United States v. Horton , 192 F. App'x 314 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 2, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 04-61048
Summary Calendar
____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CAREL EDWARD HORTON, also known as Carl Edward Horton
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
No. 3:04-CR-64
_________________________________________________________________
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-appellant Carel Edward Horton appeals from his
conviction and sentence for possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). Horton challenges the sufficiency of the evidence to
establish his constructive possession of the assault rifle found
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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in the backseat of his vehicle during a police investigation of a
related shooting incident. For the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 2004, Carel Edward Horton (“Horton”) left work
around 5:00 p.m. and went to his grandmother’s house, where he
learned that his cousin, Devon Davis (“D. Davis”), had recently
been shot on Capitol Street in Jackson, Mississippi. According
to the government, Horton then met with D. Davis’s brother
Maurice Davis (“M. Davis”) at Horton’s mother’s house and planned
to drive to a house located on Inge Street, where D. Davis’s
assailant allegedly resided. With Horton driving his 1991
burgundy Cadillac, the two men then apparently went to the
location on Inge Street and parked in front of the house of
Patricia Nowlin (“Nowlin”). Nowlin testified that she witnessed
three or four unidentified men emerge from the Cadillac and
approach a nearby house. After a brief altercation, one of the
men shot an individual at the house named Harry McNeil in the
leg.1
When Jackson Police Sergeant Tamara Miliken (“Miliken”)
arrived at the scene to investigate the shooting of D. Davis, she
heard shots being fired from Inge Street and called for backup.
Miliken also noticed a burgundy Cadillac parked near the location
1
Fred Mallard and Derrick Young--two of the men who
allegedly accompanied M. Davis and Horton to the Inge Street
location in separate cars--were also apparently shot in the
ensuing gunfight, although neither man identified who shot him.
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of the firing and observed people running away from Inge Street.
Shortly thereafter, Miliken was joined at the scene by Jackson
Police Detective Kent Daniel and Jackson Police Officer Cordell
Frazier (“Frazier”). By the time Frazier arrived, nobody was
around the Cadillac, but the front and rear passenger doors were
ajar. Frazier saw an assault rifle with a loaded clip of
ammunition lying in plain view in the backseat of the Cadillac.2
The car was not running, and there was no key in the ignition,
which did not appear to have been tampered with.
While at the Inge Street location, Jackson Police Officer
Charlando Thompson (“Thompson”), who had relieved Frazier at the
scene, received a dispatch call to investigate the theft of a
burgundy Cadillac. Thompson responded to the call and met with
Horton at a nearby location on Bratton Street. At first, Horton
claimed that he had left his car running with the key in the
ignition while at a grocery store and that it was stolen.
Because Horton’s car was found at the scene of a crime, Thompson
apprehended Horton and found a car key that fit the Cadillac’s
ignition in Horton’s pocket during a routine patdown.3 At the
2
The rifle and the loaded clip of ammunition were
submitted into evidence. A federal agent later testified that
the weapon was in operating condition. A crime scene
investigator also testified that the lack of discernable
fingerprints on the rifle was probably due to raised surfaces and
smudges on the weapon, which he stated was a common problem in
such investigations.
3
After Horton admitted that the car belonged to him, the
police discovered Horton’s wallet, driver’s license, and a
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police station, a gunshot residue test was performed on Horton to
determine whether he had recently fired a weapon, which came back
negative. Horton again stated that his car was stolen when he
went into the grocery store to buy beer and that a defect in the
ignition switch allowed the car to be started without a key.4 He
then changed his story and claimed that M. Davis had taken his
car while he was in the grocery store. Finally, after the
detectives told Horton that they believed he was lying, Horton
signed a written statement, admitting that his car had not been
stolen, that he and M. Davis had driven to Inge Street, and that
M. Davis had shot a man in the leg.5
Based on the rifle found in the backseat of his car and his
previous conviction for murder on November 14, 1988, Horton was
indicted on one count of knowing possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). Although he unsuccessfully moved for a judgment of
Mississippi Department of Corrections document bearing his name
in the car after a complete search of the vehicle.
4
The man who sold the Cadillac to Horton testified at
trial that the anti-theft features of the vehicle would make it
impossible to start the car without the ignition key. However,
Horton’s wife, Velissha Horton, testified that the key could be
removed from the ignition while the car was running and that the
car could be driven in this way.
5
During his case-in-chief, Horton conceded that he had
signed the statement but insisted that he did so only because the
detectives told him that he would be let go if he cooperated.
Horton does not contend on appeal, however, that the statement
was involuntary or illegally coerced in any way.
