U.S. v. Balanga, 96-3075

• Citation: 109 F.3d 1299
• Decision Date: 01 April 1997
• Docket Number: No. 96-3075,96-3075
• Parties: UNITED STATES of America, Appellee, v. Gregory Lynn BALANGA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1299

109 F.3d 1299

UNITED STATES of America, Appellee, v. Gregory Lynn BALANGA, Appellant.

No. 96-3075.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 10, 1997.

Decided April 1, 1997.

Timothy Q. Purdon, argued, Bismarck, ND, for appellant.

Scott J. Schneider, Assistant U.S. Attorney, argued, Bismarck, ND, for appellee.

Before MAGILL, BEAM, and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

Gregory Lynn Balanga was convicted in the district court ¹ by a jury on two counts of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (1994). On appeal, Balanga argues that there was insufficient evidence to convict him of being a felon in possession of a firearm, that the district court abused its discretion in using an Eighth Circuit Model Jury Instruction rather than the instruction submitted by Balanga, and that the district court erred in enhancing his sentence. We affirm.

I.

Balanga lived with his girlfriend, Lori Lindstrom, in a small rental house at 311 North 19th Street in Bismarck, North Dakota. The house had a basement which could only be accessed through a root-cellar door outside of the house. The root-cellar doors led to a short staircase, at the bottom of which was a second door that opened on the basement. This second door was padlocked. The basement contained a washer and dryer, a desk used as a work bench, and a telephone.

During the summer of 1995, Balanga allegedly possessed a .25 caliber handgun and a sawed-off shotgun. On August 8, 1995, Balanga purportedly discharged one of the firearms in his yard during an argument with a woman named Kristie Sherman. On August 15, 1995, police placed Balanga in North Dakota state custody for this alleged assault. Lindstrom, Balanga's girlfriend, testified that when police took Balanga into custody she removed the .25 caliber handgun and sawed-off shotgun from Balanga's car and placed them in her own. Upon Balanga's release from custody shortly thereafter, Lindstrom testified that she gave the firearms back to him.

Sometime between October 6 and 13, 1995, Balanga's brother Dennis asked Balanga if he could store some things in Balanga's basement. Dennis received a key to the basement padlock from either Balanga or Lindstrom. Dennis then put a .22 caliber rifle (which had one round of ammunition in its clip) and a box of .38 caliber ammunition in Balanga's basement.

On October 13, 1995, police executed a search warrant on Balanga's house. The police discovered the .22 caliber rifle and .38 caliber ammunition stored in the basement of Balanga's house. When informed about the discovery of the rifle and ammunition, Balanga allegedly stated to the police that "I forgot the gun was even there. It's not my gun. It's my ... sister-in-law's, DeAnna." Trial Tr. at 55. The police did not find either the .25 caliber handgun or the sawed-off shotgun.

Balanga was charged on a four-count indictment for being a felon in possession of three firearms (a .25 caliber pistol, a sawed-off shotgun, and a .22 bolt-action rifle) and ammunition (a single round of .22 caliber ammunition and a box of .38 caliber ammunition), in violation of 18 U.S.C. § 922(g)(1). The jury acquitted Balanga of possession of the sawed-off shotgun and was unable to reach a verdict on the count of being in possession of the .25 caliber handgun. The jury convicted Balanga of being a felon in possession of the .22 caliber rifle and the ammunition.

The district court sentenced Balanga to 188 months in prison. The court enhanced Balanga's sentence based on his three prior convictions in Colorado for second degree burglary, which the district court counted as violent felonies. Balanga now appeals his conviction and sentence.

II.

On appeal, Balanga argues that there was insufficient evidence to support his conviction for being in possession of the .22 caliber rifle and the ammunition found in his basement. We must affirm a jury verdict if, taking all facts in the light most favorable to the verdict, a reasonable juror could have found the defendant guilty of the charged conduct beyond a reasonable doubt. See United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988).

Balanga bases his insufficiency argument on his assertion that he did not possess a key to his basement door's padlock while Dennis stored a rifle and ammunition in Balanga's basement. Because he did not have a key to the basement, Balanga argues, he did not have access to the .22 caliber rifle and the ammunition and therefore did not possess them. ² We disagree.

