* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-8064

v. (D. Wyoming) TORREN REED TOMPKINS,

Defendant - Appellant. (D.C. No. 97-CR-00090-01D)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Torren Reed Tompkins appeals his conviction and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and- 2 -

924(a)(2). He contends that the evidence was insuf ficient to support his conviction. He also contends that the district cou rt erred by (1) failing to properly instruct the jury regarding the elements o f the charged offense; (2) admitting highly prejudicial photographs of him; an d (3) enhancing his sentence for obstruction of justice. We affirm.

BACKGROUND According to the uncontroverted trial testimony, on February 14, 1997, shortly after Tompkins was paroled from California state prison, he flew to Salt Lake City, Utah, where he was met by his girlfriend Deborah Lord who had driven down with a coworker from Green River, Wyomi ng. Lord and her coworker had come to take Tompkins back to Green Ri ver where he was going to live with Lord. During the return drive, Tompkins asked Lord about his .22 caliber pistol, as well as his knives and lock pick s, which Lord had kept for him while he had been incarcerated. R. Vol. VI, at 135 , 154-55. Because the probation department had advised her that Tompkins could not have access to firearms, Lord had previously put the gun, the kniv es, and the lock picks into a1 The gun was in its own separate small blue box. Th e gun and its blue box

were introduced into evidence together, and, on sev eral occasions, identified together. See R. Vol. VI, at 81, 120; R. Vol. VII, at 282. - 3 - brown box, and she had given them to another coworker for safe keeping. 1 Id. at 153-54; R. Vol. VII, at 282. When Lord told him what she had done, Tompkins became angry and abusive, and he demanded that she get his things back. R. Vol. VI, at 135-36, 154. About a week later, Lord and Tompkins drove t o the trailer of the coworker who was keeping the box. Tompkins stayed in the truck while Lord attempted to retrieve the box with Tompkins’ things. Id. at 156; R. Vol. VII at 284. However, the coworker had stored the box at another location , so Lord and Tompkins left empty-handed. Later that day, the coworker got the box, returned it to Lord at her trailer, and left. R. Vol. VI, at 181; R. Vol. VII , at 286. At that time, the coworker did not see Tompkins who was inside the tr ailer, lying on the couch. When Lord told him what had been delivered, Tompkin s took the box from Lord, opened it, took out the gun, handled it for a few m inutes, and then put it back in the box with the knives and picks, taped up the box , and marked it “grandma’s china doll.” R. Vol. VI, at 156-57, 182. Tompkins then instructed Lord to put the box inside a larger box full of Lord’s old clothes and to place the larger box in the storage shed located next to the trailer; afterwards, he repeatedly insisted that- 4 -

Lord keep the key to the shed on a key hanger in th e trailer so that he could have access to it. Id. at 156-57, 182, 236-37. Meanwhile, Tompkins’ parole officer knew that Tompk ins was living with Lord. She was also a customer of the business wher e Lord worked, and she had frequent conversations with other workers there. A s a result of information she gained from those conversations, she conducted a se arch of the residence property. Id. at 76. After searching the trailer, she obtained the key to the shed from Lord. When it became apparent that the shed w ould be searched, Tompkins protested, saying that everything in the shed belon ged to his cousin Darren Allen. Id. at 79. Once in the shed, the parole officer found the gun, still stored in the box of Lord’s clothes, in the taped box marked “china dolls.” Id. at 80-82. After the discovery, she and the two other officers who w ere with her each handled the gun and packaging without attempting to preserve any prints. Id. at 82-83. Eventually, the gun and its box were tested for fin gerprints, but agents were able to recover only one usable latent print, which coul d not be matched to Tompkins or to any of the other persons, officers, or agents known to have handled the property. R. Vol. VII, at 321, 345. At the time of the search, Lord told the searching officials that the gun belonged to Tompkins. However, after Tompkins’ par ole was revoked and he was taken to jail, he made repeated calls to Lord in wh ich he threatened to beat her up- 5 -

unless she wrote an exonerating letter to the Calif ornia Board of Parole. R. Vol. VI, at 184-85, 192-93. Finally Lord wrote the request ed letter, stating that the shed and all the property in it belonged to Darren Allen, and that Tompkins neither had knowledge of the gun nor access to the shed. Id. at 187-90. On August 22, 1997, after he had been indicted in this case, Tompkins wrote Lord an invective-laced letter which accused her of lying, complained about her running her mouth, and also stated, “I’ll drag you down too !” and “Your [sic] going down too!” Appellee’s Br., Addendum at 1-3. In May 1998, a jury found Tompkins guilty as charge d. The district court subsequently enhanced Tompkins’ sentence for obstru ction of justice. Tompkins then brought this appeal.

