1

The Honorable Harold D. Vietor, United States District Judge for the Southern

District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1013

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Richard Antoine Evans, *

*

Appellant. *

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Submitted: September 12, 2005

Filed: December 15, 2005

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Before MELLOY, BEAM, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

A jury convicted Richard Antoine Evans of being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1

sentenced him to 108 months in prison. Evans appeals his conviction, alternatively

requests a new trial, and seeks resentencing. Jurisdiction being proper under 28

U.S.C. § 1291, this court affirms. 
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I.

On December 28, 2003, two West Des Moines police officers saw Evans drive

a white GMC Yukon into the parking lot of a concert venue. Recognizing Evans, the

officers verified an outstanding warrant for his arrest. They arrested him as he exited

the vehicle and then released three other unidentified male passengers. 

The officers then searched the Yukon, which was registered to Evans's

girlfriend, Dominique Gutierrez. The officers began with the glove box and, from the

passenger side of the vehicle, noticed screws missing underneath where a radio or CD

player ordinarily is in the front-center console. Finding it uncharacteristic to have

missing screws in that area of the vehicle, one officer shook the plastic console cover

with his hand, found it extremely loose, and pulled it out of the vehicle without

unthreading any screws. Using a flashlight, he saw a small black gun case in the

compartment behind where the plastic console cover had been. The gun case

contained an unloaded pistol and two loaded magazines.

II.

At the close of the government's case, Evans moved for a judgment of acquittal

based on insufficient evidence, which the district court denied. On appeal, Evans

reasserts that the government did not meet its burden of establishing he knowingly

possessed the firearm. 

Possession of a firearm may be actual or constructive. United States v. Walker,

393 F.3d 842, 846-47 (8th Cir. 2005), cert. denied, No. 05-6241, 2005 WL 2494161

(Oct. 11, 2005). Constructive possession requires that the defendant "has dominion

over the premises where the firearm is located, or control, ownership, or dominion

over the firearm itself." United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004),

cert. denied, 125 S. Ct. 1293 (2005). Constructive possession may be established by
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circumstantial evidence alone, but the government must show a sufficient nexus

between the defendant and the firearm. United States v. Howard, 413 F.3d 861, 864

(8th Cir. 2005). 

In reviewing for sufficiency, this court views the evidence in the light most

favorable to the government, resolving conflicts in its favor, and accepting all

reasonable inferences that support the jury's verdict. United States v. Collins, 340

F.3d 672, 679 (8th Cir. 2003). Reversal is justified only if no reasonable jury could

find the defendant guilty beyond a reasonable doubt. United States v. Chapman, 356

F.3d 843, 847 (8th Cir. 2004). 

The government presented evidence that Evans had dominion over the interior

of the Yukon where the firearm was found. Gutierrez, Evans's girlfriend, testified that

she was the registered owner of the Yukon; Evans lived with her and drove the Yukon

"on a regular basis" while she had another vehicle she drove. She stated she had no

knowledge of the firearm or the loosened console area where it was found.

Evans also had a nexus to the firearm itself, which was registered to his halfbrother, Marc Sockwell. Sockwell testified he inadvertently left the weapon in the

vehicle's rear-cargo area during a trip from Illinois to visit Evans earlier in the week,

and that Evans had control over the vehicle when Sockwell last saw the firearm.

Sockwell also stated that the gun case had a small lock and key on it, which were both

missing when the police found it. Like Gutierrez, Sockwell testified he did not place

the gun case in the console area and did not know about the compartment.

III.

This case is most like United States v. Serrano-Lopez, 366 F.3d 628 (8th Cir.

2004). In that case, the driver and passengers of a car were convicted by a jury of

possession (with intent to distribute) cocaine that officers discovered in packages
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hidden throughout the car. Id. at 632. The drugs were uncovered after an officer

noticed fresh tool marks on the screws securing the dashboard and glove box of the

automobile, indicating that the dash had been removed recently. Id. In upholding the

convictions, this court was persuaded that signs of tampering supported an inference

that the occupants knew contraband was hidden within the automobile. Id. at 635.

See also Ortega v. United States, 270 F.3d 540, 546 (8th Cir. 2001). 

