USA. v. Adkins, 98-3322

• Decision Date: 12 November 1999
• Docket Number: No. 98-3322,98-3322
• Citation: 196 F.3d 1112
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TONY GLEN ADKINS, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1112

196 F.3d 1112 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TONY GLEN ADKINS, Defendant-Appellant.

No. 98-3322

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 12, 1999

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, Kansas, for Appellant.

Anthony W. Mattivi, Assistant United States Attorney, (Jackie N. Williams, United States Attorney, and Gregory G. Hough, Assistant United States Attorney, on the brief), Topeka, Kansas, for Appellee.

Before KELLY, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Tony Glen Adkins was convicted as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The trial judge sentenced Adkins to a term of 180-months imprisonment followed by three years of supervised release. On appeal, Adkins raises four claims: (1) the trial court erred when it refused to give Adkins' proposed theory of defense jury instruction defining "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 passenger seat. Adkins collided with a parked trailer owned by Ernest May, who then called 911. Immediately after the collision, Adkins and Tork fled the scene. When Pottawatomie County Deputy Sheriff Cory Gilmore arrived, May was the only person remaining. Deputy Gilmore ran a license check on the Chevrolet and determined an Elsie Bluma of Onaga was the owner.

Upon searching the abandoned Chevrolet, Sheriff's officers discovered six to seven lose 7.62 x 39 mm rifle rounds. Several minutes 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 39 mm rifle rounds.

On April 15, 1998, an agent of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") interviewed Jeff Comer at his business, J and J True Value Hardware. A federally licensed firearms dealer, Comer 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. Comer further stated a white male, who Comer identified as Adkins, was with Bluma when she bought the rifle. At trial, Comer could not recall who carried the rifle from the store; Bluma testified Adkins must have done so.

On April 17, 1998, ATF agents and Sheriff's officers searched Bluma's residence, finding thirty-seven more 7.62 x 39 mm rifle rounds and three photographs of Adkins. Three weeks later, Adkins was arrested in Topeka, Kansas, though no rifle was ever found.

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.), cert. denied, ___ U.S. ___, 120 S.Ct. 48, ___ L.Ed.2d ___ (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 "possession" stated in relevant part, "Momentary, transitory, or temporal control of a thing, without criminal intent, is not possession." Indeed, the trial court twice refused to give the jury this proposed instruction. Initially, when deciding upon the proper jury charge, the court rejected Adkins' proposal. Instead, the court gave a standard possession instruction which indicated in order to convict, the jury must find Adkins "knowingly possessed" a firearm and further defined both "possession" and "knowing," but did not mention the concept of "fleeting possession." In his closing argument, however, defense counsel was allowed to and did argue that the government's evidence was insufficient, showing Adkins only temporarily possessed the rifle when he carried it from the hardware store to Bluma's vehicle. During deliberations, the jury inquired about possession, 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 upon but a momentary possession.

A defendant is entitled to a theory of defense instruction when that instruction articulates a correct statement of the law and sufficient evidence has been presented to support the jury's finding in defendant'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 Adkins' fleeting possession instruction may indeed constitute a correct 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 defendant merely momentarily possessed contraband, but also that the defendant either lacked knowledge that he possessed contraband or had a legally justifiable reason 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 only when the possession was both temporary and justified for self-defense purposes. See United States v. Panter, 688 F.2d 268, 271 (5th Cir. 1982). The Fifth Circuit earlier emphasized the knowledge or intent element of the fleeting possession theory when it discussed it in the context of a drug possession case: "[Defendant's] possession of the one [marijuana] cigarette was a mere fleeting possession, not inconsistent with honest intention or mere curiosity, and his throwing the cigarette away upon being ordered to stop is not, in our opinion, substantial evidence of a guilty knowledge or intent. Criminal intent is a sine qua non 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 possession is momentary is immaterial" to prosecution for possession of unregistered firearm). Moreover, in an unpublished order and judgment addressing 18 U.S.C. § 922(g), this court noted "federal firearms laws impose 'something approaching 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 10th Cir. R. 36.3) (quoting United States v. Nolan, 700 F.2d 479, 484 (9th Cir. 1983)).

Thus, even if a felon held a firearm for a mere second 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 who momentarily possessed a firearm genuinely lacked knowledge that he possessed 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 burden of proving intent. Therefore, the court need only give a fleeting possession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked either knowledge he possessed contraband or criminal intent to possess it.

Here, the one possible interpretation of the evidence which Adkins believes supports a fleeting possession theory in no way indicates his lack of criminal knowledge or intent. Even if the jury believed Adkins 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 The evidence that was presented regarding Adkins' activity 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 suggested. Because this evidence did not give rise to a possible inference that Adkins' possession was done either ignorantly, accidentally, or justifiably, the district court did not abuse its discretion in failing to give the fleeting possession instruction. The jury was then left with the responsibility of determining whether 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 evidence a rifle similar to the one charged in the indictment, because the government never recovered the charged rifle. Unlike the charged rifle, however, the demonstrative rifle had a bayonet affixed to it and a slightly longer...