DISCUSSION I. Sufficiency of the Evidence As his first claim of error, Tompkins contends thatthe evidence was insufficient to support his conviction. We review the question of sufficiency of the evidence de novo. United States v. Rith , 164 F.3d 1323, 1337 (10th Cir. 1999). Evidence is sufficient to support a convict ion if, viewed in the light most favorable to the government and drawing all inferen ces in the government’s favor, it would allow a reasonable jury to find the defend ant guilty beyond a reasonable- 6 -

doubt. United States v. Carter , 130 F.3d 1432, 1439 (10th Cir. 1997). In applying this standard, “we consider the collective inferences drawn from the evidence as a whole, and we will not overturn a con viction unless no reasonable jury could have reached the disputed verdict.” United States v. Bell , 154 F.3d 1205, 1208 (10th Cir. 1998). Additionally, we do “ not question a jury’s credibility determinations or its conclusions aboutthe weight of the evidence.” United States v. Johnston , 146 F.3d 785, 789 (10th Cir. 1998). To convict a defendant of violation of 18 U.S.C. § 922(g)(1), the jury must find, beyond a reasonable doubt, that (1) the defen dant was previously convicted of a felony; (2) the defendant thereafter knowingly possessed a firearm or ammunition; and (3) the possession was in or affect ing interstate commerce. United States v. Taylor , 113 F.3d 1136, 1144 (10th Cir. 1997). Although Tompkins concedes the first and third elements, he disputes the sufficiency of the evidence on possession. For purposes of § 922(g), possession includes both actual and constructive possession. Id. A person has constructive possession when he or s he knowingly holds the power to exercise dominion or control ove r the firearm and the premises where it was found. United States v. Wilson , 107 F.3d 774, 778, 779-80 (10th Cir. 1997). In cases involving “joint occupancy” o f premises, the government is required to show some nexus between the defendant and the firearm. United- 7 -

States v. Mills , 29 F.3d 545, 549 (10th Cir. 1994). In such cases , we will sustain a conviction if there is evidence which supports atleast a plausible inference that the defendant had both knowledge of and access to the firearm. Wilson , 107 F.3d
at 780. Tompkins argues the testimony of Lord was insuffici ent to establish that he constructively possessed the firearm. Essentially, Tompkins argues that the letter which Lord wrote to the California Board of Parole states the truth about his lack of knowledge of or access to the gun. He contends that her contrary testimony was provoked by a lovers’ spat, and, at the very le ast, Lord’s recanting of the letter she wrote to the parole board demonstrates t hat she is an admitted liar, whose new statements cannot be trusted. He claims that only Lord knew about and had access to the gun, and her testimony regard ing his ownership of the gun and his access to it is inherently unreliable. We disagree. Notably, several aspects of Lord’s testimony were c orroborated by other witnesses: Tompkins’ wife testified that she had g iven the gun to him in 1989 or 1990. R. Vol. VI, at 119-20. Tompkins’ demand that Lord recover the gun was confirmed by Lord’s coworker who made the round tri p drive with her to Salt Lake City. Id. at 135, 154. The other coworker, to whom Lord had given the gun, testified that, on the day Lord came to his tr ailer to retrieve the gun, Tompkins had driven her over and had stayed out in the truck. Id. at 156. Darren- 8 -

Allen testified that he and Lord had brought a load of Tompkins’ things from California, including a gun, and had stored most of Tompkins’ things in the shed. Id. at 198, 202. Whatever Tompkins’ view of Lord’s cr edibility, the jury apparently believed her. Under the circumstances, that determination must stand. Accordingly, the evidence was sufficient for a reas onable jury to conclude that Tompkins had knowledge of and access to the gun, an d that he therefore constructively possessed it.

II. Jury Instruction In an argument which largely reiterates his suffici ency of the evidence argument, Tompkins contends that the district courtimproperly instructed the jury as to the elements of the charged offense. We revi ew the district court’s decision whether or not to give a particular jury instructio n for abuse of discretion. Wolfgang v. Mid-America Motorsports, Inc. , 111 F.3d 1515, 1525 (10th Cir. 1997). However, we review de novo the ultimate que stion of whether the instructions, as a whole, correctly stated the gove rning law and provided the jury with a proper understanding of the issues and applicable standards. Id. at 1526. In this case, Tompkins complains about Jury Instruc tion No. 21, which stated as follows: When constructive possession is based on circumstantial evidence, authority, dominion, or control may be inferred if, under2 Tompkins notes he was nowhere near the shed when itwas searched,

