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

### NOV 12 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. TONY GLEN ADKINS,

Defendant-Appellant. No. 98-3322

Appeal from the United States District Court

for the District of Kansas (D.C. No. 98-CR-40041)

Steven Gradert, Assistant Federal Public Defender, (David J. Phillips, Federal Public Defender, with him on the brief), Wichita, K ansas, for Appellant. Anthony W. Mattivi, Assistant United States Attorne y, (Jackie N. Williams, United States Attorney, and Gregory G. Hough, Assis tant United States Attorney, on the brief), Topeka, Kansas, for Appellee.

Before KELLY, McKAY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION Tony Glen Adkins was convicted as a felon in posses sion of a firearm in violation of 18 U.S.C. § 922(g). The trial judge s entenced Adkins to a term of 180-months imprisonment followed by three years of supervised release. On appeal, Adkins raises four claims: (1) the trial co urt erred when it refused to give Adkins’ proposed theory of defense jury instructiondefining “possession” to exclude momentary control without criminal intent; (2) the court erred by allowing the government to introduce into evidence a rifle similar to the one for which Adkins was charged in the indictment; (3) the evidence presented at trial was insufficient to sustain a conviction; and (4) the court erred by applying an Armed Career Criminal enhancement in sentencing him . This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms both the conviction and

sentence.

II. BACKGROUND On March 2, 1998 in Onaga, Kansas, Tony Glen Adkins was driving a blue compact Chevrolet, with Sheila Tork riding in the p assenger seat. Adkins collided with a parked trailer owned by Ernest May, who then called 911. Immediately after the collision, Adkins and Tork fl ed the scene. When Pottawatomie County Deputy Sheriff Cory Gilmore arr ived, May was the only-3-

person remaining. Deputy Gilmore ran a license che ck on the Chevrolet and determined an Elsie Bluma of Onaga was the owner. Upon searching the abandoned Chevrolet, Sheriff’s o fficers discovered six to seven lose 7.62 x 39 mm rifle rounds. Several m inutes later, Bluma arrived at the scene. Bluma told officers she had loaned the car earlier that day to a Glen or a Glen Scott. Attempting to find Adkins and Tork, the officers went to Bluma’s residence, where they located Tork but not Adkins. While at Bluma’s house, the officers also discovered two or three more 7.62 x 3 9 mm rifle rounds. On April 15, 1998, an agent of the Bureau of Alcoho l, Tobacco, and Firearms (“ATF”) interviewed Jeff Comer at his busi ness, J and J True Value Hardware. A federally licensed firearms dealer, Co mer stated that on February 15, 1998, he sold an SKS Paratrooper, 7.62 x 39 mm rifle to Elsie Bluma, also providing her a complimentary box of ammunition. C omer further stated a white male, who Comer identified as Adkins, was with Blum a when she bought the rifle. At trial, Comer could not recall who carrie d the rifle from the store; Bluma testified Adkins must have done so. On April 17, 1998, ATF agents and Sheriff’s officer s searched Bluma’s residence, finding thirty-seven more 7.62 x 39 mm r ifle rounds and three photographs of Adkins. Three weeks later, Adkins w as arrested in Topeka, Kansas, though no rifle was ever found.-4-

III. ANALYSIS A. Jury Instructions This court reviews a trial court’s decision on whether to give a particular jury instruction for abuse of discretion and views the instructions as a whole de

novo to determine whether they accurately informed the jury of the governing law.
See Medlock v. Ortho Biotech, Inc. , 164 F.3d 545, 552 (10th Cir. 1999), cert. denied, No. 98-1829, 1999 WL 315531 (U.S. Oct. 4, 1999); United States v. Cerrato-Reyes , 176 F.3d 1253, 1262 (10th Cir. 1999). Adkins asserts the trial court erred in refusing to give his proposed theory of defense instruction, which in defining “possessi on” stated in relevant part, “Momentary, transitory, or temporal control of a th ing, without criminal intent, is not possession.” Indeed, the trial court twice ref used to give the jury this proposed instruction. Initially, when deciding upo n the proper jury charge, the court rejected Adkins’ proposal. Instead, the court gave a standard possession instruction which indicated in order to convict, th e jury must find Adkins “knowingly possessed” a firearm and further definedboth “possession” and “knowing,” but did not mention the concept of “flee ting possession.” In his closing argument, however, defense counsel was allo wed to and did argue that the government’s evidence was insufficient, showing Adk ins only temporarily possessed the rifle when he carried it from the har dware store to Bluma’s vehicle.1 The jury’s question stated, “We are hung up on th e matter of possession.

