United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2687
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Theodore Stevie Varner, *
*
Defendant-Appellant. *
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Submitted: March 16, 2012
Filed: May 18, 2012
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Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
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BRIGHT, Circuit Judge.
A jury in the district of Minnesota convicted Theodore Varner of being a felon
in possession of a firearm. The district court1 sentenced him to 235 months (19 years
and 7 months) in prison. On appeal, Varner argues (1) the evidence was insufficient
to support the verdict, (2) the district court abused its discretion in admitting evidence
of a crack pipe, and (3) the district court abused its discretion at sentencing by
declining to depart or vary downward on account of his physical condition. We
affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
I. Background
On the morning of September 22, 2010, Officers Douglas Whittaker and
Benjamin Lego of the Saint Paul police department responded to a 911 weapons call.
The 911 caller described the suspect as a black male with braids, wearing blue jeans
and a dark hooded sweatshirt. When the officers arrived at the apartment building,
Officer Lego saw a green Ford Explorer leaving the parking lot with the passenger
in the vehicle matching the description provided by the 911 caller. Officer Lego
ordered the driver to stop three times, but the driver did not comply and left the
parking lot. Officer Lego radioed a request for assistance in stopping the vehicle,
providing the description of the Explorer and its direction of travel. Officer Lego and
Officer Whittaker then got back in their squad car to follow the vehicle. Another
officer drove up to the apartment building as the Explorer was leaving and pursued
the vehicle, but by the time he caught up, it had stopped and the passenger had fled.
Officer Carl Schwartz was also in the area and responded to a call to stop a
black male in jeans and a hooded sweatshirt running west on a specific street. Officer
Schwartz saw a person matching the description, who was later identified as Varner,
cross the street in front of the police car and run south. As Officer Schwartz turned
into an alley, he saw Varner climb over a fence and fall into the alley about 100 feet
in front of him. Officers Whittaker and Lego also drove into the alley in time to see
Varner fall over the fence. Officer Whittaker saw a black item fall off Varner’s
waistband as he landed in the alley.
Varner got up and kept running while Officer Schwartz got out of his squad car
and gave chase. Officer Schwartz noticed a small black case on the ground as he ran
by the location where Varner came over the fence. As Varner ran across a gravel
driveway by a blue car, he fell again. Officer Schwartz did not see anything drop
from Varner when he fell, but the officer saw a brown-handled semi-automatic
handgun lying in the gravel as he ran by the car where Varner had fallen. Officer
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Schwartz continued to chase Varner for approximately another half-block, yelling at
him to stop, before Varner finally complied. Officer Schwartz detained Varner until
Officer Lego arrived to arrest Varner.
Officer Schwartz, Officer Whittaker, and another officer retraced the path
Varner ran in order to recover any items Varner may have dropped and to take photos
of the route. Near the blue car, the officers recovered the firearm Officer Schwartz
had seen as he chased Varner. Approximately 12-14 inches away from the firearm
the officers also found a crack pipe. As the officers continued to follow the route,
they found a black cell phone case where Varner had jumped over the fence. The
case contained a credit card with Varner’s name on it. The officers also recovered a
green lighter and two black shoes.
A grand jury charged Varner with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At the two-day jury trial, four officers involved
with apprehending Varner testified. Two analysts who tested the firearm for
fingerprints and DNA evidence also testified that the tests were negative. The person
who owned the house and the blue car next to where the police recovered the firearm
also testified that the gun was not his and that nobody in his household owned a
firearm. Finally, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and
Explosives stated the weapon was manufactured in France and traveled in interstate
and foreign commerce.
Before trial, Varner filed a motion in limine to exclude evidence that a crack
pipe was found in the alley near the gun under Rule 404(b) of the Federal Rules of
Evidence. The district court denied the motion. At the close of the government’s
case, Varner moved to dismiss the case pursuant to Rule 29 of the Federal Rules of
Criminal Procedure, arguing a reasonable jury could not conclude Varner possessed
the firearm. The district court also denied that motion. The jury subsequently found
Varner guilty.
