United States v. Anthony D. Brown

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-4156

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

*

Anthony Donnelle Brown, *

*

Defendant - Appellant. *

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Submitted: June 23, 2005

Filed: September 2, 2005

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Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.

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MELLOY, Circuit Judge.

Anthony Donnelle Brown was found guilty by a jury of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Brown appeals, arguing

that the evidence presented at trial was insufficient to support the jury’s verdict. We

affirm.

I. Background

On the evening of May 23, 2004, Brown called Derria Bankhead. He told

Bankhead, his ex-girlfriend, that he had just had a fight with his new girlfriend. He

asked Bankhead if he could come over to her apartment to talk and have sexual

relations. Bankhead told Brown that he could come over.

Shortly after the telephone conversation, in the early morning hours of May 24,

2004, Brown arrived at Bankhead’s apartment. When Brown arrived, he was talking

on his cellular telephone with his current girlfriend. According to Bankhead, Brown

removed a handgun from his waistband and placed it on a table in front of a couch.

Bankhead testified that she asked Brown why he had brought a gun to her apartment,

and that he responded that he had “enemies.” Bankhead told Brown that the police

had previously raided her building and that investigators could search her apartment

at any time. She testified that she fabricated the story in the hope it would cause

Brown to leave. Brown did not leave. Rather, he sat on the couch watching

television.

While Brown was watching television, Bankhead dialed 911. However, she

hung up because she did not want to get Brown in trouble. The 911 operator called

back and asked if there was an emergency. Bankhead told the operator that Brown

was in her apartment with a gun and that she wanted him to leave. Bankhead called

911 two more times prior to the police’s arrival at her apartment.

Bankhead testified that in between conversations she had with the 911

operator, Brown asked Bankhead for a sock. Bankhead testified that she got a sock

from her bedroom and gave it to Brown. She stated that Brown placed the gun in the

sock and rubbed the sock all over the gun. According to Bankhead, Brown then

placed the gun, still inside the sock, on the living room table.

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Officers from the Minneapolis Police Department arrived at the apartment

while Bankhead was still on the phone with the 911 operator, approximately eight

minutes after Bankhead first dialed 911 and hung up. The operator informed the

police that Bankhead was moving around the apartment and that there was a man

sitting on a couch in the living room with a gun in front of him. Bankhead opened

the door to the apartment and allowed the officers into the apartment. When the

officers entered, Bankhead left the apartment and went upstairs to wait for a police

officer to come and speak to her.

Officers found Brown sitting on the couch watching television. The police

ordered Brown to the ground. Officers then placed Brown under arrest and removed

him from the apartment. After removing Brown from the apartment, officers found

a Smith & Wesson 9 millimeter semi-automatic handgun in a sock. The gun was on

the table in the living room immediately in front of where Brown had been sitting

when officers entered the apartment. The gun contained a loaded magazine.

While other officers collected evidence in the apartment, Officer Crabb led

Brown to his squad car. Brown escaped from Officer Crabb and a foot pursuit

ensued. Officer LaNasa was in the vicinity when he learned of the chase over his

radio. Officer LaNasa saw Brown, still handcuffed, run into some bushes and hide.

Officer LaNasa, a canine handler with his dog in his vehicle, yelled to Brown to come

out or he would send his police dog after Brown. Brown came out of the bushes and

surrendered.

Brown was charged and found guilty of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1). On December 8, 2004, the district court1

1

The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota.

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sentenced Brown to 100 months imprisonment to be followed by a two-year term of

supervised release. Brown now brings this timely appeal.

II. Analysis

Brown argues on appeal that there was insufficient evidence to support the

jury’s verdict. We employ a “very strict standard of review on this issue.” United

States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004). As such, we “view ‘the evidence

in the light most favorable to the government, resolving evidentiary conflicts in favor

of the government, and accepting all reasonable inferences drawn from the evidence

that support the jury’s verdict.’” Id. at 917 (quoting United States v. Sanders, 341

F.3d 809, 815 (8th Cir. 2003)). We “reverse a jury’s verdict only where a reasonable

fact-finder must have harbored reasonable doubt relating to the government’s proof

on at least one of the essential elements of the offense.” United States v. Jensen, 141

F.3d 830, 833 (8th Cir. 1998).

To convict Brown of being a felon in possession of a firearm under 18 U.S.C.

§ 922(g)(1), the government had to prove beyond a reasonable doubt that: “(1)

[Brown] had previously been convicted of a crime punishable by a term of

imprisonment exceeding one year; (2) [Brown] knowingly possessed a firearm; [and]

(3) the firearm had been in or had affected interstate commerce.” United States v.

Maxwell, 363 F.3d 815, 818 (8th Cir. 2004). Because Brown conceded that he had

previously been convicted of a crime punishable by a term of imprisonment

exceeding one year and that the firearm at issue had been in or affected interstate

commerce, the only issue on appeal is whether Brown knowingly possessed a firearm.

“The government could prove [Brown] knowingly possessed a firearm if he had

actual or constructive possession of the firearm, and possession of the firearm could

have been sole or joint.” United States v. Walker, 393 F.3d 842, 846-47 (8th Cir.

2005). “Constructive possession of the firearm is established if the defendant [had]

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

dominion over the firearm itself.” Maxwell, 363 F.3d at 818.

The government relied on the testimony of Bankhead, as discussed above, to

prove that Brown had possession of the gun. Brown argues that the government

failed to prove either constructive or actual possession. He argues that Bankhead’s

testimony was not credible because she harbored animosity towards him and that a

reasonable jury could not believe her. Certainly, the relationship between two people

is relevant in assessing the credibility of a witness. Yet, we have long held that the

jury “is always the ultimate arbiter of a witness’s credibility,” and thus we “will not

disturb the jury’s findings” on appeal. United States v. Espino, 317 F.3d 788, 794

(8th Cir. 2003); United States v. Porter, 409 F.3d 910, 915 (8th Cir. 2005) (“We enjoy

no greater vantage point on appeal than did the jury at trial, and we have no right to

usurp the jury’s role to judge the facts and make credibility findings.”); United States

v. Hill, 249 F.3d 707, 714 (8th Cir. 2001) (“Witness credibility is within the province

of the jury, which we are not allowed to review.”). Accordingly, a reasonable jury

could have found, based on Bankhead’s testimony, that Brown possessed the gun, and

thus that Brown was guilty beyond a reasonable doubt.

III. Conclusion

For the foregoing reasons, we conclude that sufficient evidence exists to

support Brown’s conviction. The judgment of the district court is affirmed.

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