F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 9 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-5010
MARCELL JERON NORMAN,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. CR-03-69-C)
Terry Lee Weber, Tulsa, Oklahoma, for Defendant-Appellant.
Leena M. Alam (David E. O’Meilia with her on the brief), United States
Attorney’s Office, Tulsa, Oklahoma, for Plaintiff-Appellee.
Before KELLY , BRISCOE , and TYMKOVICH , Circuit Judges.
TYMKOVICH , Circuit Judge.
A jury convicted Marcell Jeron Norman on one count of possession of a
firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). The sole
issue on appeal is whether the government presented sufficient evidence to allow
the jury to conclude that Norman constructively possessed the firearm found in
the glove compartment of his car. We have jurisdiction over this appeal pursuant
to 28 U.S.C. § 1291. Finding that the government presented sufficient evidence
of possession, we affirm.
I. FACTUAL BACKGROUND
At 4:15 a.m. on December 27, 2002, Officer Antonia Hill of the Tulsa
Police Department pulled her patrol car into a QuikTrip convenience store and
parked next to a white 1991 Chevy Caprice, which was occupied by Marcell Jeron
Norman. Norman sat in the driver’s seat. After making eye contact with Officer
Hill and turning down his music, Norman left the car and entered the convenience
store. Officer Hill ran the car’s license tag through the National Crime
Information Center database and discovered that the car’s registration had
expired. (R.O.A. III, at 14–16) Norman and a friend who had been in the store,
Curtis Hubbard, left the QuikTrip and returned to the car. Norman climbed into
the driver’s seat while Hubbard sat in the front passenger seat.
Officer Hill activated her emergency lights and initiated a traffic stop as
Norman attempted to drive out of the parking lot. Norman immediately got out of
his car and opened the vehicle’s hood. According to Officer Hill’s testimony,
Norman’s actions were sufficiently odd that she drew her weapon and told
Norman to get back into the car and turn off the engine, which he did. Officer
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Hill then asked for Norman’s driver’s license and insurance verification. He had
neither. Regarding insurance verification, Norman explained that he had just
purchased the car and had not yet had a chance to get insurance. Norman also
told Officer Hill that although the car would be registered in his mother’s name,
the car actually belonged to him. (Id. at 21) Officer Hill arrested Norman for
driving without a license. (Id. at 22)
Officer Thomas Fees arrived on the scene shortly after Norman’s arrest.
Officer Fees conducted a pre-tow inventory and search of the vehicle incident to
Norman’s arrest. Officer Fees noticed that the glove compartment was locked.
Norman stated that he did not have a key to the glove compartment, and Officer
Fees did not find a key during his search of the vehicle. Officer Fees then forced
open the glove compartment where he found a loaded Glock 9 millimeter
handgun. 1 Both Norman and Hubbard denied ownership of the handgun. (Id. at
44–46) The forensic laboratory did not find any fingerprints on the gun,
magazine, or ammunition. (Id. at 71)
When Officer Hill first approached Norman’s car, she testified that
Hubbard had been seated calmly, eating a sandwich. In contrast, Norman
appeared anxious, upset, and distraught throughout the encounter. (Id. at 24–25)
1
The glove compartment was apparently easily opened without a key.
Officer Fees testified, “I was able to get my fingers inside and pull it. It wasn’t
extremely difficult. I just pulled it open.” (R.O.A. III, at 46)
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As soon as Officer Fees found the gun, however, Hubbard’s demeanor quickly
changed from relaxed to extremely upset and surprised, and he stated, “I’m not
getting in trouble for [Norman].” (R.O.A. III, at 58)
There was conflicting testimony at trial regarding whether Norman had
exclusive possession of the car on the night and early morning of the arrest.
