United States v. Mark Morris , 623 F. App'x 820 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3633
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mark Joseph Morris
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
____________
Submitted: May 7, 2015
Filed: July 31, 2015
[Unpublished]
____________
Before GRUENDER, BENTON, and KELLY, Circuit Judges.
____________
PER CURIAM.
Mark Joseph Morris appeals after he pled guilty to three robbery offenses and
was found guilty by a jury of three firearm offenses. Having jurisdiction under 28
U.S.C. §1291, this court affirms.
Morris pled guilty to two counts of armed bank robbery, in violation of 18
U.S.C. § 2113(a) and (d), and one count of robbing a store by threats or violence, in
violation of 18 U.S.C. § 1951. A jury convicted him of three counts of possessing a
firearm in furtherance of the robberies, in violation of 18 U.S.C. § 924(c)(1)(A). The
district court1 sentenced him to 870 months in prison.
Morris argues that the evidence is insufficient to establish that he carried a
firearm—rather than a BB gun—during the robberies. This court reviews sufficiency
of the evidence de novo, “viewing the evidence in the light most favorable to the
verdict and drawing all reasonable inferences in favor of the verdict.” See United
States v. Robinson, 617 F.3d 984, 988 (8th Cir. 2010) (noting reversal is appropriate
“only if no reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt”).
For each firearm conviction, an eyewitness testified to seeing a real handgun.
See United States v. Stenger, 605 F.3d 492, 504 (8th Cir. 2010) (“[A] defendant’s
possession of a firearm may be established solely by eyewitness testimony.”). Officer
Shipley also testified, concluding from surveillance videos that the guns in the
robberies appeared similar to each other and to a real handgun. Morris attempted to
undermine the eyewitnesses by questioning their levels of certainty that the guns were
real firearms. But the jury believed the eyewitnesses, supported by Officer Shipley.
See id. (“The fact that the witnesses were not weapons experts or that they did not
inspect and verify the authenticity of the gun does not preclude conviction for use of
a firearm.”). See also United States v. Ireland, 62 F.3d 227, 230 (8th Cir. 1995) (“It
is the jury’s job to judge the credibility of witnesses . . . .”). The evidence is
sufficient to support a reasonable jury’s conclusion that Morris possessed a firearm
in connection with each robbery. See United States v. Bowers, 638 F.3d 616, 619 (8th
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
-2-
Cir. 2011) (“The possibility that a gun is fake does not prevent a reasonable jury from
determining the gun was real.”).
Following careful review of the record and the parties’ remaining arguments
on appeal, this court finds no error. See 8th Cir. R. 47B. First, Morris’s guilty pleas
to the robbery counts were voluntary and in compliance with Federal Rule of
Criminal Procedure 11. Second, there was no reversible error related to the trial
evidence and jury instructions, nor did the prosecution implicate Morris’s double
jeopardy rights. Third, there was no sentencing error. See United States v.
Abrahamson, 731 F.3d 751, 751-52 (8th Cir. 2013) (per curiam) (noting that
enhancements based on fact of prior conviction are exception to general rule that facts
increasing mandatory minimum penalties must be presented to jury), cert. denied, 134
S. Ct. 1565 (2014).
This court declines to consider on direct appeal the ineffective-assistance
claims Morris has raised. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir.
2003) (when claims of ineffective assistance of trial counsel are asserted on direct
appeal, appellate court ordinarily defers them to 28 U.S.C. § 2255 proceedings).
The judgment is affirmed. Morris’s pending motions are denied. Counsel’s
pending motion to withdraw is granted, subject to counsel informing Morris about
procedures for seeking rehearing or filing a petition for certiorari.
KELLY, Circuit Judge, concurring in part, dissenting in part.
I dissent from the court’s decision to affirm the jury’s verdict on two of the
three firearm charges under 18 U.S.C. § 924(c)(1)(A). I recognize the proper
deference given to a jury verdict. See United States v. Robinson, 617 F.3d 984, 988
(8th Cir. 2010). In this case, however, I respectfully disagree with the court’s
-3-
description of the evidence as sufficient to support the jury’s verdict on the first and
third of Morris’s firearm charges. I concur on the other issues presented on appeal.
Morris pleaded guilty to the robberies but faced three charges of possession of
a firearm in furtherance of the robberies—one charge per robbery. None of the
purported firearms were recovered, so they were not admitted into evidence. And the
government presented only one eyewitness in support of each firearm charge. The
first eyewitness, Holly Meyers, was working on the day of the robbery as a teller
when the first bank was robbed. She testified that Morris slid her a note and had
“just kind of showed a gun that was in his belt” by lifting up his shirt to reveal the
handle of the gun. She testified that the gun appeared to be real and not a BB gun.
She had shot a pistol before. Though she saw only the handle, she said the gun was
an “all black” handgun, not a revolver. On cross-examination, Meyers agreed that she
had seen the handle of the gun for only one second. She later failed to identify Morris
from a photo line-up, though she had seen his face for between 20 and 26 seconds.
She also conceded it was possible she was mistaken about the gun being real.
Vanessa Britain testified about the second robbery, which took place at the
Walgreens where she worked. Britain testified that a man had stuck a gun in her
chest when she opened the register during a transaction. The gun, she said, was a
handgun that had wear on the top “where the slide is and the shells eject out.” The
barrel of the gun left a bruise on her chest; based on that mark, she estimated that the
gun was maybe a .22 caliber handgun, “but no bigger than a 9-millimeter.” She
testified that she was familiar with revolvers, handguns, and other firearms and had
fired those weapons for at least 10 years. Britain testified that the gun looked real
when she first saw it and felt “very heavy and made of metal” when pressed against
her chest. Britain also misidentified Morris from a photo line-up, though she later
correctly identified him in state court. She felt, “to the best of [her] knowledge,” that
the gun was real.
