United States v. Howard

977 F.3d 671

UNITED STATES of America, Plaintiff - Appellee

v.Lonnie Alonzo HOWARD, also known as Lonnie M. Howard, Defendant - Appellant

No. 19-2473

United States Court of Appeals, Eighth Circuit.

Submitted: June 19, 2020

Filed: October 6, 2020

Rehearing and Rehearing En Banc Denied December 30, 2020^*

David D. Hagler, Assistant U.S. Attorney, Jonathan O'Konek, Assistant U.S. Attorney, U.S. Attorney's Office, District of North Dakota, Bismarck, ND, for Plaintiff-Appellee.

Lonnie Alonzo Howard, Coleman, FL, Pro Se.

Mark A. Meyer, Meyer Law Firm, Wahpeton, ND, for Defendant-Appellant.

Before GRUENDER, WOLLMAN, and KOBES, Circuit Judges.

WOLLMAN, Circuit Judge.

Lonnie Alonzo Howard was convicted of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). The district court¹ applied the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and sentenced Howard to 210 months’ imprisonment. Howard argues that the evidence was insufficient to support his conviction and that the district court erred in admitting certain evidence. He also contends that two of his prior state convictions do not constitute qualifying offenses under the ACCA. We affirm.

I. Background

Howard was on parole through the state of North Dakota when on November 19, 2015, law enforcement officers executed a search warrant at the Bismarck, North Dakota, apartment he shared with Marybeth Fix. Officers encountered Anthony White in the kitchen area, Samantha Glass in the hallway, and Howard in the main bedroom. A .45 caliber Hi-Point pistol, a loaded magazine, and various ammunition were found in the main bedroom. Howard was charged in federal court in January 2017 with one count of being a felon in possession of a firearm and three counts of being a felon in possession of ammunition.

Howard was released to a halfway house pending trial. He absconded and was charged with escape in violation of 18 U.S.C. § 751(a). A deputy sheriff attempted to apprehend Howard in April 2018, after stopping him for a traffic infraction. The deputy's dash cam recorded the stop, during which Howard resisted arrest and fled from the scene. The district court granted the government's motion to join the escape case with the firearm and ammunition case. See Fed. R. Crim. P. 13. Howard thereafter pleaded guilty to escape.

At trial on the remaining charges, the government called several witnesses whose testimony supported the contention that Howard knowingly possessed a firearm and ammunition. Over Howard's objections, the district court admitted evidence of a pawn shop ticket indicating that Howard had pawned a firearm in July 2015 and the dash cam video of the April 2018 traffic stop. The district court issued limiting instructions to the jury about the disputed evidence. The jury found Howard guilty of the one firearm and three ammunition counts, which the district court later merged into one count of conviction. The district court denied Howard's motion for judgment of acquittal.

At sentencing, the district court determined that Howard had three qualifying offenses and therefore was subject to an enhanced sentence under the ACCA. The court sentenced Howard to 30 months’ imprisonment on the escape count, to run concurrently with the 210-month sentence on the firearm and ammunition count.

II. Discussion

A. Sufficiency of the Evidence

Howard argues that the evidence was insufficient to support his conviction and that the district court thus should have granted his motion for judgment of acquittal. We review de novo the denial of a motion for judgment of acquittal, viewing the evidence and all reasonable inferences in the light most favorable to the jury's verdict. United States v. McDonald, 826 F.3d 1066, 1072 (8th Cir. 2016) (per curiam). We reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.

Howard contends that the government failed to prove that he knowingly possessed a firearm and ammunition. Knowing possession may be proved by a showing of actual or constructive possession. Id. "[C]onstructive possession requires both knowledge that the contraband is present and dominion over the premises where the contraband is located." United States v. Ways, 832 F.3d 887, 897 (8th Cir. 2016). "Dominion over the premises where the contraband is located may give rise to a strong inference of knowledge in some contexts, but when there is joint occupancy of a residence, dominion over the premises by itself is insufficient to establish constructive possession." United States v. Patton, 899 F.3d 560, 563 (8th Cir. 2018) (internal citations and quotation marks omitted). "In joint occupancy cases, there must be some additional nexus linking the defendant to the contraband." Id. (quoting United States v. Wright, 739 F.3d 1160, 1168 (8th Cir. 2014) ).

