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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11423
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-00365-LSC-JEO-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEANDRE DONNELL DUNKLIN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(September 15, 2015)
Before HULL, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Deandre Donnell Dunklin appeals his conviction for unlawful possession of
a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues
that the government’s evidence was insufficient to show that he had personal
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dominion over the firearm or the intent to exercise control over the firearm,
because (1) no individual witnessed him holding the weapon, and (2) no
circumstantial evidence placed the weapon in his physical possession. After
review of the record and the parties’ briefs, we affirm.
I
On May 14, 2013, Lisa Budges saw Mr. Dunklin standing outside her
apartment arguing with another man. According to Ms. Budges, Mr. Dunklin held
a gun in the man’s face and said he “didn’t give a damn” and was “ready to go
back to prison anyway.” Ms. Budges could not identify the type of gun Mr.
Dunklin was holding.
On the same night, John Stearnes, a neighbor of Ms. Budges, saw Mr.
Dunklin standing on Ms. Budges’ porch. The next morning, Mr. Stearnes found
that someone had broken into his shed. He saw Mr. Dunklin sitting on the hood of
a red Firebird and reported him as a suspicious person.
Detective Ibor Sanders and Detective Roderick Shelby of the Birmingham
Police Department responded to Mr. Stearnes’ call. When they arrived, Detective
Sanders saw a male, later identified as Mr. Dunklin, sitting on a red Firebird. As
he approached, Detective Sanders saw Mr. Dunklin take his left hand out of his
pocket, reach down to the ground, “disappear[] for a second,” and then “raise[] up
real quick.” When the detectives approached Mr. Dunklin, Detective Sanders
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looked down and saw a gun lying on the ground at Mr. Dunklin’s feet. Detective
Shelby secured Mr. Dunklin, and Detective Sanders took the gun. Mr. Dunklin
was shaking uncontrollably and told the detectives that he had “nervous
conditions.”
Mr. Dunklin was indicted for possessing a firearm as a felon on May 15,
2013, the morning that he was arrested, and not for his alleged actions on Ms.
Budges’ porch the night before. At Mr. Dunklin’s trial, both detectives testified
that no loose ammunition was found in Mr. Dunklin’s possession and that they did
not hear the sound of a gun hitting the ground when Mr. Dunklin put his left hand
down. Detective Shelby admitted that it would be difficult for even a big man to
conceal the shiny pistol in his hand on a sunny day. Both detectives testified that
nothing else other than the gun was on the ground near Mr. Dunklin’s feet, and no
other people were in the area. The detectives did not submit the gun to be dusted
for fingerprints.
At the close of the government’s case, Mr. Dunklin’s counsel moved for a
judgment of acquittal, asserting that the government failed to show that Mr.
Dunklin had actual or constructive possession of the gun. The district court denied
Mr. Dunklin’s motion. Mr. Dunklin chose not to testify, and the defense did not
present any evidence. The jury found Mr. Dunklin guilty of violating 18 U.S.C. §
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922(g)(1), and the district court sentenced him to twenty-five months’
imprisonment.
II
We review the sufficiency of the evidence de novo and construe all
reasonable factual inferences in favor of the jury’s verdict. See United States v.
Jimenez, 564 F.3d 1280, 1284 (11th Cir. 2009). Evidence is deemed sufficient to
support a conviction if a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt. Id. at 1484–85.
To prove that Mr. Dunklin violated § 922(g)(1), the government must show
that (1) he knowingly possessed a firearm, (2) he was a convicted felon, and (3) the
firearm was in or affecting interstate commerce. See United States v. Palma, 511
F.3d 1311, 1315 (11th Cir. 2008). The parties stipulated that Mr. Dunklin was a
convicted felon and that the firearm had traveled in interstate commerce.
Therefore, the only question at issue is whether Mr. Dunklin knowingly possessed
the firearm.
A
The government may satisfy § 922(g)’s possession element by proving
either actual or constructive possession. United States v. Albury, 782 F.3d 1285,
1294 (11th Cir. 2015). Actual possession is shown by establishing that the
defendant had physical possession or personal dominion over the thing allegedly
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possessed. See United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996).