We need help.” The judge responded in writing, “Pl ease refer to instruction no. 8 for assistance on the issue of possession. If, aft er reading this instruction, you have additional questions, you may send another mes sage to the court.” -5- During deliberations, the jury inquired about posse ssion, and again, the trial court refused to provide them with Adkins’ proposed instruction. 1 On appeal, Adkins maintains the court’s failure to give his fleeting possession instruction may have led the jury to improperly convict Adkins based upo n but a momentary possession. A defendant is entitled to a theory of defense inst ruction when that instruction articulates a correct statement of the law and sufficient evidence has been presented to support the jury’s finding in def endant’s favor on that theory.
See United States v. Dozal , 173 F.3d 787, 796 (10th Cir. 1999); United States v. Swallow , 109 F.3d 656, 658 (10th Cir. 1997). Although Adk ins’ fleeting possession instruction may indeed constitute a corr ect statement of the law, no possible interpretation of the evidence presented at trial could support an acquittal under that theory. Courts which explicitly have accepted the fleeting possession theory define it this way: a jury must acquit a defendant charged with possession of contraband when the evidence demonstrates not only that the de fendant merely momentarily possessed contraband, but also that the defendant e ither lacked knowledge that he-6-

possessed contraband or had a legally justifiable r eason to possess it temporarily. In interpreting a statute virtually identical to 18 U.S.C. § 922(g), the Fifth Circuit did recognize the fleeting possession theory, but o nly when the possession was both temporary and justified for self-defense purpo ses. See United States v.
Panter , 688 F.2d 268, 271 (5th Cir. 1982). The Fifth Cir cuit earlier emphasized the knowledge or intent element of the fleeting pos session theory when it discussed it in the context of a drug possession ca se: “[Defendant’s] possession of the one [marijuana] cigarette was a mere fleeting p ossession, not inconsistent with honest intention or mere curiosity, and his th rowing the cigarette away upon being ordered to stop is not, in our opinion, subst antial evidence of a guilty knowledge or intent. Criminal intent is a sine quanon of criminal responsibility.” Rent v. United States , 209 F.2d 893, 900 (5th Cir. 1954); see also United States v. Parker , 566 F.2d 1304, 1306 (5th Cir. 1978) (“That posses sion is momentary is immaterial” to prosecution for possession of unregi stered firearm). Moreover, in an unpublished order and judgment addressing 18 U.S .C. § 922(g), this court noted “federal firearms laws impose ‘something appr oaching absolute liability.’” United States v. Marquez , No. 90-1230, 1991 WL 145264, at *2 (10th Cir. Aug . 1, 1991) (cited as persuasive authority pursuant to 10 th Cir. R. 36.3) (quoting United States v. Nolan , 700 F.2d 479, 484 (9th Cir. 1983)).2 If, for example, Comer testified that, unbeknowns t to Adkins, he had

placed the rifle in a box or a bag which effectivel y veiled the nature of its contents, Adkins might be entitled to a fleeting po ssession instruction; a jury could interpret this evidence as demonstrating Adki ns did not know he possessed (continued...) -7- Thus, even if a felon held a firearm for a mere sec ond or two, unless that felon truly did not know that what he possessed was a firearm or there was some recognized legal justification for his holding the firearm, § 922(g) will still impose criminal liability. If, however, a felon wh o momentarily possessed a firearm genuinely lacked knowledge that he possesse d a firearm or had a legally justifiable reason for possessing it, the fleeting possession theory would apply because the government would have failed in its bur den of proving intent. Therefore, the court need only give a fleeting poss ession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked e ither knowledge he possessed contraband or criminal intent to possess it. Here, the one possible interpretation of the eviden ce which Adkins believes supports a fleeting possession theory in no way ind icates his lack of criminal knowledge or intent. Even if the jury believed Adk ins merely temporarily held the rifle as he carried it from the hardware store to Bluma’s vehicle, there was no evidence suggesting Adkins either did not know the item he carried was a firearm or had some legal justification, negating criminal intent, to carry it. 2 The2 (...continued)

a firearm when carrying the box or bag to Bluma’s v ehicle. This court will not decide that issue, however, because no such testimo ny was elicited in this case. -8- evidence that was presented regarding Adkins’ activ ity at the hardware store could only support two possible conclusions by the jury: either Adkins never held the firearm at all, as he testified, or he did carry it to the car, fully cognizant that in his hands lay a firearm, as Bluma’s testimony su ggested. Because this evidence did not give rise to a possible inference that Adkins’ possession was done either ignorantly, accidentally, or justifiabl y, the district court did not abuse its discretion in failing to give the fleeting poss ession instruction. The jury was then left with the responsibility of determining wh ether Adkins knowingly possessed the firearm.

