U.S. v. Yirkovsky

• Decision Date: 31 July 2003
• Docket Number: No. 02-1176.,No. 02-1462.,02-1176.,02-1462.
• Citation: 338 F.3d 936
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Casey Marie YIRKOVSKY, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

338 F.3d 936

UNITED STATES of America, Appellee/Cross-Appellant, v. Casey Marie YIRKOVSKY, Appellant/Cross-Appellee.

No. 02-1176.

No. 02-1462.

United States Court of Appeals, Eighth Circuit.

Submitted: October 8, 2002.

Filed: July 31, 2003.

COPYRIGHT MATERIAL OMITTED

Jonathan B. Hammond, argued, Cedar Rapids, IA, for appellant.

Richard L. Murphy, AUSA, argued, Cedar Rapids, IA, for appellee.

Before HANSEN,¹ Chief Judge, HEANEY and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HANSEN, Circuit Judge.

After a trial, a jury found Casey Marie Yirkovsky guilty of being an unlawful user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3) (2000), and possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d) (2000). The district court denied Yirkovsky's motion for judgment of acquittal and sentenced her to two concurrent four-year terms of probation, with one year to be spent in a community corrections center.

Yirkovsky appeals her convictions, and for the reasons stated below, we affirm. The government cross-appeals three sentencing matters, and for the reasons discussed below, we vacate Yirkovsky's sentence and remand for resentencing.

I. Yirkovsky's appeal

Four witnesses testified at trial, and their testimony was as follows. Officer Lance Miller recovered marijuana stems and seeds, drug packaging materials, and drug consumption paraphernalia from the trash left outside Yirkovsky's residence. He then applied for and received a search warrant. Detective Dan Healy gathered and secured the evidence seized during the execution of the search warrant: a loaded shotgun and a blowgun inside the house near the front door, marijuana and consumption paraphernalia in the living room, and a loaded, sawed-off shotgun, a digital scale, ammunition, a crossbow, and arrows in Yirkovsky's bedroom.

Patrice Howard, Yirkovsky's friend of eight years, testified that she usually visited Yirkovsky's residence once or twice a week. Yirkovsky had been dating Ricky Jordan Black, Jr., who shared Yirkovsky's bedroom, and Howard had been dating William Stockfleet, who stayed in the second bedroom of the two-bedroom house. After an incident in which someone tried to break into the house while Yirkovsky was home alone at 3 a.m., Black acquired the shotguns for Yirkovsky's protection. Howard was accustomed to seeing the regular shotgun next to the front door and the sawed-off shotgun in the bedroom that Yirkovsky and Black shared, except on an occasion when Black showed Stockfleet how to use the regular shotgun and Yirkovsky and Howard watched. Black moved out of the residence approximately a week before the police searched it, and Yirkovsky had purchased (but had not yet installed) a new lock for the entrance door.

Howard had known Yirkovsky and Black for a fairly long time, and throughout their relationship, Black came and went as he pleased. Thus, although Black had moved out about a week prior to the search, he left behind his two dogs, his clothing, and his other personal effects. Although Yirkovsky had ready access to the shotguns that Black had acquired for her protection, Howard never saw Yirkovsky handle them or claim ownership of them, and Yirkovsky told Howard that she did not like having them in her home. Howard characterized Black's relationship with Yirkovsky as physically abusive: he frequently hit her bruised her, and blackened her eyes. Nonetheless, Yirkovsky stayed together with Black over a long span of time and through three changes of residence.

The parties stipulated that the shotguns had been transported in interstate commerce and that the sawed-off shotgun was unregistered. Detective Robert Elam, who participated in the search of the residence, testified that Yirkovsky told him that Black had acquired the shotguns in response to the attempted break-in that took place when Yirkovsky was home alone.

The defense presented no evidence. The jury found Yirkovsky guilty of both charges, and the district court denied her motion for judgment of acquittal.

