United States v. Lesley Owens , 458 F. App'x 444 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0115n.06
No. 09-5751 FILED
Jan 31, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Western
LESLEY OWENS, ) District of Tennessee
)
Defendant-Appellant. )
Before: SILER and KETHLEDGE, Circuit Judges; ADAMS, District Judge.*
ADAMS, District Judge. Defendant-Appellant Lesley Owens appeals from his conviction
for being a felon in possession of a firearm. Because we find no error, we affirm.
I
On August 12, 2008, Owens was charged in a one-count indictment with being a felon in
possession of a firearm. The indictment arose from events that allegedly occurred on December 4,
2007. On that date, Udella King alleged that Owens forced her into a car through the use of a
firearm. King was then allowed to exit the car at the apartment of her cousin, Dolores DeLeon, with
the promise that money could be retrieved from the apartment. King entered the apartment, locked
the door, and then called 911. Owens then approached the apartment and attempted to gain entry.
King reported that Owens was screaming that he would shoot the door down if she did not exit the
*
The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 09-5751
United States v. Owens
apartment. A short while later, Owens left the area and officers arrived. With officers present,
Owens called King and indicated he was at a payphone a short distance away from the apartment.
Officers then went to that location and found Owens and Corey Marrow. While officers questioned
Owens, Marrow attempted to flee on foot. Eventually, Marrow was apprehended and a firearm was
found along the route that he had run from the officers. Based upon these events, Marrow and
Owens were independently charged with unlawful possession of the firearm.
Owens pled not guilty and the matter proceeded to a jury trial that commenced on January
12, 2009. On January 15, 2009, the trial concluded and the jury returned a guilty verdict on the sole
count. On June 19, 2009, Owens was sentenced to 235 months incarceration. Owens timely
appealed and now raises five arguments for this Court to review.
II
1. Other Acts Evidence
Owens first contends that the trial court committed plain error when it allowed testimony
regarding other acts evidence. To demonstrate plain error, a defendant must show: (1) a district court
error that was (2) plain, (3) affected the defendant’s substantial rights, and (4) seriously affected the
fairness, integrity or public reputation of the judicial proceedings. United States v. Schulte, 264 F.3d
656, 660 (6th Cir. 2001).
Owens contends that testimony was given on numerous prior bad acts without the trial court
properly engaging in a Fed. R. Evid. 404(b) analysis. The Government responds that all of the
evidence so admitted falls within the res gestae exception to the prohibition contained in 404(b). We
agree.
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To fall within the res gestae exception, evidence must “consis[t] of those other acts that are
inextricably intertwined with the charged offense or those acts, the telling of which is necessary to
complete the story of the charged offense.” United States v. Hardy, 228 F.3d 745, 748 (6th Cir.
2000). “Proper background evidence has a causal, temporal or spatial connection with the charged
offense.” Ibid.
Owens first asserts error related to when the Government asked King why she returned to
Marrow’s apartment with Owens. King responded:
He had a gun pointed to me and told me if I didn’t go, he would wup my – ... He
would wup my ass. And I had already been so scared of him by then, because he had
already wupped my ass too many times before that.
Despite Owens’ argument to the contrary, the trial court did not err in admitting this testimony. The
case against Owens revolved around the entire day of December 4, 2007. As such, King’s
explanation for why she was willing to be in Owens’ presence throughout that day was proper
background evidence to tell the complete story of the charged offense.
Owens next asserts error related to the Government’s questioning of Beulah Hurd. During
that examination, the Government inartfully asked whether Owens had been Hurd’s pimp in the past.
Hurd denied any such relationship with Owens. Thereafter, at sidebar, the trial court indicated that
such an inquiry could lead to a host of problems with other acts evidence. No further questions on
the topic were identified by Owens on appeal as problematic. Given Hurd’s answer in the negative
and a complete lack of any objectionable follow-up questions, the Court finds no error. It is unclear
how Hurd’s denial of such a relationship could conceivably have prejudiced Owens. As such, he has
failed to demonstrate error.