B. Demonstrative Evidence This court will reverse a trial court’s receipt of demonstrative evidence only for an abuse of discretion. See United States v. Birch , 39 F.3d 1089, 1092 (10th Cir. 1994). The government introduced into e vidence a rifle similar to the one charged in the indictment, because the governme nt never recovered the charged rifle. Unlike the charged rifle, however, the demonstrative rifle had a bayonet affixed to it and a slightly longer barrel. Bluma and Comer identified the3 In his Appellate Brief, Adkins argues the demonstrative rifle “was merely

offered to inflame the prejudice of the jury becaus e of the nature of the weapon. It had no other relevance.” It is unclear whether this constitutes a mere relevance claim under Rules 401 and 402, or whether Adkins wi shes to appeal the receipt of the evidence under Rule 403. See Fed. R. Evid. 401, 402, 403. Nowhere in the Brief, however, does Adkins cite Rule 403 or even argue that the demonstrative rifle’s probative value was substantially outweighe d by the danger of unfair prejudice. See Fed. R. Evid. 403. Additionally, the trial court did not make any on-the-record Rule 403 findings, as is often done w hen a party raises a 403 objection below. See United States v. Guardia , 135 F.3d 1326, 1331 (10th Cir. 1998) (stating that in assessing Rule 403 challenge s to Rule 413 evidence, “it will be particularly important for a district court to . . . make a clear record of the reasoning behind its findings.”); United States v. Roberts , 88 F.3d 872, 881 (10th Cir. 1996) (per curiam) (requiring District Court t o make such on-the-record 403 findings for analysis of Rule 404(b) evidence). Un fortunately, the record of Adkins’ objection is unclear, as his only recorded objection to this evidence fails to suggest the specific reason for the objection. Although we will undertake a 403 analysis because Adkins asserts unfair prejudic e, the trial court did not err by failing to make on-the-record findings, as there is no indication Adkins ever explicitly raised a 403 objection below. Consisten t with his Appellate Brief, it is (continued...) -9- demonstrative rifle as similar to the one which Blu ma purchased from Comer while Adkins was present. Additionally, Bluma’s ne ighbor, Will Kolterman, testified Adkins had come to his home carrying whatAdkins called an SKS rifle, and Kolterman identified the demonstrative rifle as similar to the one Adkins carried that day. Both Comer and Kolterman pointed out to the jury that although the demonstrative rifle had a bayonet affixed to it , the firearm they had seen with Adkins did not. Adkins now asserts admission of th e demonstrative rifle was error because it was not relevant for any permissib le purposes, being only introduced to inflame the prejudices of the jury. 33 (...continued)

far more likely Adkins simply stated a relevance objection to the trial court. Nonetheless, this court has “authority to conduct ade novo balancing where the trial court failed to make explicit findings to sup port a Rule 403 ruling.” United States v. Lazcano-Villalobos , 175 F.3d 838, 847 (10th Cir. 1999). -10- As in this case, the government in United States v. Hamilton charged the defendant with violating 18 U.S.C. § 922(g), the in dictment alleging Hamilton illegally possessed a .38 caliber revolver. See 992 F.2d 1126 (10th Cir. 1993) In rejecting Hamilton’s argument that the government f ailed to prove he possessed the charged revolver, this court stated, “[T]he gov ernment merely had to produce evidence at trial from which the jury could find be yond a reasonable doubt that [the] [d]efendant had [possessed] a firearm . . . a nd was not required to prove that the firearm was a .38 caliber revolver.” Id. at 1130. Therefore, although the government need not prove Adkins possessed the char ged rifle itself, the demonstrative rifle was relevant to demonstrate Adk ins possessed some firearm. Specifically, the demonstrative firearm was relevan t to the credibility of Kolterman, who claimed to have seen Adkins holding a rifle. Adkins testified and his defense counsel argued in closing that Adkins n ever possessed the firearm and that Kolterman lied about seeing Adkins with a rifl e. By having Kolterman identify the demonstrative rifle as similar to the one which he claimed Adkins possessed while pointing out the differences and el iciting an entirely consistent description of the demonstrative and charged rifles from Bluma and Comer, the-11-

