F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 24, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-2277
v. (D.C. No. CR 06-756 MV)
(D. N.M.)
CASSANDRA BENALLY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.
This case involves Defendant Cassandra Benally’s (Benally) attempt to secure a
necessity-defense instruction in her trial on a charge of possession of a firearm by her and
co-defendant Kelly on high-school grounds, which they knew and had reasonable cause
to believe was a school zone. Benally’s appeal raises one issue: whether the trial judge
erred by refusing to instruct the jury with regard to Benally’s defense of necessity on
Count 1, the firearm-possession charge. She was acquitted on Count 2, which charged
Benally and Defendant Kelly with discharging the firearm, a 20 gauge shotgun, in a
school zone. We conclude that the trial judge did not abuse her discretion in refusing to
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
give the requested necessity-defense instruction, and we affirm Benally’s conviction.
I. BACKGROUND
A. Facts
On December 15, 2005, Benally lived in Shiprock, New Mexico, with her
grandmother, mother, sister, and brother. Trial Tr. at 30. Sometime during the early
afternoon, Jay Ray Kelly (Kelly), the sisters’ mutual friend, went to this family residence.
Id. at 32-33. When Kelly arrived, Benally greeted him outside and at some point began
telling him about her uncle’s shotgun. Id. at 33-34, 319-20. Before long, Benally came
back in the house with an idea first suggested by Kelly: to shoot inanimate targets with
her uncle’s shotgun, which he stored in the residence. Id. at 34, 69, 305. Benally’s sister
did not object, so either Benally or her sister retrieved the shotgun from a room in the
residence, and Benally put the gun in Kelly’s car. Id. at 34, 321, 355-56, 375. Benally’s
sister brought the ammunition, about seven shotgun shells, and they all piled into Kelly’s
car. Id. at 35, 356. They were off to shoot bottles at a rural gravel pit. Id. at 35, 70.
The three of them went to a remote area and took turns firing the shotgun. Id. at
357. They each handled and fired the gun. Id. at 36, 357. After exhausting their
ammunition, they returned to Benally’s grandmother’s house. Id. at 72. But they decided
that they hadn’t had enough. Id. at 36-37, 72. So they went to the residence once again
and located Benally’s uncle’s shotgun shells, planning to use them to shoot more targets
at their grandmother’s farm. Id. at 37, 358. Before their target practice continued,
however, Kelly informed the sisters that he needed to pick up his sister from the local
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high school, and the sisters agreed to go with him. Id. at 37-38, 41, 308, 326. Benally put
the gun on the front passenger side of Kelly’s vehicle, in which she was the front
passenger and Kelly was the driver. Id. at 38, 39, 40, 308-09.
Kelly then drove to the high school with Benally seated next to the firearm and
with Benally’s sister in the backseat. Id. at 41, 42. Benally admitted on cross-
examination that she had “ready access” to the firearm when they entered the school
grounds; she stated that she put the gun in the car before entering the school zone and that
she could have grabbed the gun at any time. Id. at 379-80. Indeed, Benally believed that
she possessed the firearm when she entered the school zone and testified that no one was
allowed to take the shotgun from the car seat without her permission. Id. at 382. Kelly
testified similarly: he would not have driven to the school with the gun in the car if
Benally or her sister instructed him not to do so. Id. at 328.
After they arrived on school grounds, Kelly parked his car. Id. at 43. The gun still
rested between Kelly and Benally. Id. at 380. But because they could not see Kelly’s
sister, Kelly and Benally exited the car and walked in and around the school looking for
Kelly’s sister, leaving behind Benally’s sister and the gun. Id. at 43-44, 309.
Kelly and Benally returned with Kelly’s sister. Id. at 44, 237, 310. They all got
back into the vehicle where the shotgun still rested, but Kelly’s sister exited the car and
walked toward the school to speak with her friends. Id. at 46, 237, 310, 330. At this
point, the alleged necessity-creating event had already been set in motion: Kelly’s
presence and gesturing on the school grounds had provoked Cordell Washburn. Id. at 47,
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362. Soon after Benally and Kelly returned to Kelly’s car, Washburn pulled his car next
to Kelly’s. Id. at 46-47. He emerged from his car with an aluminum baseball bat, both
cussing at Kelly and acting as if he was going to smash Kelly’s windows with the bat. Id.
at 47, 48, 78. It appeared that a fight was about to occur. Id. at 79, 364.
At that point, Kelly grabbed the shotgun around the barrel. Id. at 94. Why Kelly
grabbed the gun is a matter of debate. Benally told the police that Kelly grabbed the gun
because he was drunk and he wanted to show off the shotgun to the bat-wielding student.
