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United States v. Brown

United States Court of Appeals, Sixth Circuit

April 25, 2018

United States of America, Plaintiff-Appellee,
v.
Jeremy Brown, Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:16-cr-20143-1-Samuel H. Mays, Jr., District Judge.

         ON BRIEF:

          Unam Peter Oh, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.

          Karen Hartridge, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

          Before: MERRITT, WHITE, and DONALD, Circuit Judges.

          OPINION

          BERNICE BOUIE DONALD, Circuit Judge

         Jeremy Brown challenges the sufficiency of the evidence to support a jury's verdict that he was guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Defendant was arrested and later indicted after he was involved in a domestic dispute where a gun was discharged and left at the scene. At trial, defendant's theory of the case was that the gun in question belonged to his then-girlfriend.

         On appeal, defendant also challenges an evidentiary ruling at trial permitting as res gestae evidence that contained references to prior domestic abuse. For the following reasons, we AFFIRM.

         I.

         Kimberly Brown and defendant began a romantic relationship in 2011.[1] Ms. Brown testified that in the early morning on Christmas Day 2015, the couple began to argue on the phone about Ms. Brown's whereabouts. Ms. Brown indicated that she was at her aunt's house, and defendant told her that he was coming over. Defendant called Ms. Brown when he arrived; she declined to let him in the house because it would set off her aunt's home alarm system while her aunt was asleep. Ms. Brown told him to come back the following morning. After defendant became agitated, Ms. Brown flipped a light on and off in the kitchen to show that she was, in fact, in the house. Defendant demanded that Ms. Brown leave the house with him, and the couple continued to argue.

         Defendant continued to call Ms. Brown and approached the house asking her to come out. He told her that if she did not come out of the house, he was going to "set it off." After hanging up the phone and declining to come out of the house, Ms. Brown heard gunshots, glass breaking, and the security alarm went off. A gun was found between two doors leading to the front of the home, an outer storm door and an inner door, both of which were locked. The glass of the front door was broken. At trial, Ms. Brown's aunt, Claudia Taylor, testified she was awakened by the gunshots. She testified that she did not see who fired the gun but had heard defendant's voice outside.

         Ms. Taylor received a phone call from her alarm company, Monitronics, in response to the alarm being triggered. On this phone call, which was admitted in its entirety as an exhibit at trial, Ms. Taylor and Ms. Brown identify defendant as the one who shot at the house. Ms. Brown also identified defendant as "dangerous" and indicated he had a history of domestic violence. The trial court also admitted as evidence two 9-1-1 calls made by Ms. Brown, one simultaneous to the incident and one a few hours later, when she was concerned that defendant had returned to the house. Each of these phone calls also references defendant's history of domestic violence.

         The Memphis Police Department arrived, and Officer Phillip Allen testified that he observed glass broken from the storm door and observed a firearm on the ground wedged between the two doors. The police officers did not recover any spent shell casings outside of the home. The recovered gun belonged to Ms. Brown, but she testified that she reported it stolen in September 2014 and, at the time, she identified defendant as the person who stole the gun.

         Defendant was arrested in January 2016, and the trial occurred in February 2017. The government submitted testimony by officers from the Memphis Police Department, Ms. Taylor, Ms. Brown, and Peggy Carlson, a custodian of records at Monitronics. Defendant moved for a motion for judgment of acquittal at the close of all the evidence, arguing that there was insufficient evidence to sustain a conviction. The district court denied the motion. After waiting overnight to contemplate his decision on testifying, defendant did not put on any proof. The jury then found defendant guilty of being a felon in possession of a handgun based on the above facts. Defendant was sentenced to 109 months' imprisonment. He filed a timely appeal.

         II.

         Defendant challenges the sufficiency of the evidence to support his conviction under § 922(g). This Court will uphold a jury verdict in a criminal case if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Soto, 794 F.3d 635, 657 (6th Cir. 2015) (quoting United States v. Lutz, 154 F.3d 581, 587 (6th Cir. 1998)). We review the evidence in the light most favorable to the government. Id. A defendant bears a "heavy burden" when claiming insufficiency of the evidence, and we will uphold a conviction based on circumstantial evidence alone. United States v. Fekete, 535 F.3d 471, 476 (6th Cir. 2008) (citing United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006); United States v. Clark, 928 F.2d 733, 736 (6th Cir. 1991)). "[W]e will reverse a judgment for insufficiency of the evidence only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence." United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007) (quoting United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991)). We resolve all issues of credibility "in favor of the jury's verdict." Fekete, 535 F.3d at 476 (citing United States v. Paulette, 457 F.3d 601, 606 (6th Cir. 2006)).

         To obtain a conviction under § 922(g), the government must prove three elements: "(1) the defendant had a previous felony conviction; (2) the defendant knowingly possessed the firearm specified in the indictment; and (3) the firearm traveled in or affected interstate commerce." United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008) (citing United States v. Schreane, 331 F.3d 548, 560 (6th Cir. 2003)). In this case, only the element of possession is disputed. A conviction under § 922(g) may be based on actual or constructive possession, id., and circumstantial evidence is alone sufficient for this Court to sustain a conviction, United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014).

