United States Court of Appeals

For the Eighth Circuit

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No. 12-1912

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Edgar Keaton Martin

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: November 12, 2012

 Filed: November 26, 2012

[Unpublished]

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Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

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PER CURIAM.

Edgar Keaton Martin appeals his conviction for being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). Martin argues that the evidence was
insufficient to support the conviction and that the district court erred by instructing

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the jury on constructive possession. We affirm. 

I.

In May 2008, Jana Pinkston, Martin’s probation officer, received a report that

Martin had weapons on his property. During a home visit and search of Martin’s

home, Pinkston and several law enforcement officers from the Van Buren County

Sheriff’s Office located ammunition in Martin’s kitchen and in a downstairs air vent,

multiple rifles and a handgun in an upstairs air vent, and multiple rifles and a shotgun

in a hidden compartment underneath the stairwell. The officers also located a

handwritten note that, in addition to describing several of the guns found within the

house, contained a description of a mini 14 rifle.

After learning that the officers had found the weapons in the upstairs air vent,

Martin told the officer who sat with him during the search that “they found them.” 

When the officer asked Martin whether they would find anything in the downstairs

air vent, Martin indicated that they would find weapons and ammunition, adding,

“What can I say? I like guns.” 

At trial, the jury heard testimony from Mickey Ratcliff and Richard Norwood,

Martin’s neighbors. Ratcliff testified that in April 2008, while on the road near

Martin’s house, Ratcliff saw Martin with a rifle in his hand. Norwood testified that

Martin’s nephew had taken certain weapons from Martin’s uncle and brought them

to Martin’s house. Norwood testified further that he had warned Martin against

having the weapons at his house and that Martin’s response wasthat his nephew “was

bored and was using them.”

The Honorable J. Leon Holmes, thenChief Judge, United States DistrictCourt

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for the Eastern District of Arkansas. 

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The jury also heard testimony from Shannon Applegate, Martin’s former

girlfriend. Applegate testified that in April 2008 she received a package from Martin

containing, among other things, a pistol and a mini 14 rifle with a silver folding stock

that Applegate recognized from living with Martin. Applegate testified that the mini

14 rifle in the package had the same characteristics as the mini 14 rifle described in

the handwritten note taken from Martin’s house.

Martin objected to the district court’s inclusion of the constructive possession

portion of Instruction No. 10, which mirrored Eighth Circuit Model Criminal Jury

Instruction 8.02, and provided:

The law recognizes several kinds of possession. A person may have

actual possession or constructive possession. A person may have sole

or joint possession.

A person who knowingly has direct physical control over a thing, at a

given time, is then in actual possession of it.

A person who, although not in actual possession, has both the power and

the intention at a given time to exercise dominion or control over a

thing, either directly or through another person or persons, is then in

constructive possession of it.

If one person alone has actual or constructive possession of a thing,

possession is sole. If two or more persons share actual or constructive

possession of a thing, possession is joint.

Whenever the word “possession” has been used in these instructions it

includes actual as well as constructive possession and also sole as well

as joint possession. 

Martin argued that constructive possession was not an issue in the case and that

including it in the instruction would confuse the jury. The district court overruled the

objection and gave the instruction.

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II.

Martin argues that the evidence was insufficient to support a finding that he

knowingly possessed a firearm. “We consider challenges to the sufficiency of the

evidence to support a conviction de novo but consider the evidence presented in the

light most favorable to the government, resolving conflicts in the government’s favor,

and accepting all reasonable inferences that support the verdict.” United States v.

Mann, 685 F.3d 714, 721 (8th Cir. 2012) (internal quotation marks and citations

omitted). We reverse “only if no reasonable jury could have found guilt beyond a

reasonable doubt.” United States v. Herbst, 666 F.3d 504, 510 (8th Cir. 2012). 

To convict Martin under § 922(g)(1), the government was required to prove

beyond a reasonable doubt (1) that Martin had previously been convicted of a crime

punishable by a term of imprisonment exceeding one year; (2) that Martin knowingly

possessed a firearm; and (3) that the firearm had been in or affected interstate

commerce. United States v. Tucker, 689 F.3d 914, 918 (8th Cir. 2012). The only

element in dispute is whether Martin knowingly possessed a firearm. 

Based upon the summary of the evidence recounted above, we conclude that

the evidence was sufficient to support the jury’s finding that Martin knowingly

possessed a firearm.

III.

Martin argues that the district court erred by giving the constructive possession

portion of Instruction No. 10 because there was no evidence to support that portion

of the instruction. “We review the inclusion of a jury instruction for an abuse of

discretion, and, to determine whether evidence is sufficient to justify an instruction,

we review the evidence and any reasonable inference from that evidence in the light

most favorable to the government.” United States v. Reaves, 649 F.3d 862, 867-68

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(8th Cir. 2011) (internal quotation marks and citations omitted). Under thisstandard,

the evidence in the record wassufficient to submit the constructive possession portion

of Instruction No. 10 to the jury.

Martin argues also that the constructive possession portion of Instruction No.

10 misstated the law. Because Martin did not raise this argument below, we review

for plain error. See United States v. Rush-Richardson, 574 F.3d 906, 910 (8th Cir.

2009). Relying on United States v. Dooley, 580 F.3d 682 (8th Cir. 2009), Martin

contends that the constructive possession portion of Instruction No. 10 permitted the

jury to convict him of constructively possessing a firearm without his having

knowledge that a firearm was in his house. In Dooley, the district court modified

Eighth Circuit Model CriminalJury Instruction 8.02 to provide that the defendant was

in constructive possession of a firearm by virtue of being in control of the vehicle in

which the firearm was found. Id. at 686. Instruction No. 10 contained no such

modification, and the jury instructions as a whole adequately informed the jury that

Martin had to know that the firearms were in his house to constructively possess

them. Accordingly, the district court did not plainly err by giving Instruction No. 10. 

See United States v. Hopkins, 428 F. App’x 658, 660 (8th Cir. 2011) (per curiam)

(district court did not plainly err by giving Eighth Circuit Model Criminal Jury

Instruction 8.02 when jury instructions as a whole adequately informed jury of the

necessity of finding that the defendant knowingly possessed ammunition). In any

event, Martin’s statement to the officers that they would find weapons and

ammunition in the vent in the downstairs area, coupled with his statement, “What can

I say? I like guns,” rendered harmless any alleged deficiency in Instruction No. 10. 

IV. 

The judgment is affirmed. 

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