Id. at 240. She further explained at trial that she heard Kelly say something about loading
or unloading the gun before he grabbed it, but that Kelly cocked back the gun’s hammer
instead. Id. at 366. According to Benally, this triggered her to grab the gun from Kelly
because she thought that introducing a gun into an already escalating situation would
prove deadly. Id. at 366-67.
Kelly testified that he grabbed the gun because he thought that a fight might ensue
and he did not want the police to catch him with a firearm on school property. Id. at 332.
Thus, he claimed that he grabbed the gun to help Benally unload it and stow it away. Id.
at 332, 336.
Despite their alleged motives, Kelly and Benally briefly struggled to control the
weapon, and it discharged bird shot into Kelly’s wrist when he pulled the gun toward
him. Id. at 48, 95, 336. The commotion created by Kelly and Washburn’s altercation
alerted a passerby, who then alerted the school’s security. Id. at 106. A school security
guard arrived at the scene immediately after Kelly was shot. Id. at 108. The guard found
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the gun and ammunition in the front passenger seat and turned this evidence over to the
police. Id. at 111-13.
B. The Trial and Benally’s Requested Instruction
The Government charged Benally and Kelly with possessing a firearm in a school
zone (Count I), in violation of 18 U.S.C. § 922(q)(2)(A), 18 U.S.C. § 924(a)(2), and 18
U.S.C. § 2 (aiding and abetting), and knowingly or recklessly discharging a firearm in a
school zone (Count II), in violation of 18 U.S.C. § 922(q)(3)(A), 18 U.S.C. § 924 (a)(4),
and 18 U.S.C. § 2. R., Vol. I, Doc. 1. Kelly pleaded guilty to possessing a firearm in a
school zone in exchange for the Government’s promise to drop the second count of the
indictment. Benally took her chances and went to trial.
At the close of the evidence, Benally submitted a proposed jury instruction on her
necessity defense:
Ms. Benally has asserted the affirmative defense that she is not guilty
because if she knowingly possessed or discharged a firearm on school
grounds, she did so out of necessity. You may not find Ms. Benally guilty
of that portion of the allegations contained in Count 1 that concern the
point in time Mr. Washburn approached Mr. Kelly’s vehicle with a bat to
the point in time Mr. Kelly was shot or Count 2 if you find and agree that
the defense proved by a preponderance of the evidence the following
elements:
First, that there was no legal alternative to violating the law;
Second, that the harm to be prevented was imminent; and
Third, that a direct, casual relationship existed between Ms.
Benally’s action and the avoidance of harm.
R., Vol. I, Doc. 59.
According to Benally, this language instructs the jury that it may not convict her of
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possessing a firearm in a school zone if (1) Benally possessed the gun out of necessity
when she grabbed it from Kelly, and (2) the jury found that this was the only time Benally
possessed the gun in the school zone. The crux of Benally’s argument to the district court
was that the evidence supports the finding that Benally did not possess the firearm until
she touched it. Trial Tr. at 416, 418-419 (stating that “[s]he is only in proximity [to the
gun] . . . [and] didn’t really at any time ever attempt to exercise dominion and control . .
.”). And since the evidence allegedly supported the finding that when she touched the
gun, she then did so out of necessity, Benally concludes that the court should have given
the instruction. Id.
The district court gave the necessity-defense instruction as to Count II (discharging
a firearm in a school zone), but refused to give the instruction as to Count I (possessing a
firearm in a school zone). Id. at 430. The district court reasoned that the evidence did not
support giving the instruction as to Count I. Id.
The jury convicted Benally of Count I, but acquitted her of Count II. R., Vol. I,
Doc. 63. The district court sentenced Benally to 63 days’ imprisonment (time served), 2
years’ supervised release, and a $100 special assessment. R., Vol. I, Doc. 72. Benally
now appeals the district court’s refusal to provide the necessity-defense instruction to the
jury. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
II. DISCUSSION
A.
We review for abuse of discretion a district court’s refusal to supply an instruction
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for the necessity defense and consider the instructions as a whole de novo to determine
whether they accurately apprise the jury of the governing law. United States v. Williams,
403 F.3d 1188, 1195 n.7 (10th Cir. 2005). The district court “has substantial discretion
wording the instructions, as long as they adequately present the law and the issues.” Id.
If the district court erred by refusing to give a proposed instruction, “we must determine
whether the conviction must be set aside because the ‘error had a substantial influence on
the outcome of the trial or leaves us in grave doubt as to its influence on the verdict.’ If
the error is harmless the conviction will stand.” United States v. Al-Rekabi, 454 F.3d
1113, 1119 (10th Cir. 2006).
A defendant is entitled to a theory-of-defense instruction if the defense theory is
supported by sufficient evidence for a jury to find in the defendant’s favor. United States
v. Grissom, 44 F.3d 1507, 1512 (10th Cir. 1995). See generally Al-Rekabi, 454 F.3d at
1122 (stating that “[a defendant] must prove his [or her] claimed defenses by a
preponderance of the evidence”). A defendant is not entitled to an instruction, however,
if the defense theory lacks a reasonable factual or legal basis. Grissom, 44 F.3d at 1512.