To convict Balanga of being a felon in possession of a firearm, the government had the burden of proving beyond a reasonable doubt that he " 'exercised ownership, dominion or control over the firearms or dominion over the premises ' " where the firearms were stored. United States v. Mabry, 3 F.3d 244, 247 (8th Cir.1993) (quoting United States v. DePugh, 993 F.2d 1362, 1364 (8th Cir.1993)) (emphasis added by Mabry ). "In the absence of evidence refuting the normal inference of dominion, showing that a firearm was discovered at the defendant's residence suffices to prove constructive possession." Mabry, 3 F.3d at 247 (rejecting argument that defendant did not possess shotguns stored in his home because they were in a room accessible only through his mother's locked bedroom).

In this case the jury could have reasonably concluded that Balanga failed to refute the normal inference of dominion over his own home. While there was some testimony at trial to support Balanga's assertion that he did not have a key to his own basement during the period in question, there was also evidence that Balanga in fact retained a key. See Trial Tr. at 122-23 (Lindstrom testimony). ³ When presented with such conflicting testimony, "[i]t is the jury's duty, not ours, to review the credibility of these witnesses and to weigh their testimony." United States v. Logan, 49 F.3d 352, 360 (8th Cir.1995). Even without this conflicting testimony, the jury could have reasonably rejected as incredible the testimony that Balanga locked himself away from his own basement. See Mem. & Order, reprinted in Appellant's Add. at 3 ("The evidence regarding the key or keys was a bit incredible. The jury may well have determined that no one voluntarily locks themselves away from their washer and dryer and clean and soiled laundry for an indeterminate period."). ⁴

III.

Balanga next argues that the district court erred in relying on an Eighth Circuit Model Jury Instruction on the meaning of "possession" in the context of 18 U.S.C. § 922(g)(1) rather than accepting Balanga's proposed jury instruction. "When reviewing a challenge to the jury instructions, we recognize that the district court has wide discretion in formulating the instructions and will affirm if the entire charge to the jury, when read as a whole, fairly and adequately contains the law applicable to the case." United States v. Casas, 999 F.2d 1225, 1230 (8th Cir.1993).

During trial, Balanga requested a jury instruction which read:

Possession: Key to padlock You have been instructed that possession means "dominion and control." In determining whether Greg Balanga had "dominion and control" over the Mossberg .22 caliber rifle identified in Count Three and the ammunition listed in Count Four which were found in the locked basement of 311 North 19th Street, you must determine whether he had "dominion and control" over the key to the locked door. If he did not have "dominion and control" over the key to the locked door, he cannot have had dominion and control over the Mossberg .22 caliber rifle identified in Count Three and the ammunition in Count Four. United States v. Wright, 24 F.3d 732 (5th Cir.1994); United States v. Eldridge, 984 F.2d 943 (8th Cir.1993).

Reprinted in Appellant's Br. at 23. Rejecting the requested instruction, the district court issued Eighth Circuit Model Jury Instruction Number 8.02 (1996), which provides, in part:

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.

Reprinted in Appellee's Br. at 20.

The district court did not abuse its discretion in rejecting Balanga's proposed jury instruction. We have recently held that a jury instruction patterned after Model Jury Instruction Number 8.02 "accurately stated the legal definitions of the various types of possession, including constructive possession." United States v. Smith, 104 F.3d 145, 148 (8th Cir.1997). By contrast, Balanga's requested jury instruction improperly assumed that Balanga's immediate possession of a key was necessary for him to have dominion over the firearm in his basement. As our decision in Mabry makes clear, such dominion may be inferred, and possession of a key did not have to be proven. See Mabry, 3 F.3d at 247.

IV.

Balanga finally argues that, because the district court failed to examine the factual circumstances underlying Balanga's three previous convictions in Colorado for second degree burglary, the district court erred in enhancing Balanga's sentence pursuant to 18 U.S.C. § 924(e)(1) (1994). Because Balanga failed to raise this argument in the district court, we review this argument only for plain error resulting in a miscarriage of justice. ⁵ See United States v. Petty, 1 F.3d 695, 697 (8th Cir.1993).

Under 18 U.S.C. § 924(e)(1), a person previously convicted of three violent felonies shall receive a minimum fifteen-year penalty upon conviction of being a felon in possession of a firearm. Under 18 U.S.C. § 924(e)(2)(B)(ii) (1994), "burglary" is specifically included as a violent felony. An "objecting defendant bears the burden of proving that a prior conviction is not a violent felony...