United States v. Anthony Randy Duncan

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 4, 2005
No. 04-13018 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-00031-CR-HL-7

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY RANDY DUNCAN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
_________________________

(May 4, 2005)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

Anthony Randy Duncan appeals his jury conviction for possession of a

firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).
Duncan argues that the government's evidence was insufficient to prove beyond a

reasonable doubt that he was guilty of the offense.

I. Facts and Procedural Background

On the afternoon June 6, 2003, Lowndes County Sheriff's Deputy Jimmy

Royals and three other officers were seated in an unmarked police car that was

stopped behind two other cars at an intersection. Deputy Royals saw Anthony

Duncan approaching the intersection on foot. When Duncan recognized the officers,

whom he knew, he looked surprised, turned around, walked quickly in the opposite

direction, rounded a corner, and disappeared from view. The officers immediately

pulled their car onto the sidewalk, drove to the intersection, and saw Duncan some

100 feet away on the other side of the street.1

When the officers caught up with Duncan, they noticed that his demeanor had

changed. While he had appeared nervous upon first seeing the officers, he was now

relaxed and smiling. Thinking that Duncan might have disposed of contraband,

Deputy Royal retraced what he believed to be Duncan's path. While so doing, Deputy

Royal found a .25 caliber Lorcin pistol lying on the ground about 50 feet from the

intersection where he had initially spotted Duncan. Scuff marks on the ground

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From the distance that he traveled in the few seconds he was out of their sight, the
officers surmised that Duncan must have been running.

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indicated that the gun may have been tossed to its location, and the gun was dry

despite the fact that the surrounding area was wet from the day's intermittent rain.

Fingerprint testing revealed a print matching that of Duncan's right thumb on the

pistol grip.

A convicted felon, Duncan was subsequently indicted for being in possession

of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). At trial, Deputy Royals

admitted that the area where he found the pistol was a high-traffic residential and

business area and that he did not see Duncan holding or disposing of the pistol. He

further testified that he was not sure which side of the street Duncan had walked

down and that Duncan could have gone down the opposite side of the street from

where the gun was found. Finally, Deputy Royal admitted that he did not attempt to

locate additional evidence of the gun's ownership by obtaining a search warrant for

Duncan's home.

Duncan presented no evidence at trial. At the close of the government's case,

he moved for judgment of acquittal on the ground that the government had failed to

establish actual or constructive possession of the pistol. He argued that, at best, the

government had made a tenuous circumstantial case for constructive possession. The

government argued that it had established actual possession by presenting

circumstantial evidence that Duncan possessed the pistol when he approached the

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intersection and disposed of it while out of the officers' sight. The district court

denied Duncan's motion, holding that Duncan's fingerprint on the pistol, when

combined with the other circumstances of the encounter, constituted enough

circumstantial evidence for a jury to infer possession. The jury found Duncan guilty,

and he was sentenced to 100 months of imprisonment.

II. Discussion

On appeal, Duncan argues that the government failed to prove actual or

constructive possession and that the district court should have granted his motion for

judgement of acquittal. We review de novo the disposition of a defendant's motion

for judgment of acquittal. United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir.

2001). To uphold the denial of such a motion, we need only determine that a

reasonable fact-finder could conclude that the evidence established the defendant's

guilt beyond a reasonable doubt. Id. In so doing, we view all facts and draw all

inferences in the light most favorable to the government. Id.

The government can satisfy the possession inquiry by establishing that Duncan

actually or constructively possessed the pistol. United States v. Leonard, 138 F.3d

906, 909 (11th Cir. 1998). Actual possession requires proof that the defendant had

physical possession of or personal dominion over the thing allegedly possessed. Id.

Constructive possession, on the other hand, requires proof that the defendant had

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ownership, dominion, or control over the object itself or dominion or control over the

premises where the object was located. Id. In this case, Duncan argues that the

government failed to establish actual or constructive possession, but he focuses his

argument on the latter. The government argues that it presented circumstantial

evidence sufficient to support a jury finding of actual possession.

After careful review of the record, we hold that the evidence in this case was

sufficient to allow a reasonable fact-finder to conclude beyond a reasonable doubt

that Duncan actually possessed the pistol. Duncan responded suspiciously upon

recognizing police officers, apparently ran once out of the officers' sight, and changed

his demeanor upon being apprehended. He was in close proximity to a gun that bore

his fingerprint and appeared to have been recently tossed onto the ground.

Considered together, these facts make a strong circumstantial case that Duncan

physically possessed the pistol when first spotted by the officers. Because we find

no reversible error, Duncan's conviction is

AFFIRMED.