The Government charged Benally with possessing a firearm in a school zone, in
violation of 18 U.S.C. § 922(q)(2)(A), 18 U.S.C. § 924(a)(2), and 18 U.S.C. § 2. Section
922(q)(2)(A) required the Government to prove that Benally knowingly possessed a
firearm, which had moved in or which otherwise affected interstate or foreign commerce,
in an area she knew, or had reasonable cause to believe, was a school zone. The parties
do not dispute that the gun moved in interstate commerce and that Benally possessed the
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gun in an area she knew to be a school zone. But the parties dispute two critical issues:
first, whether Benally possessed the firearm in a school zone outside of the time frame
when Kelly’s altercation with Washburn allegedly justified Benally’s possession; and
second, whether Benally justifiably possessed the gun when she grabbed the gun from
Kelly. For Benally’s appeal to be successful, she must show that the jury had sufficient
evidence before it to conclude that she did not possess the weapon in a school zone before
the incident with Kelly and that she justifiably grabbed the weapon from Kelly. See
Grissom, 44 F.3d at 1512 (stating that “a defendant is not entitled to an instruction which
lacks a reasonable factual and legal basis”).
To assess the evidence of Benally’s possession, we must define what it means to
possess a firearm. Benally admitted actually possessing the gun throughout the day, but
the parties dispute whether she constructively possessed the weapon when she entered the
school zone. While Benally urges us not to address this issue, arguing that whether she
possessed the gun is a quintessential jury question, her request misconceives the nature of
our inquiry. Benally was entitled to her proposed instruction only if the evidence
submitted supported her defense theory. Thus, we ask only one overarching question
when considering whether the evidence sufficiently supports a conclusion that Benally
did not constructively possess the weapon in a school zone: are there facts to support
Benally’s request for the instruction?
This Court has carefully explained the contours of the constructive-possession
doctrine. In Al-Rekabi, 454 F.3d at 1118, 1120, we stated that “constructive possession
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exists where the defendant knowingly has the power to exercise control or dominion over
the item. . . . A knowing ability to control is all constructive possession requires, even in
a joint occupancy situation.” Although constructive possession may be proved by
circumstantial evidence, we explained that we would not uphold a conviction based on
constructive possession unless “there is some evidence ‘supporting at least a plausible
inference that the defendant had knowledge of and access to the weapon . . . .’” Id. at
1118-19. Put otherwise, in a joint occupancy case, there must be some connection or
nexus between the defendant and the firearm. United States v. Michel, 446 F.3d 1122,
1128 (10th Cir. 2006).
The “sufficient-nexus” requirement takes the form of a five-part rule:
(1) proximity alone may not establish knowledge and access in a joint
occupancy case, (2) neither may proximity alone support a finding of
dominion and control in a joint occupancy case, (3) evidence of
knowledge and access gives rise to a permissive inference of dominion
and control, (4) evidence of knowledge and access may be proved by
direct evidence, or inferred from circumstantial evidence, so long as the
circumstantial evidence includes something other than mere proximity, (5)
proximity may be considered with other evidence in the case to support an
inference of knowledge and access, and dominion and control over the
firearm.
United States v. Jameson, 478 F.3d 1204, 1209-10 (10th Cir. 2007).
We have explained the elements of the necessity defense in comparable detail, but
we have urged “the parsimonious use of justification instructions” and noted that “[t]he
necessity defense is a narrow exception to stringent federal firearm laws.” Al-Rekabi,
454 F.3d at 1117, 1121 (citing United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir.
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1999) (observing that the “federal firearms laws impose something approaching absolute
liability”) (internal quotation omitted)). “The necessity defense may excuse an otherwise
unlawful act if the defendant shows that ‘(1) there is no legal alternative to violating the
law, (2) the harm to be prevented is imminent, and (3) a direct, causal relationship is
reasonably anticipated to exist between defendant’s action and the avoidance of harm.’”
Id. at 1121. The defense may be asserted “only by a defendant who was confronted with .
. . a crisis which did not permit a selection from among several solutions, some of which
did not involve criminal acts.” Id.
B.
Applying these principles here, Benally’s appeal must fail. It is indisputable that
Benally constructively possessed the firearm when she entered the school zone. First,
Benally had knowledge of and access to the gun when she entered the school zone. She
took the gun from her house, used it to shoot inanimate targets, and rode in a vehicle into
the school zone with the gun by her side. When she entered the school zone, Benally
knew that the weapon was next to her in the vehicle. Indeed, on cross-examination
Benally admitted that she had “ready access” to the shotgun; Mr. Kelly drove onto the
school ground, and the shotgun was still by her. She admitted that she “could have
grabbed it at any time.” Trial Tr. at 379.