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At sentencing Varner argued for a downward departure due to extraordinary
physical impairments under U.S.S.G. § 5H4.1. The Presentence Report (PSR) noted
Varner suffered from serious back problems after being robbed by two assailants in
February 2010. During the robbery, Varner was rammed into a door frame and
kicked repeatedly in the back. Consequently, he was diagnosed with mobile
spondylolisthiesis. The PSR indicated Varner experiences significant pain when
sitting and standing. He cannot stand or walk for more than seven or eight minutes
without experiencing pain. The district court denied Mr. Varner’s motion and
imposed a sentence of 235 months (19 years and 7 months), the bottom of the
advisory range. This appeal follows.
II. Discussion
On appeal, Varner argues (1) the evidence was insufficient to support the
verdict, (2) the district court abused its discretion in admitting evidence of the crack
pipe, and (3) the district court abused its discretion at sentencing by declining to
depart or vary downward on account of his physical condition.
A. Sufficiency of the Evidence
“[T]his court reviews the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the government, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Johnson, 639 F.3d 433, 437 (8th Cir. 2011). We will sustain a jury’s
verdict “if any rational jury could have found the defendant guilty beyond a
reasonable doubt.” United States v. Kelly, 625 F.3d 516, 518 (8th Cir. 2010)
(quotation omitted).
Varner was convicted of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). Under the statute, the government must prove the
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defendant (1) had previously been convicted of a crime punishable by a term of
imprisonment exceeding one year, (2) knowingly possessed a firearm, and (3) the
firearm was in or effecting interstate commerce. 18 U.S.C. § 922(g)(1); see also
United States v. Cowling, 648 F.3d 690, 700 (8th Cir. 2011) (listing elements). The
only element Varner contests is whether the evidence was sufficient to prove he
knowingly possessed a firearm. Varner argues the evidence was insufficient because
there was no direct or forensic evidence that he possessed the firearm, and because
the officers’ testimony was unreliable.
This court has frequently stated that a juror could reasonably conclude a
defendant fled from the police because they illegally possessed a firearm. See, e.g.,
United States v. Garrett, 648 F.3d 618, 623 (8th Cir. 2011) (“The jury could infer
from [the defendant’s] actions of fleeing the scene of the traffic stop and the
testimony about the gun that he unlawfully possessed the firearm and elected to
discard it to avoid criminal penalties.”); United States v. Arrington, 215 F.3d 855, 857
(8th Cir. 2000) (“[a] juror could reason that [the defendant’s] possession [of a
firearm] was the explanation for his dangerous and lengthy flight from police.”
(quotation omitted)). Here, the vehicle Varner was in drove away from the apartment
building after being ordered to stop three times by a police officer. After the vehicle
was out of sight of the police, the driver stopped and Varner fled—leaving the
passenger door open and his shoes behind in the process. Varner then ran across a
street in front of a police car, through a yard, jumped a fence into an alley, and
continued to run away from the police. Shortly after he fell next to the blue car,
Varner stopped running and surrendered. The firearm was recovered from the same
location where Varner fell next to the blue car, and Officer Schwartz saw the gun in
that location as he ran by in pursuit of Varner. From this series of events, a jury could
reasonably conclude Varner was fleeing the police because he illegally possessed a
firearm and only stopped after he divested himself of the weapon. Moreover, the
location of the firearm indicates that Varner lost or discarded it during the chase.
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Varner also argues the evidence was insufficient due to the lack of forensic
evidence linking him to the firearm. However, forensic evidence is not necessary for
a conviction. See, e.g., United States v. Butler, 594 F.3d 955, 965 (8th Cir. 2010)
(rejecting sufficiency claim where defendant argued there was no forensic evidence).
Both analysts who tested the firearm for forensic evidence testified the failure to find
forensic evidence on the weapon was inconclusive and that such results were not out
of the ordinary. One analyst stated he recovers identifiable fingerprints in only one
percent of cases, and the other analyst testified to finding a DNA profile about half
the time. A reasonable jury could have concluded the lack of forensic evidence was
merely inconclusive and convicted Varner based on other evidence.