Rutanya Simon, Hubbard’s girlfriend, testified that she and Hubbard had driven in
a Cadillac from Oklahoma City to Tulsa earlier that evening before Norman’s
arrest. According to Simon, Norman made the same drive from Oklahoma City to
Tulsa in a white Caprice. Simon also testified that before the arrest, Norman
picked up Hubbard in the same white Caprice. (Id. at 110–14) In contrast,
Rachel White, a friend of Norman’s, testified that she drove Norman from
Oklahoma City to Tulsa on the evening of his arrest. According to White, she
then dropped Norman off at Hubbard’s house at approximately 1:00 a.m. on
December 27, 2002, approximately three hours prior to Norman’s arrest. White
testified that she saw a 1991 Chevy Caprice parked in front of Hubbard’s house.
(Id. at 105) On cross-examination, however, the prosecutor impeached White by
having her admit that Norman had given her money on multiple occasions since
his arrest, that she had discussed her anticipated trial testimony with Norman’s
family, and that she was pregnant with Norman’s child. (Id. at 106–09)
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Finally, there was testimony that in February 2003, approximately two
months after Norman’s arrest, and while awaiting trial, Norman sold the white
1991 Chevy Caprice to Joshua Harris. Upon delivery of the car, which had the
same Vehicle Identification Number as the car Norman was driving on the
morning of his arrest, Norman gave Harris keys to the car, including a key to the
glove compartment. Norman also told Harris that although title to the car was in
his mother’s name, the car actually belonged to him. (Id. at 90–91) This version
of the car’s ownership was consistent with what Norman told Officer Hill the
night of the arrest.
The government charged Norman with knowing possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Norman pled not guilty to this offense and his
case was submitted to a jury. The jury returned a guilty verdict, and Norman was
sentenced to fifty-one months imprisonment.
II. DISCUSSION
A. Standard of Review
Sufficiency of the evidence to support a jury's verdict is a legal issue that is
reviewed de novo. See United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.
2002). “In order to conclude that the evidence was insufficient as a matter of
law, [the court] must view the evidence and reasonable inferences therefrom in
the light most favorable to the government and then determine that no rational
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jury could have found Defendant guilty beyond a reasonable doubt.” United
States v. Heckard, 238 F.3d 1222, 1228 (10th Cir. 2001). Furthermore, we do not
“question the jury’s credibility determinations or its conclusions about the weight
of the evidence.” United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th
Cir. 1999).
B. Sufficiency of the Evidence
Norman argues on appeal that the evidence presented at trial did not
support a conviction under § 922(g)(1). This section states in pertinent part:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
...
to ship or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
We have held that in order to prove a violation of § 922(g)(1), the
government must establish the following elements beyond a reasonable doubt: (1)
the defendant was previously convicted of a felony; (2) the defendant thereafter
knowingly possessed a firearm or ammunition; and (3) the possession was in or
affecting interstate commerce. United States v. Colonna, 360 F.3d 1169, 1178
(10th Cir. 2004) (citing United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir.
1997)). Here, Norman challenges only the second element: knowing possession.
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“Possession” can be either actual or constructive under § 922(g)(1). United
States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994). Constructive possession occurs
when a person “knowingly holds ownership, dominion or control over the object
and premises where it is found.” Lazcano-Villalobos, 175 F.3d at 843. If the
defendant has “exclusive possession of the premises,” knowledge, dominion, and
control are properly inferred. Avery, 295 at 1177 (quoting Mills, 29 F.3d at 549).
However, if more than one person occupies the premises, the government must
meet a higher burden. “In cases of joint occupancy, where the government seeks
to prove constructive possession by circumstantial evidence, it must present
evidence to show some connection or nexus between the defendant and the
firearm or other contraband.” Mills, 29 F.3d at 549. Furthermore, in order to
sustain a conviction based on constructive possession in joint occupancy cases,
the government must show “evidence supporting at least a plausible inference that
the defendant had knowledge of and access to the weapon or contraband.” United
States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002) (quoting Heckard,
238 F.3d at 1228). Thus, in the joint occupancy context, “knowledge and access
are required to prove that the defendant knowingly held the power to exercise
dominion and control over the firearm.” Colonna, 360 F.3d at 1179 (citing
United States v. Gorman, 312 F.3d 1159, 1164 (10th Cir. 2002)).