Second, Benally had the power to exercise dominion and control over the firearm,
even if jointly with her sister and Kelly. She repeatedly handled the gun that day and no
evidence suggests that her dominion and control over the shotgun were severed before
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she entered the school zone. Again, we note that Benally admitted that she had
knowledge of and access to the gun when she entered the school zone, giving rise to an
inference of dominion and control. Moreover, Benally admitted she was “responsible for
that shotgun.” Id. at 381. Benally explained that by “responsible” she understood that
she “had possession of it,” and conceded that she “had to take care of that shotgun . . . .”
Id. at 381. She further admitted that she could grab the shotgun at any time. Moreover,
Kelly testified that if Benally or her sister told him that they were not taking the gun to
the school, he would have complied with this instruction. Although the question in
constructive-possession cases is whether the defendant had the ability to control the
weapon, not the right to control, see Al-Rekabi, 454 F.3d at 1120, this testimony further
supports the conclusion that she had the ability to exercise dominion and control over the
gun.
Finally, Benally’s proximity to the gun, combined with her testimony about her
other connections to the gun, also supports an inference of knowledge and access and
dominion and control. Considering all this evidence, a reasonable jury could conclude
only that Benally constructively possessed the shotgun.
Benally’s argument that the jury could find to the contrary is not supported by any
evidence, but is seemingly derived from Benally’s misunderstanding of the constructive-
possession doctrine and the evidence presented. See Grissom, 44 F.3d at 1513 (noting a
case where the court held that the theory-of-defense instruction was properly refused
when it “was essentially a recounting of the facts as seen through the rose-colored glasses
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of the defense . . .”). Specifically, Benally wrongly asserts that the jury could conclude
that “her relationship to the firearm was one of mere proximity.” Aplt. Reply Br. at 5. As
explained above, the evidence does not support this conclusion.
Benally also argues that she did not constructively possess the firearm because she
did not exercise dominion and control over it when it rested next to her in Kelly’s vehicle.
Id. at 4, 6. If by this argument Benally suggests that she did not constructively possess
the firearm because she did not actually or physically possess it, see id. at 6 (comparing
her later actual possession of the firearm with her being a “mere passenger in Mr. Kelly’s
car”), her argument plainly contradicts our precedent. See Al-Rekabi, 454 F.3d at 1120.
If she means to suggest that she did not otherwise affirmatively exercise dominion and
control, whatever that might mean, our precedent requires the Government to prove only
that Benally knowingly had the power to exercise dominion or control, which may be
inferred from her knowledge of and access to the gun. See id. at 1118, 1120 (stating that
“constructive possession exists where the defendant knowingly has the power to exercise
control or dominion over the item. . . . A knowing ability to control is all constructive
possession requires, even in a joint occupancy situation”) (emphasis added); Jameson,
478 F.3d at 1209 (stating that “evidence of knowledge and access gives rise to a
permissive inference of dominion and control”).
In sum, Benally’s testimony and all the evidence in this case points in one
direction: while entering the school zone, Benally had knowledge of and access to the
firearm, and, based on these facts and her proximity to the gun, she had the power to
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exercise dominion and control over the firearm. As Benally recognizes, the necessity
defense would not apply to the time she entered the school zone because, inter alia, there
was then no imminent harm to prevent. Thus, the record supports but one conclusion:
Benally constructively possessed the firearm when she entered the school zone—before
the alleged necessity arose.
C.
Defendant Benally’s proposed instruction would temporally split the events in
dispute. According to Benally, the jury could have found that she did not possess the
weapon in a school zone until she grabbed it from Kelly—an action the jury might have
concluded was performed out of necessity. Since no instruction informed the jury that it
could acquit Benally under this scenario, and since she concludes that a jury so instructed
might have done so here, Benally asserts that the district court committed reversible error.
The fundamental problem for Benally arises with her major premise, that a jury
could have found that she did not constructively possess the weapon in a school zone. As
explained, no evidence supports this conclusion. To be sure, this would be a closer case
if Benally presented sufficient evidence for a jury to conclude that she did not
constructively possess the firearm. In this case, however, the jury’s only analytical route
to Benally’s ultimate conclusion that the necessity defense applied would have been
ignoring the undisputed evidence or the constructive-possession instruction. The district
court did not abuse its discretion by avoiding this result, as a reasonable jury could
conclude only that Benally committed the crime charged before the alleged necessity-
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creating event transpired. In light of these facts, the instructions as given accurately
conveyed the governing law.
We find no error in the trial judge’s refusal to give the necessity-defense
instruction. We therefore AFFIRM the conviction.
Entered for the Court,
William J. Holloway, Jr.
Circuit Judge
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