hannan believed that had the firearm been on the roof more than 15 minutes, the top of the firearm would have been wet from the rain. Additionally, there was no rust on the firearm, and in Corporal Hannan's experience, a firearm will show some rust in one day if left out in the rain. Also, the firearm on the roof could have been seen by persons using the interior stairway in the apartments, through its windows. These factors were the basis for Corporal Hannan's testimony that the firearm had not been on the porch roof very long.
Further, Corporal Hannah testified that the firearm could not have been placed on the roof from the nearby apartment windows, because they do not open. Nor was the porch roof easily accessible, as demonstrated by the fact that Corporal Hannan had to have his Sergeant lift him up onto the roof to enable him to photograph the area. But defendant, who was approximately 5'3" tall, could easily have tossed the firearm, which weighed less than one pound, onto the roof.
Corporal Hannan additionally testified to the fact that in his experience, which includes six years patrolling the area in which this event occurred, he has never found a firearm, loaded or unloaded, in a public place. The area does experience higher crime than normal, but firearms are valued by criminals and are not usually left lying around. Corporal Hannan also stated that it is very common for suspects to discard objects such as drugs, guns, or stolen property, as they flee from law enforcement officers.
No witnesses testified on behalf of the defendant. The jury apparently found Corporal Hannan's testimony to be clear, credible, and persuasive, as the court would have, had it been the trier of fact.
Viewing the above evidence in the light most favorable to the prosecution, it is clear that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury's conclusion of defendant's guilt was properly based upon the direct and circumstantial evidence plus reasonable inferences drawn from the evidence, and not upon speculation or conjecture.
IT IS THEREFORE ORDERED that defendant's motion for judgment of acquittal (Dk. 51) is denied.