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Norman argues that the government’s evidence fails to show that he had
knowledge of or access to the firearm. In particular, he points to the lack of
direct evidence, such as fingerprints or testimony regarding how the firearm
ended up in the glove compartment of Norman’s car. App. Op. Br. at 5–7. He
argues further that it is equally probable that the firearm belonged to Hubbard.
Id. at 7. In making these arguments, however, Norman fails to take into account
numerous pieces of circumstantial evidence that a jury could reasonably rely on in
finding that he knowingly possessed the firearm.
Regarding knowledge, for example, Officers Hill and Fees both testified
that Norman acted anxious and upset throughout his encounter with the police.
Officer Hill also testified that upon arrest Norman quickly exited the car and
opened the hood (the government argued to the jury that Norman likely hid the
key to the glove compartment in the hood of the car). Norman’s anxious
demeanor and odd behavior support an inference that Norman had knowledge of
the gun. In contrast to Norman’s behavior, Hubbard sat calmly throughout the
encounter, becoming agitated only when Officer Fees located the gun. Hubbard
then quickly denied ownership of the gun and stated, “I’m not getting in trouble
for [Norman].” ( R.O.A. III, at 58) The jury could infer from these facts that
Norman knew that the gun was in the glove compartment, while Hubbard did not.
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As to access, there are several facts that support Norman’s possession of
the gun. First, the fact that Norman was driving the car at the time of his arrest
supports an inference that he had access to its contents, especially the locked
glove compartment. Next, Norman told Officer Hill and Joshua Harris that the
car belonged to him. The jury also heard testimony from Rutanya Simons that
Norman had exclusive possession of the car on the night prior to his arrest.
Although Rachel White gave contrary testimony, the issue of witness credibility is
not ours to decide, but lies solely within the purview of the jury. Hien Van Tieu ,
279 F.3d at 922. Finally, the record shows that Officer Fees testified that
although the glove compartment was locked, it was easily opened.
Nevertheless, because the car was jointly occupied at the time of arrest,
evidence of possession or ownership of the car is not enough to establish that
Norman constructively possessed the weapon. But here, a “key” fact is the glove
compartment key: in addition to evidence of possession and ownership, Norman
also had the key to the glove compartment when he later sold the car to Joshua
Harris. The key opened not only the glove compartment, but the car’s doors and
trunk as well. This fact along with the testimony regarding Norman’s exclusive
possession and ownership of the car supports the jury’s determination of the
needed “connection or nexus between the defendant and the firearm,” Mills , 29
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F.3d at 549, and supports a reasonable inference that Norman had access to the
gun found in the glove compartment of his car.
Relying on United States v. Gorman, 312 F.3d 1159 (10th Cir. 2002),
Norman places great weight on the fact that the glove compartment was locked.
App. Op. Br. at 7 (“A reasonable jury could not have concluded that Marcell
Norman had access to a locked glove compartment.”). In Gorman, we held that
evidence was sufficient to convict under § 922(g)(1) in part because the firearm
was “visible and retrievable” by the defendant. 312 F.3d at 1164. While the
accessibility of the weapon may be a factor to consider, a defendant may
constructively possess a weapon under § 922(g)(1) even though that weapon is not
readily accessible at the time of arrest. See, e.g., Hien Van Tieu, 279 F.3d at 922
(holding that defendant constructively possessed firearm located between the
mattresses in his bedroom); United States v. Merritt, 361 F.3d 1005, 1014–15 (7th
Cir. 2004) (holding that defendant constructively possessed firearms located in a
locked vault); Cf. Muscarello v. United States, 524 U.S. 125, 126–27 (1998)
(holding that the word “carried” in 18 U.S.C. § 924(c) extends to one who
“knowingly possesses” a firearm, even where the firearm is placed in a locked
glove compartment or trunk of a car).
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III. CONCLUSION
Viewed in the light most favorable to the government, the government
provided ample evidence, taken together with the reasonable inferences
therefrom, that Norman constructively possessed the firearm located in the glove
compartment of his car. We therefore AFFIRM.
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