Varner also challenges the credibility of the police officers, pointing to slight
discrepancies in their testimony, including how Varner fell when he went over the
fence, and the exact route of his flight. However, his arguments go directly to the
officers’ credibility as witnesses—a determination that is uniquely within the
province of the jury. See United States v. Tate, 633 F.3d 624, 629 (8th Cir. 2011)
(The jury is “the final arbiter of witness credibility.” (quotation omitted)). “[W]e
have made it clear that a jury’s credibility determinations are virtually unassailable
on appeal, and we must presume that the trier of fact resolved any conflicts in favor
of the Government.” United States v. Lowen, 647 F.3d 863, 869 (8th Cir. 2011)
(quotations omitted). Varner had the opportunity to highlight any potential
discrepancies with the officers’ testimony during trial and the jury presumably chose
to believe the officers. We will not second guess their decision on appeal.
B. Admission of Evidence
Varner also argues the district court abused its discretion in admitting evidence
of the crack pipe. This court reviews a district court’s decision to admit evidence
over an objection for abuse of discretion. United States v. Marquez-Alvarado, 501
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F.3d 971, 974 (8th Cir. 2007). “[G]reat deference” is given to the district court’s Rule
403 balancing. United States v. Banks, 553 F.3d 1101, 1107 (8th Cir. 2009).2
Rule 403 permits the district court to “exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice . . . .” Fed. R.
Evid. 403. Varner argues admission of the crack pipe would cause the jury to
presume he was a drug user and make it likely the jury would convict Varner based
on his drug use.
The crack pipe was one of a series of items alleged to have been dropped by
Varner in his flight from the police. It was found approximately 14 inches from the
firearm, and Varner surrendered to the police only after losing possession of both
illegal items. Given the location it was found and the trail of discarded items, the
crack pipe had probative value to the government’s case. Any potential prejudicial
effect was also minimized by the district court’s instructions to the jury. We conclude
2
Varner filed a motion in limine arguing the crack pipe should be excluded
under Rule 404(B) as character evidence of prior bad acts and because admission of
the crack pipe was substantially more prejudicial than probative in value. See Fed. R.
Evid. 404(B). Varner did not explicitly raise Rule 403, which permits the court to
“exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice . . . .” See Fed. R. Evid. 403. However, our caselaw has
balanced the probative value and prejudicial effect of evidence in our Rule 404(B)
analysis. See, e.g., United States v. Stenger, 605 F.3d 492, 499 (8th Cir. 2010); United
States v. Maestas, 554 F.2d 834, 836–37 n.2 (8th Cir. 1977); cf. Fed. R. Evid. 404(b)
advisory committee’s note (“The determination must be made whether the danger of
undue prejudice outweighs the probative value of the evidence in view of the
availability of other means of proof and other factors appropriate for making decision
of this kind under Rule 403.”). The district court ruled on the potential prejudicial
effect of admitting the crack pipe when it concluded the evidence was not 404(B)
evidence. Therefore, even though Rule 403 was not explicitly raised in the district
court, the issue was preserved for appeal.
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the district court did not abuse its discretion in determining the probative value of the
crack pipe outweighed the potential prejudicial effect.
C. Downward Departure
Finally, Varner argues the district court erred by not granting a downward
departure under U.S.S.G. § 5H1.4 on account of his back injuries. Under the advisory
guidelines, we generally will not review the district court’s refusal to grant a
downward departure “unless the district court had an unconstitutional motive or
erroneously thought that it was without authority to grant the departure.” United
States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010) (quotation omitted).
The sentencing guidelines recognize an extraordinary physical impairment as
a permissible ground for a downward departure at sentencing. U.S.S.G. § 5H1.4; see
also United States v. Coughlin, 500 F.3d 813, 817–19 (8th Cir. 2007) (concluding the
district court clearly erred in granting a downward departure under U.S.S.G. § 5h1.4).
Varner requested a downward departure based on significant pain from back injuries
he sustained when two assailants robbed him. The district court discussed Varner’s
back injury and medical history at length during sentencing in the context of a
potential downward departure under U.S.S.G. § 5H1.4. The district court was aware
of the authority to grant such a departure and chose not to do so, but gave Varner a
sentence at the bottom of the applicable guidelines range. No constitutional violation
was shown. While the defendant suffers a serious physical disability to his back, the
issue of sentencing him below the guidelines or not fell within the district court’s
discretion.
III. Conclusion
Accordingly, we affirm.
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