United States v. Adkins

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 12 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 98-3322
v.

TONY GLEN ADKINS,

Defendant-Appellant.

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

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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.

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 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. 1999), cert.

denied, No. 98-1829, 1999 WL 315531 (U.S. Oct. 4, 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.

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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

1
The jury’s question stated, “We are hung up on the matter of possession.
We need help.” The judge responded in writing, “Please refer to instruction no. 8
for assistance on the issue of possession. If, after reading this instruction, you
have additional questions, you may send another message to the court.”

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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)).

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 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

2
If, for example, Comer testified that, unbeknownst to Adkins, he had
placed the rifle in a box or a bag which effectively veiled the nature of its
contents, Adkins might be entitled to a fleeting possession instruction; a jury
could interpret this evidence as demonstrating Adkins did not know he possessed
(continued...)

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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 barrel. Bluma and Comer identified the

2
(...continued)
a firearm when carrying the box or bag to Bluma’s vehicle. This court will not
decide that issue, however, because no such testimony was elicited in this case.

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demonstrative rifle as similar to the one which Bluma purchased from Comer

while Adkins was present. Additionally, Bluma’s neighbor, Will Kolterman,

testified Adkins had come to his home carrying what Adkins called an SKS rifle,

and Kolterman identified the demonstrative rifle as similar to the one Adkins

carried that day. Both Comer and Kolterman pointed out to the jury that although

the demonstrative rifle had a bayonet affixed to it, the firearm they had seen with

Adkins did not. Adkins now asserts admission of the demonstrative rifle was

error because it was not relevant for any permissible purposes, being only

introduced to inflame the prejudices of the jury. 3

3
In his Appellate Brief, Adkins argues the demonstrative rifle “was merely
offered to inflame the prejudice of the jury because of the nature of the weapon.
It had no other relevance.” It is unclear whether this constitutes a mere relevance
claim under Rules 401 and 402, or whether Adkins wishes to appeal the receipt of
the evidence under Rule 403. See Fed. R. Evid. 401, 402, 403. Nowhere in the
Brief, however, does Adkins cite Rule 403 or even argue that the demonstrative
rifle’s probative value was substantially outweighed by the danger of unfair
prejudice. See Fed. R. Evid. 403. Additionally, the trial court did not make any
on-the-record Rule 403 findings, as is often done when a party raises a 403
objection below. See United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir.
1998) (stating that in assessing Rule 403 challenges to Rule 413 evidence, “it will
be particularly important for a district court to . . . make a clear record of the
reasoning behind its findings.”); United States v. Roberts, 88 F.3d 872, 881 (10th
Cir. 1996) (per curiam) (requiring District Court to make such on-the-record 403
findings for analysis of Rule 404(b) evidence). Unfortunately, the record of
Adkins’ objection is unclear, as his only recorded objection to this evidence fails
to suggest the specific reason for the objection. Although we will undertake a
403 analysis because Adkins asserts unfair prejudice, the trial court did not err by
failing to make on-the-record findings, as there is no indication Adkins ever
explicitly raised a 403 objection below. Consistent with his Appellate Brief, it is
(continued...)

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 As in this case, the government in United States v. Hamilton charged the

defendant with violating 18 U.S.C. § 922(g), the indictment alleging Hamilton

illegally possessed a .38 caliber revolver. See 992 F.2d 1126 (10th Cir. 1993) In

rejecting Hamilton’s argument that the government failed to prove he possessed

the charged revolver, this court stated, “[T]he government merely had to produce

evidence at trial from which the jury could find beyond a reasonable doubt that

[the] [d]efendant had [possessed] a firearm . . . and was not required to prove that

the firearm was a .38 caliber revolver.” Id. at 1130. Therefore, although the

government need not prove Adkins possessed the charged rifle itself, the

demonstrative rifle was relevant to demonstrate Adkins possessed some firearm.

Specifically, the demonstrative firearm was relevant to the credibility of

Kolterman, who claimed to have seen Adkins holding a rifle. Adkins testified and

his defense counsel argued in closing that Adkins never possessed the firearm and

that Kolterman lied about seeing Adkins with a rifle. By having Kolterman

identify the demonstrative rifle as similar to the one which he claimed Adkins

possessed while pointing out the differences and eliciting an entirely consistent

description of the demonstrative and charged rifles from Bluma and Comer, the

3
(...continued)
far more likely Adkins simply stated a relevance objection to the trial court.
Nonetheless, this court has “authority to conduct a de novo balancing where the
trial court failed to make explicit findings to support a Rule 403 ruling.” United
States v. Lazcano-Villalobos, 175 F.3d 838, 847 (10th Cir. 1999).

