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.
Peter Oh, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Hartridge, UNITED STATES ATTORNEY'S OFFICE, Memphis,
Tennessee, for Appellee.
Before: MERRITT, WHITE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge
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
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.
Brown and defendant began a romantic relationship in
2011. 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.
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.
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.
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.
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.
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)).
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).
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.
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.
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. 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.
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,
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
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