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This Court notes that Owens’ reply brief raises numerous other instances of alleged other acts
that were improperly introduced during the trial. These acts were not argued in Owens’ opening
brief. Arguments raised for the first time in a reply brief are waived. See Sanborn v. Parker, 629
F.3d 554, 579 (6th Cir. 2010). Accordingly, this Court need not address those other acts identified
and argued for the first time in the reply brief.
We do note, however, that is clear that even those acts that were raised for the first time in
the reply brief fall within the res gestae exception. They include Owens’ alleged assault on King
later the same day in which Owens verbally indicated that the assault occurred due to King’s act
resulting in Owens having his gun confiscated. Accordingly, Owens has failed to demonstrate the
plain error necessary to warrant reversal.
2. Ineffective Assistance of Counsel
Owens next argues that he received ineffective assistance from his trial counsel. We find no
merit in this argument.
This Court has frequently explained the standard applicable for reviewing claims of
ineffective assistance of counsel. In addressing these claims of ineffective assistance of counsel, we
follow the two-part test laid out by Strickland v. Washington, 466 U.S. 668 (1984). As required by
that analytical framework:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
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Id. at 687.
In Groseclose v. Bell, 130 F.3d 1161, 1167 (6th Cir. 1997), discussing the first prong of the
Strickland analysis, this Court held that:
The [Supreme] Court cautioned that in undertaking an ineffective-assistance review,
“[j]udicial scrutiny of counsel’s performance must be highly deferential,” and must
avoid the “second-guess[ing of] counsel’s assistance ..., [as] it is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at
689. In order to avoid “the distorting effects of hindsight,” a reviewing “court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that ... the challenged action ‘might be considered sound trial strategy.’”
Id. (citation omitted). Furthermore, in evaluating the prejudice prong, “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693. Indeed, “[v]irtually every act or omission of counsel would meet that
test, and not every error that conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding.” Id. (citation omitted). Rather, an appellant “must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.
Owens’ initial arguments regarding ineffective assistance of counsel focus upon the other acts
evidence described above. As we found no error in the admission of that evidence, it follows that
counsel was not deficient when he declined to object to its admission.
Additionally, Owens claims his counsel was deficient when he failed to object to the
testimony of Deborah Johnson and Jamison Price. With respect to Johnson, Owens claims that his
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counsel should have objected to any testimony about his possessing a firearm on any day other than
the day contained in the indictment. With respect to Price, Owens claims his counsel should have
objected to his testimony about King’s attending church and having a prior unhealthy relationship.
Upon review, no objection to either witness was warranted.
Owens’ argument regarding Johnson focuses upon a misreading of her testimony. There is
no question that Johnson was unclear regarding the day that she saw Owens with a firearm.
However, through re-direct examination, Johnson was able to conclude that December 4, 2007 was
in fact the day she saw Owens with the firearm. Accordingly, any objection to her testimony would
have been futile.
Price gave very limited testimony. He testified that he met King at a mutual church,
befriended her, and purchased her a bus ticket to leave town after the December 4, 2007 incidents
with Owens. Price also indicated that he knew an individual named EJ that King had moved to
Memphis with and that King had dated. Price described their relationship as unhealthy. Owens
contends that these statements were irrelevant to the case against him and Price’s testimony was
provided solely to paint King as a sympathetic, church-going victim. Price’s testimony, however,
placed his relationship with King in context. It explained to the jury how he knew King and why he
was willing to provide her assistance to leave town. Furthermore, during his testimony, Price
described King’s physical appearance after her alleged assault by Owens, adding to King’s
credibility. Accordingly, Owens has not demonstrated that his counsel was deficient for failing to
object to Price’s testimony.
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In addition to failing to demonstrate the deficiency of his trial counsel, Owens has also failed
to demonstrate that he was prejudiced by any alleged deficiency. The testimony highlighted by
Owens was tangential in most aspects to the core testimony that supported his conviction. As both
King and Johnson placed a firearm in Owens’ possession on December 4, 2007, he has failed to
demonstrate that the admission of the above evidence influenced the outcome of his trial in any
manner. As such, Owens’ second argument lacks merit.