government substantially negated the possibility th at Kolterman had offered perjured testimony. In addition, the jury could be tter determine whether this witness in fact saw Adkins holding a rifle by viewi ng the size and shape of a firearm very similar to the one which Kolterman tes tified he saw in Adkins’ hands. See United States v. McIntosh , 23 F.3d 1454, 1456 (8th Cir. 1994) (upholding admission of demonstrative firearm becau se it assisted jury in assessing witness credibility). Finally, by more d efinitively establishing that Adkins possessed the rifle at Kolterman’s home, the government strengthened the inference that Adkins in fact carried the firearm f rom Comer’s store to Bluma’s vehicle. The demonstrative rifle was thus relevantfor these permissible purposes. Rule 403 states in relevant part, “Although relevan t, evidence may be excluded if its probative value is substantially ou tweighed by the danger of unfair prejudice . . . .” Fed. R. Evid. 403. This court has repeatedly warned that “Rule 403 is an extraordinary remedy and should be used s paringly.” Wheeler v. John
Deere Co. , 862 F.2d 1404, 1408 (10th Cir. 1988) (quotation o mitted); see also United States v. Rodriguez , No. 98-2259, 1999 WL 765966, at *3 (10th Cir. Sep t. 28, 1999) (quoting Wheeler ’s cautionary language). The demonstrative rifle h ad significant probative value, as its introduction bo lstered the credibility of three key witnesses – Bluma, Comer, and Kolterman. In addition, though surely it would have been preferable for the government to us e an identical rifle to the one-12-

which Adkins allegedly possessed, the government di d reduce substantially the danger of any unfair prejudice by itself eliciting testimony that noted the discrepancies between the charged rifle and the dem onstrative one. Therefore, even if the slightly longer barrel and the attached bayonet might be claimed to have inflamed unnecessarily the jury’s prejudice, t he danger of such prejudice did not substantially outweigh the probative value of t his evidence, and thus, the trial court did not abuse its discretion in allowing the rifle’s introduction.

C. Sufficiency of the Evidence In reviewing whether the evidence was sufficient to support the jury’s verdict, “this court must review the record de novo and ask only whether, taking the evidence – both direct and circumstantial, toge ther with the reasonable inferences to be drawn therefrom – in the light mos t favorable to the government, a reasonable jury could find [the defendant] guilty beyond a reasonable doubt.” United States v. Jenkins , 175 F.3d 1208, 1215 (10th Cir. 1999) (quotation omitted). To sustain a conviction under 18 U.S.C. § 922(g), the government must prove three elements: (1) the defendant previously was convicted of a crime punishable by imprisonment exceeding one year; (2) the defendant thereafter knowingly possessed a firearm; and (3) the possessi on was in or affecting-13-

interstate or foreign commerce. See United States v. Capps , 77 F.3d 350, 352 (10th Cir. 1996). Adkins only challenges the suffi ciency of the evidence in proving the second element.
In United States v. Mains , this court held, “[T]he only knowledge required for a § 922(g) conviction is that the instrument po ssessed is a firearm.” 33 F.3d 1222, 1228 (10th Cir. 1994). The government may pr ove either actual or constructive possession. See United States v. Cardenas , 864 F.2d 1528, 1533 (10th Cir. 1989). Constructive possession exists w hen the defendant knowingly has ownership, dominion, or control over an object and the premises where the object is found. See United States v. Hager , 969 F.2d 883, 888 (10th Cir. 1992). At trial, Bluma, Comer, and Adkins himself all test ified Adkins accompanied Bluma to Comer’s hardware store on the day Bluma purchased an SKS Paratrooper, 7.65 x 39 mm rifle. Bluma acknowl edged Adkins “must have” carried the rifle out to her car and placed it in h er truck. She further stated she did not see the rifle again after the date of purch ase and that Adkins was the only other person with keys to the truck in which he ini tially placed the rifle. Even if a reasonable jury heard and believed only Bluma’s tes timony and nothing else, it could conclude beyond a reasonable doubt Adkins kno wingly possessed, both constructively and actually, a firearm. Additional ly, Kolterman testified that Adkins later came to his house, showed him what loo ked like a rifle, and stated-14-

that it was “his” SKS rifle which was purchased at Comer’s hardware store. Again, this testimony alone could support a reasonable jury’s determination beyond a reasonable doubt that Adkins knowingly pos sessed a firearm. Because the evidence presented at trial, viewed in a light most favorable to the government, proved this second element beyond a rea sonable doubt, this court affirms the jury’s guilty verdict.