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government substantially negated the possibility that Kolterman had offered

perjured testimony. In addition, the jury could better determine whether this

witness in fact saw Adkins holding a rifle by viewing the size and shape of a

firearm very similar to the one which Kolterman testified he saw in Adkins’

hands. See United States v. McIntosh, 23 F.3d 1454, 1456 (8th Cir. 1994)

(upholding admission of demonstrative firearm because it assisted jury in

assessing witness credibility). Finally, by more definitively establishing that

Adkins possessed the rifle at Kolterman’s home, the government strengthened the

inference that Adkins in fact carried the firearm from Comer’s store to Bluma’s

vehicle. The demonstrative rifle was thus relevant for these permissible purposes.

Rule 403 states in relevant part, “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .” Fed. R. Evid. 403. This court has repeatedly warned that “Rule

403 is an extraordinary remedy and should be used sparingly.” Wheeler v. John

Deere Co., 862 F.2d 1404, 1408 (10th Cir. 1988) (quotation omitted); see also

United States v. Rodriguez, No. 98-2259, 1999 WL 765966, at *3 (10th Cir. Sept.

28, 1999) (quoting Wheeler’s cautionary language). The demonstrative rifle had

significant probative value, as its introduction bolstered the credibility of three

key witnesses – Bluma, Comer, and Kolterman. In addition, though surely it

would have been preferable for the government to use an identical rifle to the one

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which Adkins allegedly possessed, the government did reduce substantially the

danger of any unfair prejudice by itself eliciting testimony that noted the

discrepancies between the charged rifle and the demonstrative one. Therefore,

even if the slightly longer barrel and the attached bayonet might be claimed to

have inflamed unnecessarily the jury’s prejudice, the danger of such prejudice did

not substantially outweigh the probative value of this evidence, and thus, the trial

court did not abuse its discretion in allowing the rifle’s introduction.

C. Sufficiency of the Evidence

In reviewing whether the evidence was sufficient to support the jury’s

verdict, “this court must review the record de novo and ask only whether, taking

the evidence – both direct and circumstantial, together with the reasonable

inferences to be drawn therefrom – in the light most favorable to the government,

a reasonable jury could find [the defendant] guilty beyond a reasonable doubt.”

United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir. 1999) (quotation

omitted).

To sustain a conviction under 18 U.S.C. § 922(g), the government must

prove three elements: (1) the defendant previously was convicted of a crime

punishable by imprisonment exceeding one year; (2) the defendant thereafter

knowingly possessed a firearm; and (3) the possession was in or affecting

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interstate or foreign commerce. See United States v. Capps, 77 F.3d 350, 352

(10th Cir. 1996). Adkins only challenges the sufficiency of the evidence in

proving the second element.

In United States v. Mains, this court held, “[T]he only knowledge required

for a § 922(g) conviction is that the instrument possessed is a firearm.” 33 F.3d

1222, 1228 (10th Cir. 1994). The government may prove either actual or

constructive possession. See United States v. Cardenas, 864 F.2d 1528, 1533

(10th Cir. 1989). Constructive possession exists when the defendant knowingly

has ownership, dominion, or control over an object and the premises where the

object is found. See United States v. Hager, 969 F.2d 883, 888 (10th Cir. 1992).

At trial, Bluma, Comer, and Adkins himself all testified Adkins

accompanied Bluma to Comer’s hardware store on the day Bluma purchased an

SKS Paratrooper, 7.65 x 39 mm rifle. Bluma acknowledged Adkins “must have”

carried the rifle out to her car and placed it in her truck. She further stated she

did not see the rifle again after the date of purchase and that Adkins was the only

other person with keys to the truck in which he initially placed the rifle. Even if a

reasonable jury heard and believed only Bluma’s testimony and nothing else, it

could conclude beyond a reasonable doubt Adkins knowingly possessed, both

constructively and actually, a firearm. Additionally, Kolterman testified that

Adkins later came to his house, showed him what looked like a rifle, and stated

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that it was “his” SKS rifle which was purchased at Comer’s hardware store.

Again, this testimony alone could support a reasonable jury’s determination

beyond a reasonable doubt that Adkins knowingly possessed a firearm. Because

the evidence presented at trial, viewed in a light most favorable to the

government, proved this second element beyond a reasonable doubt, this court

affirms the jury’s guilty verdict.

D. Sentencing Enhancement

Adkins challenges the trial court’s application of an Armed Career Criminal

enhancement under 18 U.S.C. § 924(e) and United States Sentencing Guidelines §

4B1.4, arguing the court improperly utilized his non-violent escape from a

juvenile facility to qualify him for this enhancement. This court reviews de novo

a sentence enhancement under 18 U.S.C. § 924 and examines the entire record

and supporting documentation to determine the legitimacy of the trial court’s

sentence. See United States v. Lujan, 9 F.3d 890, 891 (10th Cir. 1993).