3. Constructive Amendment or Variance
Owens next contends that he was denied due process when the indictment was constructively
amended. There is no merit in this contention.
This Circuit has previously described both amendments and variances:
An amendment of the indictment occurs when the charging terms of the indictment
are altered, either literally or in effect, by prosecutor or court after the grand jury has
last passed upon them. A variance occurs when the charging terms of an indictment
are left unaltered, but the evidence offered at trial proves facts materially different
from those alleged in the indictment.
United States v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989) (quoting Gaither v. United States, 413
F.2d 1061, 1071 (D.C. Cir. 1969)).
Again, contrary to Owens’ assertions, there was nothing approaching an amendment or a
variance from his indictment. Both King and Johnson testified that they witnessed Owens in
possession of a firearm on December 4, 2007. Admittedly, neither witness was stellar in recalling
the precise events of December 4, 2007. However, by the conclusion of the testimony of each
witness, both witnesses were certain of the date that Owens possessed the weapon. Moreover, the
jury was instructed that the Government had to prove possession on or about December 4, 2007. No
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other dates were ever suggested to the jury, nor was any argument about another date offered.
Accordingly, no variance or amendment occurred. This argument lacks merit.
4. Sufficiency
Owens asserts that there was insufficient evidence to support his conviction. We disagree.
When considering a sufficiency-of-the-evidence challenge to a conviction under 18 U.S.C.
§ 922(g), this Court does not “weigh the evidence presented, consider the credibility of witnesses,
or substitute [its] judgment for that of the jury.” United States v. Montague, 438 Fed. App’x 478, 480
(6th Cir. 2011) (quoting United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 588–89 (6th Cir.
1999)). Rather, “the question before us is whether, ‘after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Martinez, 588 F.3d 301, 314 (6th Cir. 2009)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “In making this determination, we reverse
a judgment for insufficiency of evidence only if the judgment is not supported by substantial and
competent evidence upon the record as a whole, whether or not the evidence is direct or wholly
circumstantial.” Id. (alterations and internal quotation marks omitted).
In order to secure a conviction under 18 U.S.C. § 922(g), the Government must prove three
elements: (1) that the defendant had a previous felony conviction; (2) that the defendant possessed
the firearm; and (3) that the firearm traveled in or affected interstate commerce. United States v.
Gardner, 488 F.3d 700, 713 (6th Cir. 2007). “Actual or constructive possession is sufficient to give
rise to criminal liability under § 922(g),” United States v. Schreane, 331 F.3d 548, 560 (6th Cir.
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2003), and both may be proven by circumstantial evidence, United States v. Davis, 577 F.3d 660,
671 (6th Cir. 2009).
In the instant matter, both King and Johnson testified they witnessed Owens in possession
of the firearm on December 4, 2007. Owens’ sole argument on appeal is that both witnesses lacked
credibility. However, as noted above, this Court does not weigh the evidence presented when
conducting a sufficiency analysis. Instead, we look at the evidence in a light most favorable to the
Government. In a light most favorable to the Government, the jury could believe these two
eyewitnesses and find that Owens was in actual possession of the firearm. As Owens does not
dispute that the remaining elements of the crime were proven, his argument must fail.
5. Jury Instruction
In his final argument, Owens contends that the trial court committed plain error when it failed
to give an instruction regarding prior bad acts and further instructions regarding the date of the
offense. Neither contention has merit.
As detailed above, no prior bad acts were introduced by the Government. Rather, the
testimony that was introduced was properly introduced under the res gestae exception to Fed. R.
Evid. 404(b). As such, no instruction on prior bad acts was necessary.
Finally, Owens’ argument that further instructions were necessary regarding the date of the
offense likewise lacks merit. In raising this argument, Owens relies upon his above argument that
a variance occurred. As detailed above, the evidence introduced by the Government was entirely
consistent – Owens possessed the firearm on December 4, 2007. Accordingly, the pattern instruction
explaining the meaning of “on or about” was sufficient to properly instruct the jury regarding the
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date of the offense. Owens has demonstrated no error in the jury instructions, let alone plain error
that would warrant reversal.
III
For the reasons described above, we AFFIRM Owens’ conviction.
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