Similarly, in United States v. Willis, this court found sufficient evidence to

support the convictions of a driver and passenger for aiding and abetting possession

of cocaine. 89 F.3d 1371, 1377 (8th Cir. 1996). There, the police uncovered crack

cocaine in plastic bags sticking out of a hole in the wheel base within a station

wagon's cargo area. Id. at 1375. Both defendants testified that they had no

knowledge of the hidden cocaine. Id. at 1377. This court upheld the convictions of

both the driver and passenger. Id. As to the driver, this court stated that "a person has

constructive possession of contraband if he has . . . dominion over the premises in

which the contraband is concealed." Id. (internal quotations omitted). Further, the

scratch marks on the caps to the holes in the wheel base, along with a screwdriver,

indicated that the driver knew about the hidden cocaine. Id. As to the passenger, this

court was persuaded that his close physical proximity to the bags of crack cocaine and

screwdriver in the back of the station wagon, as well as his friendship with the driver,

was sufficient evidence to uphold his conviction. Id. 

Like Serrano-Lopez and Willis, there was sufficient evidence to support Evans's

conviction for illegally possessing the firearm. The modifications to the front-center

console of the Yukon were readily visible to the investigating officer, who testified

that he immediately noticed loose and missing screws in the plastic console cover.

The console was located directly to the right of the driver's seat, easily accessible to

the driver. As Evans was the Yukon's primary driver, and the owners of the vehicle

and gun testified that they did not place the gun behind the front-center console cover,
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a reasonable jury could conclude that Evans knew about the compartment that

contained the firearm. 

At oral argument, counsel discussed the case of United States v. MendozaLarios, 416 F.3d 872 (8th Cir. 2005). There, this court found insufficient evidence to

convict the driver and passenger of possessing (with intent to distribute) cocaine

locked in a sealed compartment welded within the passenger-airbag space of a vehicle,

which was not visible. Id. at 873. The investigating officer testified that, from

outward appearances, the dash looked like any other dash and that any discrepancies

were not obvious to a member of the public. Id. at 876. In that case, the owners of

the vehicle and the cocaine did not testify. This court was persuaded that the

government failed to meet its burden of proving knowing possession. 

The Mendoza-Larios case relies on United States v. Pace, 922 F.2d 451 (8th

Cir. 1990) and United States v. Fitz, 317 F.3d 878 (8th Cir. 2003) in determining that

the occupants of the car had no knowledge of the hidden cocaine. See MendozaLarios, 416 F.3d at 875-76. In Pace, this court found insufficient evidence to convict

the defendant of possessing (with intent to distribute) almost 200 pounds of cocaine

hidden in several pieces of a co-defendant's luggage concealed in the back seat and

cargo area of a station wagon. Pace, 922 F.2d at 453. In that case, both Pace and the

co-defendant testified that Pace did not know that cocaine was hidden in the luggage.

Id. Further, there was no evidence that Pace ever opened the luggage containing the

cocaine or that he entered the back seat of the station wagon during the trip. Id.

Similarly, in Fitz, this court found insufficient evidence to convict a defendant of

conspiracy and possession (with intent to distribute) methamphetamine hidden in the

gas tank of a vehicle. Fitz, 317 F.3d at 880. There, the government did not call any

witnesses to establish that Fitz knew about the methamphetamine hidden in the gas

tank. Id. at 882 (finding insufficient evidence that Fitz had ever ridden in or driven

the vehicle in which the drugs were "well hidden"). 
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Mendoza-Larios, Pace, and Fitz are inapposite here because they involve

contraband that is hidden and not obvious. In this case, the modifications to the frontcenter console cover were obvious, not hidden, and in close proximity to the driver.

Moreover, the jury believed the testimony of the owners of the vehicle and gun that

they did not make the modifications to the console cover, and did not place the gun

there. Accordingly, after a de novo review, this court finds sufficient evidence to

support Evan's conviction for being a felon in possession of a firearm. 

IV.

In the alternative, Evans requests a new trial, objecting to the district court's

Allen charge. A challenged jury instruction is reviewed for abuse of discretion.

United States v. Hagan, 412 F.3d 887, 890 (8th Cir. 2005). An Allen charge is a

supplemental jury instruction that advises deadlocked jurors to reconsider their

positions. Id. Supplemental jury instructions are permissible so long as they are not

coercive. Id. Jury coercion is determined by (1) the content of the instruction, (2) the

length of the deliberation after the instruction, (3) the total length of deliberations, and

(4) any indicia in the record of coercion. Id.