Constructive possession exists when the defendant “exercises ownership,
dominion, or control over the item or has the power and intent to exercise
dominion or control.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.
2006). Alternatively stated, constructive possession exists when the defendant has
“knowledge of the thing possessed coupled with the ability to maintain control
over it or reduce it to his physical possession.” United States v. Baldwin, 774 F.3d
711, 722 (11th Cir. 2014). A defendant’s mere presence near an item is, by itself,
insufficient to establish possession. See United States v. Beckles, 565 F.3d 832,
841 (11th Cir. 2009).
Possession may be shown through direct or circumstantial evidence. See
United States v. Smith, 591 F.2d 1105, 1107 (5th Cir. 1979). Circumstantial
evidence of constructive possession may include that the thing allegedly possessed
was in plain sight or that the defendant had ready access to it. See United States v.
Greer, 440 F.3d 1267, 1271 (11th Cir. 2006) (holding that ammunition found in
plain view on a table in a home where only the defendant resided was sufficient to
establish constructive possession). Cf. United States v. Edwards, 166 F.3d 1362,
1364 (11th Cir. 1999) (holding that the defendant did not have constructive
possession of cocaine located in the locked trunk of an undercover agent’s car
because the defendant did not have access to the trunk).
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A defendant’s behavior may also support a finding of constructive
possession. Instructive cases are United States v. DeLeon, 641 F.2d 330, 335–36
(5th Cir. Apr. 1981) (holding that the defendant’s actions—talking to a fellow
passenger, turning around, and looking out the back window of the car as they
were pursued by narcotic agents—was evidence that he constructively possessed a
bag of cocaine that was thrown from the car during the pursuit), and United States
v. Carrillo, 565 F.2d 1323, 1325 (5th Cir. 1978) (holding that vehicle passenger’s
display of extreme nervousness during border agent’s search, in addition to the
presence of heroin under the car’s front console between the driver and passenger
seats, was sufficient to establish that the passenger had constructive possession of
the heroin).
B
Drawing all reasonable inferences in favor of the verdict, we hold that a
reasonable trier of fact could find that the evidence established beyond a
reasonable doubt that Mr. Dunklin knowingly possessed the gun.
First, a reasonable jury could infer from the evidence that Mr. Dunklin had
physical possession of the gun as the police approached, then removed it from his
pocket, reached down, and placed it on the ground at his feet. Detective Sanders
testified that, as he approached Mr. Dunklin sitting on the red Firebird, he saw Mr.
Dunklin take his left hand from his pocket, reach down to the ground, and then rise
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back up. Although Detective Sanders did not actually see a gun in Mr. Dunklin’s
hand or hear a gun hit the ground, when the detectives approached Mr. Dunklin,
the gun, and nothing else, was on the ground at Mr. Dunklin’s feet. No other
individuals were in the area. Furthermore, a jury could infer that Mr. Dunklin’s
uncontrollable shaking, which he attributed to “nervous conditions,” indicated his
nervousness at the prospect of the police discovering his illicit firearm. This
circumstantial evidence is sufficient to support a finding of actual possession.
Second, even if Mr. Dunklin did not remove the gun from his pocket as the
police approached, a jury could reasonably find that Mr. Dunklin had knowledge
of the gun’s presence and the “ability to maintain control over it or reduce it to his
physical possession, even though he [did] not have actual personal dominion.”
Baldwin, 774 F.3d at 722. Again, the gun was found at Mr. Dunklin’s feet, and no
other individual was in the area. The gun was in plain view on the ground, and Mr.
Dunklin had ready access to it. See Greer, 440 F.3d at 1271; Edwards, 166 F.3d at
1364. A jury could find that Mr. Dunklin’s uncontrollable shaking indicated his
knowledge of the gun’s presence and fear that the police would discover it. See
Carrillo, 565 F.2d 1323 at 1325; DeLeon, 641 F.2d at 335–36. This circumstantial
evidence is sufficient to support a finding of constructive possession.
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III
Because the government presented sufficient evidence to support a finding
of knowing possession under 18 U.S.C. § 922(g)(1), we affirm Mr. Dunklin’s
conviction.
AFFIRMED.
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