         Defendant contends that there is a reasonable probability that Ms. Brown possessed the gun at issue inside the home, and that "it was equally probable that Ms. Brown fired the gun from inside the home and dropped it between the doors before the police arrived." (Appellant's Br. at 20.) It is true that there is no direct evidence as to who possessed the gun at any given time. Ms. Brown reported the gun as stolen in September 2014. At the time, she identified defendant to the police as the individual who stole the gun but was unable to offer any evidence to that effect. Yet, there was circumstantial evidence that defendant possessed the gun during the incident at issue here. As defendant submitted no testimony or evidence, the question is only whether substantial and competent evidence supports that the government met its burden of proof.

         Circumstantial evidence sufficiently supports the jury's finding that defendant possessed the gun on December 25, 2015. Ms. Brown testified that she saw defendant sitting in his truck in the driveway of her aunt's home. Defendant threatened to "set it off" if Ms. Brown did not come outside. (R. 80, PageID # 815.) Ms. Brown refused, and after she hung up, she heard a gunshot, glass breaking, and the alarm going off. Ms. Brown's aunt, Ms. Taylor, was awakened by the sound of gunshots. (Id. at PageID # 761 ("And he kept shooting. It was another shot through the door. Then a few seconds he came right back down to the back of the house and shot through the side of the house.").) Ms. Taylor asked Ms. Brown what was going on and Ms. Brown responded: "It's Jeremy out there. He's angry with me." (Id. at PageID # 762.) Ms. Taylor then heard defendant outside asking Ms. Brown, "Are you coming out now?" (Id. at PageID # 762, 779-80.) Because Ms. Taylor was familiar with defendant, she recognized his voice.

         Ms. Brown also identified defendant as the perpetrator in a 9-1-1 call. When the dispatcher asked Ms. Brown to explain the reason for her call, Ms. Brown responded that her boyfriend had been on the phone trying to get her to come outside, and then she heard a gunshot and glass breaking and she did not know whether he was still outside. She told the dispatcher that his name was Jeremy Brown and he was responsible for the shooting. She relayed the same information to the alarm company.[2] Officer Allen testified that he observed that the glass of the doors had been broken as if "someone was trying to enter . . . the residence, " and the gun was lodged between the two locked doors. (R. 80-1, PageID # 934-35.) Both Ms. Brown and Ms. Taylor testified that the gunshot came from outside the home.

         Recorded jail calls also support the jury's conviction. Defendant repeatedly stated that he did not want Ms. Brown to answer calls from authorities, which the jury could have reasonably construed as defendant's attempt to avoid prosecution for the incident. For instance, in one call he referred to his father, saying, "[a]ny number he don't know, he don't answer." (Ex. 2, Audio File "Clip23Redacted, " Timestamp 1:23-1:27.) Defendant then explained that his father "told uh his sister, which is . . . my aunt, that he don't . . . let nobody know where he was so, that [INAUDIBLE] be really beneficial for him, you get it?" (Id. at Timestamp 1:36-1:50.) In another call, defendant directed Ms. Brown to "just keep doing what you've been doing . . . if it ain't nobody you know, don't even answer." (Id., Audio File "Clip36Redacted, " Timestamp 1:47-1:53.) "As far as our auntie go, you know, [INAUDIBLE] one or two things we can do is don't . . . answer until [INAUDIBLE] next week or just go ahead and be honest and tell her that you don't . . . want to go forward with it." (Id., Timestamp 2:05-2:20.) In another call, defendant called Ms. Brown to find out if anyone had contacted her and if she planned on coming to his "preliminary." (Id., Audio File "Clip51Redacted, " Timestamp 1:48-2:10.) He then stated: "folks gonna be calling you, I don't know how this is going to play out . . . it's either one of two things . . . do not answer the phone or if you do have to just tell them folks you don't want to press charges on me." (Id., Timestamp 2:13-2:35.) He then stated: "you don't answer and don't come, then they gonna dismiss this shit . . . and we can just go from there." (Id., Timestamp 2:53-3:00.) In another call, defendant explained that he had been told by someone that "his gal told the prosecutor . . . quote that she didn't want to testify . . . when they gave her a subpoena, she called them and told them that." (Ex. 1, Timestamp 7:23-7:55.)

         One month before the trial, defendant again tried to convince Ms. Brown not to testify. He sent her a text message with a link to a website and told her to "[r]ead the part where it says witnesses can plead the fifth. Without accepting the subpoena, you are under no obligation to the courts." (Appellant App'x at 14-15.) He then told her that if she was "going to do it, [she would] have to stop answering the phone for them." (Id. at 16.) Mr. Brown responded: "It's says I can do that if I feel I'm going to say something to incriminate myself. . . . You reading it wrong, it want work for me cause I don't have anything to say that would incriminate me. Stop trying to make it seem like I filed a false report. That's what I see you trying to say in your defense against me and that's not right." (Id. at 16-18.) In response, defendant asked Ms. Brown to "sacrifice a little in exchange for [his] freedom." (Id. at 22.) Ms. Brown responded: "you say you willing to die for me hell you could have took life from me and my aunt." (Id. at 24.) Defendant did not deny the accusation.

         Viewing the evidence in the light most favorable to the government, there was sufficient evidence for the jury to convict defendant. Significantly, most of defendant's challenges to the evidence question Ms. Brown's credibility. This Court will not overturn a verdict by reassessing a witness' credibility. Grubbs, 506 F.3d at 438-39. There is sufficient evidence that defendant was in possession of the handgun in the early morning hours of Christmas Day, 2015. See id. at 439. ("We have defined substantial evidence as . . . 'such relevant evidence as a reasonable mind might accept to support a conclusion . . . affording a substantial basis of fact from which the fact in issue can be reasonably inferred.'" ...


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