After about four hours of deliberation, the jury wrote the district court

requesting options in the event of an impasse. The district court replied that the jury

should notify the court in the event it was actually unable to reach a verdict. The jury

immediately notified the district court that it was truly at an impasse. Over Evans's

objection, the court issued an Allen charge in the form of Model Criminal Jury

Instruction 10.02, and returned the jury to deliberations. Approximately 45 minutes

later, the jury sent another note to the judge requesting an additional explanation of

the word "knowingly" as used in the original instructions. Again, this instruction was

given over Evans's objection. The jury then left, returning the next morning to

deliberate for an additional four-and-a-half hours before returning a guilty verdict.
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Based on the four-part test, the district court did not abuse its discretion. First,

the content of Model Jury Instruction 10.02 is expressly approved by this court. See

United States v. Thomas, 946 F.2d 73, 76 (8th Cir. 1991). Second, the jury

deliberated for approximately five hours after the Allen charge was given, which raises

no inference of coercion. See United States v. Cortez, 935 F.2d 135, 142 (8th Cir.

1991) (four-and-a-half hours of Allen deliberation time). Third, although the jury

deliberated in total more than nine hours for a one-day, non-complex trial, "the total

deliberation time is not dispositive in analyzing the effect of an Allen charge." See

United States v. Glauning, 211 F.3d 1085, 1087 (8th Cir. 2000). Finally, the record

contains no other indicia of coercion. 

V.

Evans also claims that a new trial is required due to the district court's erroneous

supplemental definition of the term "knowingly." After the jury requested an

explanation shortly after the Allen charge, the court responded in open court:

"'Knowingly' as used in the instructions means that defendant knew he possessed the

firearm. Possession has been fully defined for you in Instruction No. 11." 

Evans attacks the supplemental definition in two basic ways. First, he argues

that it was not consistent with the court's original instruction that knowledge alone is

insufficient to support a conviction. To the contrary, the supplemental definition

expressly referred to the original definition of "possession," which told the jury not

to convict unless it found that Evans both knew the firearm was in the vehicle and

intended to exercise control over it. Second, Evans says that the wording of the

supplemental definition is prejudicial, linguistically confusing, circular, and

conviction-oriented. This court finds no prejudice or confusion in the wording of the

supplemental definition. Its language is a neutral, common-sense understanding of

the term and was properly tied to the original instruction regarding "knowing

possession" of the firearm. See United States v. Iron Eyes, 367 F.3d 781, 785 (8th
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Cir. 2004) (noting that the definition of "knowingly" is a matter of common

knowledge that requires no specific instruction). The district court did not abuse its

discretion or unduly prejudice Evans in instructing on the supplemental definition. 

VI.

Finally, Evans appeals his sentence, claiming that the district court's mandatory

application of the sentencing guidelines violated his Sixth Amendment rights and

United States v. Booker, 125 S. Ct. 738 (2005). At sentencing, Evans argued Blakely

v. Washington, 524 U.S. 296 (2004), thereby preserving this issue for harmless-error

review. United States v. Pirani, 406 F.3d 543, 548-49 (8th Cir. 2005)(en banc), cert.

denied, 126 S. Ct. 266 (2005). The government thus must establish beyond a

reasonable doubt that the district court would not have imposed a lower sentence had

it applied the guidelines in an advisory manner. United States v. Sutherlin, 424 F.3d

726, 728 (8th Cir. 2005). 

Evans had two prior violent-felony convictions, making him a career offender

under the sentencing guidelines. As a result, his sentencing guidelines range was 100

to 120 months. At sentencing, Evans urged the court to sentence him at the low end

of that range, specifically requesting the sentence of 108 months that the court

imposed. See United States v. Harrison, 393 F.3d 805, 807-08 (8th Cir. 2005). In

choosing this sentence, the district court noted that Evans had the most criminalhistory points of any defendant he had sentenced in 16 years of working with the

guidelines. The court specifically rejected a lower sentence as a "disservice to

society." On this record, any error from mandatory application of the guidelines was

harmless.

VII.

The judgment of the district court is affirmed. 

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