18 U.S.C. § 924(e) provides in relevant part, “a person who violates section

922(g) of this title and has three previous convictions . . . for a violent felony . . .

shall be . . . imprisoned not less than fifteen years . . . .” 18 U.S.C. § 924(e)(1).

The statute then defines “violent felony” as “any crime punishable by

imprisonment for a term exceeding one year . . . that . . . involves conduct that

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presents a serious potential risk of physical injury to another.” 18 U.S.C. §

924(e)(2)(B). Further, § 4B1.4 of the United States Sentencing Guidelines

establishes the appropriate offense level for an armed career criminal under

924(e). See U.S.S.G. § 4B1.4 (1997).

The trial court applied these two statutory and guideline provisions because

Adkins had three prior felony convictions: felony escape, aggravated assault, and

aggravated battery. Adkins contends his felony escape should not qualify as a

violent felony, as it involved no acts of violence. This court, however, has held a

felony escape, violent or not, necessarily constitutes a violent felony under the

Armed Career Criminal enhancement, because such an escape always presents a

serious potential risk of physical injury to others. See United States v. Moudy,

132 F.3d 618, 620 (10th Cir. 1998). Though acknowledging this precedent,

Adkins claims Moudy was wrongly decided, arguing any felony could qualify as a

violent felony under the Moudy reasoning. This panel, however, cannot overturn

the decision of another panel of this court. See United States v. Nichols, 169 F.3d

1255, 1261 (10th Cir. 1999). Thus, this court affirms the trial court’s application

of the Armed Career Criminal enhancement and the sentence imposed.

IV. CONCLUSION

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 For the reasons set out above, the conviction and the sentence imposed by

the United States District Court for the District of Kansas at Topeka, Kansas are

hereby AFFIRMED.

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No. 98-3322, United States v. Adkins

McKAY, Circuit Judge, concurring:

I join the proposed opinion except to express my disagreement with the

assumption of the categorical statement in United States v. Moudy, 132 F.3d 618,

620 (10th Cir. 1998), which requires us to assume that felony escape “always

constitutes ‘conduct that presents a serious potential risk of physical injury to

another.’” Id.; see also United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.

1994) (adopting the reasoning of United States v. Aragon, 983 F.2d 1306, 1313

(4th Cir. 1993)). Consider, for example, state law that defines failure to return to

work release or other inmate release program as felony escape. See, e.g., Colo.

Rev. Stat. § 16-11-212 (1999) (“[A]ny willful failure to return to the jail or other

facility may be punishable as an escape under section 18-8-208,” which

establishes five levels of escape, including three felony levels, according to the

seriousness of the underlying offense); Kan. Stat. Ann. § 75-5269 (1997) (“The

willful failure of an inmate to remain within the extended limits of his or her

confinement or to return within the time prescribed to an institution or facility . . .

shall be deemed an aggravated escape from custody as provided for in K.S.A. 21-

3810,” which defines aggravated escape as either a level 8 nonperson felony or

level 6 person felony); N.M. Stat. Ann. § 33-2-46 (Michie 1998) (“Any prisoner

whose limits of confinement have been extended, or who has been granted a
visitation privilege under the inmate-release program, who wilfully fails to return

to the designated place of confinement within the time prescribed, with the intent

not to return, is guilty of an escape. Whoever is convicted of an escape under the

provisions of this section is guilty of a third degree felony . . . .”); Okla. Stat.

Ann. tit. 57 § 510.1 (West Supp. 1999) (“Failure to return to the facility [from a

work release or other permitted absence] shall be deemed an escape and subject to

such penalty as provided by law [which defines most escapes as felony, see id. tit

21 §§ 434-445].”); Utah Code Ann. § 64-13-14.5(3) (1996) (“The willful failure

of an inmate to remain within the extended limits of his confinement or to return

within the time prescribed to an institution or facility designated by the

department is an escape from custody,” which is punishable as a first, second or

third degree felony under § 76-8-309 (Supp. 1999)); Wyo. Stat. Ann. § 7-16-309

(Lexis 1999) (“The intentional act of an inmate of absenting himself without

permission from either the place of employment or the designated place of

confinement within the time prescribed constitutes an escape from custody of the

institution [a felony under § 6-5-206].”). There is a quantum difference between

the assumptions about the intrinsic danger of unauthorized departure from actual

custody, as in this case, and of failure to return from authorized departure from

actual custody. I do not wish to be seen as presuming that the latter felony is a

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violent one under 18 U.S.C. § 924(e)(2)(B). I consider such an interpretation to

be an abuse of language and a departure from the text of the statute.

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