asserts he did not occupy it, claims that “arguably ” he had no dominion or control over it, and further complains about the agents’ mi shandling of the evidence. Appellant’s Br. at 9. In the first place, whether Tompkins was near the shed or personally occupied it when the gun was found is irrelevant to a finding of constructive possession. Second, Lord’s testimony—that Tompkins insisted she keep the shed key hung up so he could get to it—con tradicts his claim that he had no dominion or control over the shed. Finally, Dar ren Allen’s testimony that most of Tompkins’ possessions were also placed in the sh ed, R. Vol. VI, at 201-02, indicates that Tompkins did “occupy” it. - 9 - circumstances in which the premises is jointly occupied, the evidence shows some connection or nexus between the defendant and the firearm, such as knowledge of and access to the fir earm. You may not infer authority, dominion, or control solely ba sed on the joint occupancy of the premises. Appellee’s Br., Addendum at 9. Tompkins attacks instruction No. 21 as internally i nconsistent and significantly misleading, and he contends the distr ict court further abused its discretion by refusing to submit his own proffered instruction which stated: “Mere control or domain over the place in which the gun was found by itself is not enough to establish constructive possession whe n there is joint occupancy of a place.” 2 Appellant’s Br. at 8. We disagree. The district court has considerable discretion in the wording of instructions, “as long as they adequately present the law and the issues.” United States v. Wolny , 133 F.3d 758, 765 (10th Cir. 1998). Having reviewed the instructions as a whole, we con clude that they properly set3 The instructions which relate directly to the issue of possession are

Instruction Nos. 19-21. Appellee’s Br., Addendum at 7-9. - 10 - forth the law of this circuit on constructive posse ssion in joint occupancy situations. 3

C. Admission of Photographs As his third claim of error, Tompkins argues that the district court erred by admitting highly prejudicial photographs of him. W e review a district court’s decision to admit evidence for abuse of discretion. United States v. McIntosh , 124 F.3d 1330, 1338 (10th Cir. 1997). Tompkins protests that the court allowed pictures w hich purported to show him standing and physically able to access the shed . He contends that these pictures prejudiced him before the jury, because th ey implicitly suggested that he was faking disability when he appeared at trial in a wheelchair. He also impugns either the authenticity or the foundation for the p hotos because they show snow on the ground at a time when the weather service re ported no snow on the ground. Significantly, he makes no claim that the nature orsubject matter of the photos is inflammatory. As the government correctly observes , the admitted candids served a proper demonstrative purpose. We find no error i n their admission.4 We have previously interpreted “instant offense” to mean that the conduct

must relate to the crime of conviction. United States v. Gacnik , 50 F.3d 848, 852 (10th Cir. 1995); United States v. Levy , 992 F.2d 1081, 1083-84 (10th Cir. 1993). - 11 - D. Sentence Enhancement As his final claim of error, Tompkins contends thatthe district court erred by enhancing his sentence. We review the district court’s factual determinations concerning an obstruction of justice enhancement fo r clear error, giving due deference to the district court’s application of the Guidelines to the facts. United States v. Hankins , 127 F.3d 932, 934 (10th Cir. 1997). Guideline § 3C1.1 mandates a two-level offense increase “[i]f the def endant willfully obstructed or impeded, or attempted to obstruct or impede, the ad ministration of justice during the investigation, prosecution, or sentencing of the instant offense . . . .” 4 U.S. Sentencing Guidelines Manual § 3C1.1 (1997). This enhancement is warranted for a defendant’s conduct which “threaten[s], intim idat[es], or otherwise unlawfully influenc[es] a . . . witness.” Id. comment. (n.3(a)). In this case, Tompkins admits that he wrote Lord a letter which stated, “I’ll drag you down, too!” and “Your [sic] going down too !” However, Tompkins argues that, when he wrote the letter, he could nothave known whether Lord would be a witness against him, and, therefore, his letter fails to satisfy the requirement that the conduct be directed at a witne ss. We disagree. The letter specifically states that “The only way they could c harge me is if you go to court5 Tompkins also argues that he should have received aseparate trial on

obstruction. Inasmuch as this argument was not mad e below, we do not consider it. - 12 - and lie again like you and your friends did before! ” Appellee’s Br., Addendum at 3. Clearly, Tompkins knew that Lord would be a wit ness, and, by this letter he attempted to influence her testimony. Next, Tompkins argues that he never intended to obs truct justice, asserting that he only sought to convince Lord not to lie, th at he made no threats in connection with any truthful testimony, and that th e letter was simply a spirited communication. 5 Again, we reject Tompkins’ contentions. The dist rict court’s determination to enhance Tompkins’ sentence for obs truction of justice was not clearly erroneous.
AFFIRMED.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge