[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12360
FEBRUARY 3, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket No. 4:08-cr-00046-CDL-GMF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD KIRKWOOD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(February 3, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Ronald Kirkwood appeals his conviction for possessing a firearm as a
convicted felon. 18 U.S.C. § 922(g)(1). Kirkwood appeals the denial of his
motion to suppress, the reading of his indictment to the jury, and the sufficiency of
the evidence. We affirm.
Kirkwood argues that the district court should have granted his motion to
suppress because the affidavit in support of the search warrant failed to provide
probable cause to search his property and, alternatively, the evidence was not
admissible under the good-faith exception to the exclusionary rule. We conclude
that the affidavit provided probable cause for the search, so we need not address
Kirkwood’s alternative argument.
The affidavit established “a connection between [Kirkwood] and the
residence to be searched and a link between the residence and . . . criminal
activity.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002). The
affidavit stated that an anonymous informant had reported that Kirkwood used his
residence “only to store money and illegal drugs” and the informant provided
details about Kirkwood’s home and business and his arrest in Arkansas. An
officer was able to verify the personal information about Kirkwood. The affidavit
stated that other officers recently had entered Kirkwood’s property and observed
that the house was being monitored using a surveillance system, there were
between 20 and 30 pit bull dogs on the property, bags of garbage were being
stockpiled in the garage, and the house appeared to be uninhabited. The officers
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had observed from the road what appeared to be a stolen utility trailer and were
entitled to enter the property to investigate, see United States v. Taylor, 458 F.3d
1201, 1204 (11th Cir. 2006), and to observe the contents of the house through its
unobstructed windows, see Harris v. United States, 390 U.S. 234, 236, 88 S. Ct.
992, 993 (1968). The affidavit also mentioned that Kirkwood had been arrested in
another county for possession of marijuana and other illegal drugs. See United
States v. Foree, 43 F.3d 1572, 1576 (11th Cir. 1996) (evidence of prior drug
activity corroborates allegations by an informant). The district court did not err by
denying Kirkwood’s motion to suppress.
Kirkwood next argues that he is entitled to a new trial because the district
court read to the jury Kirkwood’s indictment stating that in 1995 he had been
convicted of possessing heroin with intent to deliver, but this argument fails.
Although Kirkwood had stipulated that he was a convicted felon and his earlier
offense should not have been disclosed to the jury, the error of mentioning
Kirkwood’s earlier offense was not “‘so highly prejudicial as to be incurable by
the trial court’s admonition,’” United States v. Trujillo, 146 F.3d 838, 845 (11th
Cir. 1998) (quoting United States v. Lozano-Hernandez, 89 F.3d 785, 789 (11th
Cir. 1996)). The earlier offense was mentioned once without elaboration and the
nature of the offense differed from Kirkwood’s charge of possessing a firearm.
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Kirkwood did not object when the district court read the unredacted indictment to
the jury. The district court eradicated any potential error by thrice instructing the
jury that the indictment was “just an allegation . . . not proof” and by instructing
the jury that “the stipulation and the evidence did not specifically address the
specific crime which is alleged in the indictment, so you shall not consider the
specific crime that was alleged in the indictment during your deliberations.” We
presume that the jury complied with these instructions. See United States v.
Brazel, 102 F.3d 1120, 1145 (11th Cir.1997). The district court did not abuse its
discretion by denying Kirkwood’s motion for a new trial.
Kirkwood last argues that the evidence failed to establish that he
constructively possessed a firearm, but we disagree. Officers discovered four
firearms on Kirkwood’s property, including a Marlin .22 caliber rifle inside a
bedroom of Kirkwood’s house. One of Kirkwood’s former employees, Felix
Brown, testified that he owned the rifle, but “ownership is not a requirement for
possession.” United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010).
Brown testified that he had stored the rifle in Kirkwood’s shed in 2000 and had
not returned to the property since 2002, and Brown could not explain how his rifle
had been moved into Kirkwood’s house. Because “‘[p]ossession may be actual or
constructive, joint or sole,’” id. (quoting United States v. Gunn, 369 F.3d 1229,
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1234 (11th Cir. 2004)), a reasonable jury could have found that Kirkwood
constructively possessed the rifle.
We AFFIRM Kirkwood’s conviction.
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