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acquittal under Federal Rule of Criminal Procedure 29(a) after
the government presented its case-in-chief, Horton did not renew
his Rule 29(a) motion at the conclusion of all the evidence. On
October 25, 2004, the jury convicted Horton. The district court
subsequently sentenced Horton to sixty-three months in prison, a
three-year term of supervised release, and a $100 special
assessment. Horton timely appealed his conviction and sentence.
II. DISCUSSION
On appeal, Horton challenges only the sufficiency of the
evidence with respect to establishing his constructive possession
of the rifle found in the backseat of his Cadillac.6 More
specifically, Horton argues that the government’s circumstantial
evidence connecting him to the weapon was too weak to overcome
the lack of direct witness testimony placing Horton in the car at
any time relevant to the shooting incident. Contrary to the
government’s presentation of the evidence, Horton maintains that
the evidence gives at least equal support to a theory of
innocence as to a theory of guilt because it is highly unlikely
that Horton would have left the rifle in the backseat of his car
on the way to an armed confrontation. Accordingly, Horton
contends that a reasonable jury would have entertained reasonable
6
In order to establish a violation of 18 U.S.C.
§ 922(g)(1), the government must prove three elements beyond a
reasonable doubt: (1) that the defendant previously had been
convicted of a felony; (2) that he possessed a firearm; and (3)
that the firearm traveled in or affected interstate commerce.
United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).
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doubts about his guilt, and reversal is required.
The government responds that the evidence adduced at trial
was sufficient to sustain the jury’s verdict. First, Horton
himself signed a written statement that placed him in the car at
the time of the shooting. Moreover, the jury was presented with
circumstantial evidence and testimony that could give rise to a
reasonable inference of constructive possession of the rifle
found in the backseat of his Cadillac--that is, Horton was in a
position to exercise dominion and control over the rifle. See
United States v. Patterson, 431 F.3d 832, 837 (5th Cir. 2005)
(“Generally, a person has constructive possession over contraband
if he knowingly has control over the contraband itself or over
the premises in which the contraband is located.”). Therefore,
the government urges this court to affirm the conviction and
sentence.
As a general matter, we review challenges to the sufficiency
of the evidence in the light most favorable to the government,
drawing all reasonable inferences and credibility choices in
favor of the jury’s verdict. See United States v. Cain, 440 F.3d
672, 675 (5th Cir. 2006); United States v. Guidry, 406 F.3d 314,
318 (5th Cir. 2005) (“It is not our role . . . to second-guess
the determinations of the jury as to the credibility of the
evidence.”). When, however, as here, the defendant fails to
renew his motion for a judgment of acquittal at the close of all
the evidence, we review only for a manifest miscarriage of
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justice--that is, “the record must be devoid of evidence of guilt
or the evidence must be so tenuous that a conviction is
shocking.” United States v. Avants, 367 F.3d 433, 449 (5th Cir.
2004); see also United States v. Green, 293 F.3d 886, 895 (5th
Cir. 2002) (noting that “sufficiency of the evidence claims are
reviewed under a stricter than usual standard, because none of
the defendants renewed their motions for judgment of acquittal at
the close of all evidence”).
Our review of the record reveals ample evidence and witness
testimony from which the jury could draw a reasonable inference
of guilt to sustain Horton’s conviction. Although Horton now
denies admitting that he drove M. Davis to the location on Inge
Street and argues that someone stole his car and left the rifle
in the backseat, the government’s witnesses testified that the
shooting incident took place just moments after Horton parked his
car on Inge Street and that nobody returned to the Cadillac after
the gunfire began until the police arrived at the scene and found
the rifle in the backseat. This evidence provided a sufficient
basis to support the jury’s finding that Horton at least
constructively possessed the rifle found in his car. See
Patterson, 431 F.3d at 837 (noting that the jury was entitled to
conclude that the defendant constructively possessed a firearm
based on evidence that “he had knowledge of and access to the
firearm”). Moreover, the jury was entitled to disbelieve Horton
in light of the inconsistencies in his own version of the story
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during the investigation. See United States v. Rodriguez, 278
F.3d 486, 490 (5th Cir. 2002) (noting that “the jury is free to
choose among all reasonable constructions of the evidence and
this Court will accept all credibility choices that tend to
support the jury’s verdict”). Because there is unquestionably
evidence of guilt in the record to sustain the conviction, we
conclude that there has been no manifest miscarriage of justice
in this case nor any other persuasive grounds for reversal.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Horton’s conviction and
sentence.
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