D. Sentencing Enhancement Adkins challenges the trial court’s application of an Armed Career Criminal enhancement under 18 U.S.C. § 924(e) and United States Sentencing Guidelines § 4B1.4, arguing the court improperly utilized his no n-violent escape from a juvenile facility to qualify him for this enhanceme nt. This court reviews de novo a sentence enhancement under 18 U.S.C. § 924 and ex amines the entire record and supporting documentation to determine the legit imacy of the trial court’s
sentence. See United States v. Lujan , 9 F.3d 890, 891 (10th Cir. 1993). 18 U.S.C. § 924(e) provides in relevant part, “a pe rson who violates section 922(g) of this title and has three previous convict ions . . . for a violent felony . . . shall be . . . imprisoned not less than fifteen yea rs . . . .” 18 U.S.C. § 924(e)(1). The statute then defines “violent felony” as “any c rime punishable by imprisonment for a term exceeding one year . . . th at . . . involves conduct that-15-

presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Further, § 4B1.4 of the United State s Sentencing Guidelines establishes the appropriate offense level for an ar med career criminal under 924(e). See U.S.S.G. § 4B1.4 (1997). The trial court applied these two statutory and gui deline provisions because Adkins had three prior felony convictions: felony e scape, aggravated assault, and aggravated battery. Adkins contends his felony esc ape should not qualify as a violent felony, as it involved no acts of violence. This court, however, has held a felony escape, violent or not, necessarily constitu tes a violent felony under the Armed Career Criminal enhancement, because such an escape always presents a serious potential risk of physical injury to others

. See United States v. Moudy , 132 F.3d 618, 620 (10th Cir. 1998). Though acknowl edging this precedent, Adkins claims Moudywas wrongly decided, arguing any felony could qual ify as a violent felony under the Moudyreasoning. This panel, however, cannot overturn the decision of another panel of this court. See United States v. Nichols , 169 F.3d 1255, 1261 (10th Cir. 1999). Thus, this court affi rms the trial court’s application of the Armed Career Criminal enhancement and the se ntence imposed.

IV. CONCLUSION-16-

For the reasons set out above, the conviction and t he sentence imposed by the United States District Court for the District o f Kansas at Topeka, Kansas are hereby AFFIRMED

.No. 98-3322, United States v. Adkins

McKAY, Circuit Judge, concurring:

I join the proposed opinion except to express my di sagreement with the assumption of the categorical statement in United S tates v. Moudy , 132 F.3d 618, 620 (10th Cir. 1998), which requires us to assume that felony escape “always constitutes ‘conduct that presents a serious potent ial risk of physical injury to another.’” Id. ; see also United States v. Gosling , 39 F.3d 1140, 1142 (10th Cir. 1994) (adopting the reasoning of United States v. A ragon , 983 F.2d 1306, 1313 (4th Cir. 1993)). Consider, for example, state law that defines failure to return to work release or other inmate release program as fel ony escape. See, e.g. , Colo. Rev. Stat. § 16-11-212 (1999) (“[A]ny willful failu re to return to the jail or other facility may be punishable as an escape under secti on 18-8-208,” which establishes five levels of escape, including three felony levels, according to the seriousness of the underlying offense); Kan. Stat. Ann. § 75-5269 (1997) (“The willful failure of an inmate to remain within the e xtended limits of his or her confinement or to return within the time prescribed to an institution or facility . . . shall be deemed an aggravated escape from custody a s provided for in K.S.A. 21- 3810,” which defines aggravated escape as either a level 8 nonperson felony or level 6 person felony); N.M. Stat. Ann. § 33-2-46 ( Michie 1998) (“Any prisoner whose limits of confinement have been extended, or who has been granted a-2-

visitation privilege under the inmate-release progr am, who wilfully fails to return to the designated place of confinement within the t ime prescribed, with the intent not to return, is guilty of an escape. Whoever is convicted of an escape under the provisions of this section is guilty of a third deg ree felony . . . .”); Okla. Stat. Ann. tit. 57 § 510.1 (West Supp. 1999) (“Failure to return to the facility [from a work release or other permitted absence] shall be d eemed an escape and subject to such penalty as provided by law [which defines mostescapes as felony, see id. tit 21 §§ 434-445].”); Utah Code Ann. § 64-13-14.5(3) ( 1996) (“The willful failure of an inmate to remain within the extended limits o f his confinement or to return within the time prescribed to an institution or fac ility designated by the department is an escape from custody,” which is pun ishable as a first, second or third degree felony under § 76-8-309 (Supp. 1999)); Wyo. Stat. Ann. § 7-16-309 (Lexis 1999) (“The intentional act of an inmate of absenting himself without permission from either the place of employment or t he designated place of confinement within the time prescribed constitutes an escape from custody of the institution [a felony under § 6-5-206].”). There i s a quantum difference between the assumptions about the intrinsic danger of unauthorized departure from actual custody, as in this case, and of failure to return from authorized departure from actual custody. I do not wish to be seen as presum ing that the latter felony is a-3-

violent one under 18 U.S.C. § 924(e)(2)(B). I cons ider such an interpretation to be an abuse of language and a departure from the te xt of the statute.