-4-
Testifying about the third robbery, which took place at a different bank, was
Lauren Irving. She testified that during the robbery, a man had pulled a black
handgun from his waistline and placed it on the counter, pointed at her. The
encounter, she said, was “[v]ery brief,” but the gun looked real. Irving had not
personally handled a gun but said her good friend owns one, “so I have seen what a
real handgun looks like.” She said she would not have given the man money if the
gun was a toy or a BB gun. On cross-examination, Irving read from a summary of an
interview she had with police regarding the robbery; according to the summary,
Irving told the officer she “did not get a good look at the gun” but could tell it was
black. Irving also testified that she has not seen or handled BB guns fashioned to
resemble real guns. She agreed it was possible she was mistaken about the nature of
the gun. Irving also was unable to identify Morris in a photo line-up.
The jury also heard testimony from two clerks who worked at a Price Cutter
store that had been robbed in a similar fashion as the two banks and the Walgreens.
Neither of those clerks testified about the three robberies to which Morris pleaded
guilty. Officer Kevin Shipley, who had investigated all five robberies, testified that
the guns seen in the surveillance footage from each robbery looked real and similar
to each other because each was black and appeared to have the same “physical
shape.”
If all this evidence were taken together to establish possession of a firearm in
furtherance of a single robbery, it would likely be sufficient to sustain a conviction.
See United States v. Stenger, 605 F.3d 492, 504 (8th Cir. 2010) (concluding evidence
was sufficient to support § 924(c)(1)(A) conviction when four bank employees
testified about gun used during single robbery). But in this case, Morris was charged
in three separate robberies, not just one; and each of the robberies occurred at a
separate location on separate dates during a two-week span. The evidence to support
each of the three firearm convictions was the testimony of a single eyewitness and the
conclusion of Officer Shipley that the gun used in each had a similar shape—of a
-5-
handgun—and a similar color—black. Of those three eyewitnesses, only Vanessa
Britain arguably established that the gun used in the robbery was a real handgun. She
said she had a decade of experience handling and firing handguns and revolvers, she
felt the gun used in the robbery pressed against her chest, and she saw wear on the
gun that a toy or BB gun would not have. Her testimony, though uncorroborated, was
likely sufficient to sustain the firearms charge for that one robbery. See United States
v. Tillman, 765 F.3d 831, 834 (8th Cir. 2014) (noting that uncorroborated testimony
of a single witness can be sufficient to sustain conviction). I concur in the court’s
conclusion that this evidence, while not overwhelming, was sufficient to support a
conviction on this count.
But the same cannot be said of the other two convictions. Holly Meyers saw
only the handle of the gun and for only one second. Her only previous experience
with guns was when she had fired one pistol. And she later misidentified Morris in
a photo line-up, though she had seen him for at least 20 seconds. Lauren Irving had
only a brief encounter with Morris when he robbed the bank where she worked, and
she told police afterwards that she had not gotten a good look at the gun. Nor has she
seen BB guns fashioned to look like real guns. And like Meyers, Irving failed to
identify Morris in a photo line-up. Even adding in Officer Shipley’s conclusion
that—based on what he saw in the surveillance videos—the gun used in these two
robberies appeared to have the same color and shape, I cannot agree that a reasonable
jury could have concluded, beyond a reasonable doubt, that each gun met the
definition of “firearm” under 18 U.S.C. § 921(a)(3).
Nor were there other suggestions that the gun was real, such as clicking sounds
from a round being chambered or confessions by Morris about the gun’s authenticity,
see United States v. Dobbs, 449 F.3d 904, 911 (8th Cir. 2006), or descriptions of the
gun as “heavy” in sound or feel, see United States v. Kirvan, 997 F.2d 963, 966 (1st
Cir. 1993). While “[t]he possibility that a gun is fake does not prevent a reasonable
jury from determining the gun was real,” the government still has the burden of
-6-
proving this element beyond a reasonable doubt. United States v. Bowers, 638 F.3d
616, 619 (8th Cir. 2011) (concluding that government met burden of proof that gun
was real because, though guns used in robbery were never recovered, defendant
“confessed in writing to using firearms in the robberies”).
I do not question the sincerity of the eyewitnesses’ testimony. Nor do I doubt
the eyewitnesses were genuinely in fear or that they testified at trial to the best of
their memories and based on their perceptions under the circumstances. But these are
not the questions that must be answered when addressing a challenge to the
sufficiency of the evidence to sustain a conviction. The statute at issue requires that,
before a person may be found guilty of possessing a firearm in connection with a
crime of violence, the government must prove that the person, in fact, possessed a
firearm as that term is defined under § 921(a)(3). And proof of this element of the
offense must be established, like all other elements of the offense, beyond a
reasonable doubt. Viewing the evidence in a light most favorable to the government,
and drawing all reasonable inferences in favor of the verdict, I believe we are still left
with insufficient evidence to support the conclusion that whatever Morris possessed
during the first and third robberies met the federal definition of firearm. This is not
a case in which the government put on convincing evidence that the firearms were
real, and the defendant simply tried to plant a suggestion in the jury’s mind that they
were not. Instead, the government failed in the first instance to offer evidence
sufficient to prove this element of the offense beyond a reasonable doubt. Because
I believe Morris’s convictions on these two counts, and their corresponding 25-year
consecutive sentences, should be reversed, I respectfully dissent.
-7-