[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 21, 2010
No. 09-10316
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00183-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMIEN SHABONTA HOWARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 21, 2010)
EDMONDSON and MARCUS, Circuit Judges, and BARBOUR,* District Judge.
*
Honorable William Henry Barbour, Jr., United States District Judge for the Southern
District of Mississippi, sitting by designation.
PER CURIAM:
The issue in this appeal is whether the evidence presented by the
government was sufficient to convict Howard of being a felon in possession of a
firearm. The answer is, “Yes.”
We view the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor. To
establish insufficiency, it is not enough for the defendant to put forth a reasonable
hypothesis of innocence. The possession can be either actual or constructive.
“‘Constructive possession exists when a defendant has ownership, dominion, or
control over an object itself or dominion or control over the premises or the vehicle
in which the object is concealed.’” United States v. Hernandez, 433 F.3d 1328,
1333 (11th Cir. 2005) (quoting United States v. Leonard, 138 F.3d 906, 909 (11th
Cir. 1998)).
The pertinent handgun was found in a motor vehicle which had been
pursued by law enforcement for approximately 30 minutes in marked cars at
speeds up to 100 mph. The chase ended when the car in which the gun was found
crashed. The evidence was that Howard was the only person in the vehicle in
which the gun was found. The safety on the loaded gun was off, and it was
2
cocked. A police officer testified that, once the vehicle crashed, the officer saw
Howard moving around inside the vehicle as if he were searching for something.
The gun and some drugs were found in the car. Howard told the police that the
driver of the car in which he was found had run away. But a police officer who
had observed the vehicle from a helicopter never saw anyone but Howard come out
of the car. The government also presented the testimony of a current jail inmate
who testified that he had often exchanged cocaine with Howard and that he had
seen Howard with a gun in an automobile before. From this evidence, we conclude
that a reasonable jury could find that Howard controlled the vehicle and knowingly
exercised dominion over the handgun found in the vehicle.
AFFIRMED.
3