On appeal, Yirkovsky argues that the district court erred in denying her motion for judgment of acquittal because there was insufficient evidence that she actually or constructively possessed the firearms. Our standard of review is highly deferential to the jury's verdict: we must view the evidence in the light most favorable to the verdict, we must accept all reasonable inferences supporting the verdict, and we will reverse only if no rational jury could have found Yirkovsky guilty beyond a reasonable doubt. See United States v. Kirkie, 261 F.3d 761, 768 (8th Cir.2001). If the trial evidence rationally supports two conflicting theories, we will not disturb the jury's choice of the theory that supports the convictions. See United States v. Chipps, 299 F.3d 962, 964 (8th Cir.2002).

In our most recent case discussing criminal liability based on constructive possession, we defined constructive possession as follows:

Possession of contraband can be either actual or constructive. We have held that an individual has constructive possession of contraband if he has ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.

Mere physical proximity to contraband is insufficient to convict a person of possession with intent to distribute. However, knowledge of presence combined with control over the thing is constructive possession. If there is knowledge, control is established by proof the person has dominion over the premises in which the contraband is concealed.

United States v. Cruz, 285 F.3d 692, 697 (8th Cir.2002) (case citations and internal marks omitted). Under this definition, Yirkovsky had constructive possession of the firearms because it is undisputed that she had dominion over the residence and knew the firearms were present.

We previously rejected a sufficiency-of-the-evidence challenge to a conviction for constructive possession of a firearm where the trial evidence showed that the police searched the residence where the defendant was living at the time and seized the firearm from the bedroom the defendant shared with his wife. Although the defendant's wife claimed ownership of the firearm, we affirmed the defendant's conviction because "ownership is irrelevant to the issue of possession." See United States v. Boykin, 986 F.2d 270, 274 (8th Cir.), cert. denied, 510 U.S. 888, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993).

There is no meaningful distinction between the evidence deemed sufficient in Boykin and the evidence presented at Yirkovsky's trial. Yirkovsky was living at the residence at the time of the seizure, approximately a week after Black had moved out. The firearms were recovered from Yirkovsky's bedroom and near the front door of the residence, areas over which she exercised either exclusive or shared dominion. Black did not testify, but even if he had testified that he was the owner of the shotguns, his ownership is irrelevant to Yirkovsky's possession.

The inference most favorable to the defense that can be drawn from the trial testimony is that Black brought the firearms into the residence against Yirkovsky's wishes, and she did not remove them during the week after he moved out because she thought he might return someday and hurt her if the guns were gone. The jury was by no means obligated to give credence to this inference. See 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.") But even if the jury did draw this inference, it does not disprove Yirkovsky's constructive possession of the shotguns. "[T]he essence of constructive possession is not direct, physical control, but the ability to reduce an object to actual possession; otherwise, constructive possession would have no meaning at all." United States v. Holm, 836 F.2d 1119, 1123 (8th Cir.1988). If someone had again tried to break into the house while Yirkovsky was home alone, for example, nothing would have stopped her from using either of the loaded and readily accessible shotguns to repel the intruder.

The instant case differs from United States v. Hall, 999 F.2d 1298 (8th Cir. 1993), a case mentioned at oral argument. In that case, an infant was beaten to death while only his mother and her husband were present. The husband and wife were each physically capable of inflicting the injuries, and each of them told authorities a different story about how the injuries occurred. Only the husband was charged, and he was convicted after a trial at which neither he nor his wife testified. The district court granted the husband's motion for judgment of acquittal, and this court affirmed because the trial evidence was equally probative of either spouse's guilt and did not prove beyond a reasonable doubt that the husband was responsible for beating the infant to death. See id. at 1299-1300. The Hall court distinguished a case in which a defendant's conviction for murdering an infant was upheld because he was the only one present at the time the injuries were inflicted. See id. The same distinction applies here: Yirkovksy, not Black, was residing at the house when the guns were seized. Black had moved out a week before, and Yirkovsky was on the verge of changing the lock on the residence's entrance door.

Because the evidence was sufficient to allow a reasonable jury to find that Yirkovsky constructively possessed the firearms, we affirm her convictions.²

II. The government's cross-appeal

The government cross-appeals three sentencing issues. First, the presentence report (PSR) recommended that Yirkovsky should not receive a reduction for acceptance of responsibility because she had put the government to its burden of proof at trial on the element of her possession of the firearms. Yirkovsky objected, and at sentencing, the district court granted her a two-level...