Although the apartment here was jointly occupied, there was ample evidence that Howard exercised dominion over the main bedroom. Fix testified that Howard had been living at the apartment for about a year and that Glass had been staying there for about a month. Fix explained that Howard slept in the main bedroom and that the only individuals with access to the main bedroom were Fix, Howard, their children, and Glass. Glass testified that she sometimes slept in the main bedroom with Howard. A parole officer who had visited the apartment when supervising Howard confirmed that Howard occupied the main bedroom. There was no evidence that Anthony White had at any time entered the main bedroom.

The evidence presented also was sufficient to show a nexus between Howard and the firearm and ammunition. According to their testimony, neither Fix nor Glass had seen the pistol or the ammunition that were found during the search. Fix had spent the night before the search in her children's room and had left with the children before officers arrived. Glass had spent that night in the main bedroom. Soon after she awoke, Howard told her that the police had arrived, as he moved back and forth near the window. Glass testified that a basket of children's toys had been moved from its usual spot to the floor near the foot of the bed and that she had not previously noticed a backpack in the main bedroom. The basket held the pistol and the round-filled magazine. Officers found a loose bullet and a safe containing ammunition within the backpack. Officers also found two rounds of ammunition in a nightstand drawer that held mail addressed to Howard, along with his prescription medication. Furthermore, the government presented evidence that Howard had asked Fix to fabricate text messages between her and an ex-boyfriend saying that the ex-boyfriend had left his backpack, gun, and clothes at the apartment. See United States v. Cross, 888 F.3d 985, 991 (8th Cir. 2018) (evidence of jail call between Cross and his girlfriend, in which he tried to convince her to claim ownership of the gun, "supported Cross's possession"). In light of the evidence and the inferences that fairly could be drawn therefrom, a reasonable jury could reject Howard's mere presence defense and find that he knowingly possessed a firearm and ammunition.²

B. Evidentiary Challenges

Howard next argues that the district court abused its discretion in admitting certain evidence. See United States v. Buckner, 868 F.3d 684, 687 (8th Cir. 2017) (standard of review). He claims that the July 20, 2015, ticket indicating that he had pawned a firearm that day constituted impermissible character evidence. The government was required to prove that Howard knowingly possessed a firearm and ammunition, however, and the evidence of Howard's four-month earlier firearm transaction tended to show that he knowingly and intentionally possessed a firearm and ammunition in November 2015. See Fed. R. Evid. 404(b) (evidence of a crime, wrong, or other act "may be admissible for ... proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident"); Buckner, 868 F.3d at 689 ("We have expressly approved the use of Rule 404(b) evidence of prior possession of a firearm to show knowledge and intent to possess at a later occasion in a felon in possession prosecution."). Moreover, the district court issued a limiting instruction, which diminished the prejudicial effect of the evidence. Id. at 690 ("[T]he presence of a limiting instruction diminishes the danger of any unfair prejudice arising from the admission of other acts." (alteration in original) (quoting United States v. Strong, 415 F.3d 902, 906 (8th Cir. 2005) )). We thus conclude that the district court did not abuse its discretion in determining that the probative value of the pawn ticket evidence outweighed any prejudice. See Fed. R. Evid. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice ....").

Howard also challenges the district court's decision to admit the dash cam video of the traffic stop and the deputy's attempt to take Howard into custody. The video showed Howard giving a false name and date of birth to the deputy, who thereafter asked Howard to exit the vehicle. As the deputy was attempting to place him in handcuffs, Howard wrested himself free from the deputy's grasp, attempted to reenter the vehicle, again broke free from the deputy, ran onto the highway, returned to his vehicle, and drove into another vehicle before speeding through a ditch, over the median, across lanes of traffic, and up an exit ramp. "[E]vidence of flight ‘is admissible and has probative value as circumstantial evidence of consciousness of guilt.’ " United States v. Thompson, 690 F.3d 977, 991 (8th Cir. 2012) (quoting United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir. 1991) ). Howard concedes that the evidence is "arguably relevant," but argues that the video should have been excluded as unfairly prejudicial. Appellant's Br. 34.

The district court did not...