United States v. Smith

MCFADDEN

FIFTH DIVISION

, C. J.,

RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed.

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

MCFADDEN, Chief Judge.

After a jury trial, Darius Rashun Campbell was convicted of first-degree home invasion (OCGA § 16-7-5), aggravated assault (OCGA § 16-5-21), and possession of a firearm by a convicted felon (OCGA § 16-11-131). On appeal, he challenges the sufficiency of the evidence, but the evidence authorized the jury to find him guilty of the offenses. He argues that the trial court erred in failing, sua sponte, to strike a juror for cause, but he waived that claim of error. He argues that the trial court erred in admitting other-acts evidence under OCGA § 24-4-404 (b), but the trial court did not abuse his discretion in this ruling. He argues that the trial court erred in failing to instruct the jury on lesser-included offenses as to three of the offenses with which he was charged, but the evidence did not authorize those charges. He argues that the trial court improperly commented on the evidence, but the comment did not violate OCGA § 17-8-57. Finally, he argues that his trial counsel rendered ineffective assistance in several respects, but he has not shown both the deficient performance and prejudice required for this claim. So we affirm.

1. Sufficiency of the evidence.

"On appeal from a criminal conviction, the appellate court views the evidence in the light most favorable to the verdict, and [the] appellant no longer enjoys the presumption of innocence." Walker v. State, 348 Ga. App. 273 (1) (821 SE2d 567) (2018) (citation and punctuation omitted). "We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)." Rowland v. State, 349 Ga. App. 650 (1) (825 SE2d 231) (2019) (citation omitted).

So viewed, the evidence shows that on the morning of November 30, 2017, Campbell, a convicted felon, banged on the door of an occupied residence and then forced his way inside while carrying an AR-15 rifle, which he began to raise in the direction of the three persons inside. One of those persons then shot Campbell several times. Campbell fled but was apprehended nearby.

Campbell challenges the sufficiency of the evidence supporting his convictions for first-degree home invasion, aggravated assault against the three persons inside the residence, and possession of a firearm by a convicted felon, but the only argument he makes in support of this challenge is that the evidence of his guilt was contradictory or inconclusive. This argument does not address sufficiency. It goes to the strength and credibility of the evidence, which were matters for the jury to resolve. Rowland, 349 Ga. App. 350 (1). The evidence authorized the jury to find Campbell guilty of the crimes for which he was convicted.

2. Trial court's failure to strike a juror for cause.

Campbell argues that the trial court erred for failing to strike a juror for cause. But, after the juror was questioned in voir dire, Campbell's trial counsel did not challenge him for cause, so this claim of error is not preserved for appellate review. See Sewell v. State, 302 Ga. App. 151, 154 (2) (690 SE2d 634) (2010). This claim of error is not subject to plain error review. See generally Miller v. State, 309 Ga. 549, 552 (2) (847 SE2d 344) (2020) (describing the limited types of claims that are subject to plain error review).

3. Other-acts evidence.

Campbell argues that the trial court erred in permitting the introduction of other-acts evidence under OCGA § 24-4-404 (b) ("Rule 404 (b)"). As our Supreme Court has explained the applicable standard:

[i]n order to be admissible under Rule 404 (b), evidence of an accused's other acts must be (1) relevant to some issue other than character; (2) admissible under OCGA § 24-4-403 ("Rule 403"), in that its probative value is not substantially outweighed by the danger of unfair prejudice; and (3) sufficient to permit the jury to conclude by a preponderance of the evidence that the accused actually committed the other act. A trial court's decision to admit evidence under Rule 404 (b) will be disturbed only if it constitutes a clear abuse of discretion.

Harrison v. State, __ Ga. __, __ (3) (Case No. S20A1104, decided March 1, 2021) (citations omitted). We find no abuse of discretion here.

The other-acts evidence at issue concerned an incident that occurred on November 13, 2017, two weeks before the events at issue in this case. The other-acts witness testified that Campbell came to a hotel room that was serving as the witness's home, knocked on her partially open door, then pushed his way partially into the room and began yelling at one of the other occupants, demanding money that Campbell claimed that person owed him. Campbell was irate and made the witness uncomfortable. At one point, Campbell stepped outside of the room and the other-acts witness attempted to close the door; Campbell then urt to develop defenses that leave much room for benign transitory possession." In fact, Congress drafted § 922 to "enlarge[] and extend[]" a previous act that was already "designed to prevent [certain criminals] from being able to purchase or in any way come in contact with firearms." Barrett v. United States, 423 U.S. 212, 220 (1976) (cleaned up). Thus, the brevity of physical contact doesn't negate possession.

United States v. Teemer, 394 F.3d 59, 64 (1st Cir. 2005) (cleaned up). Contrary to the majority's suggestion, Teemer, id., does not support the majority's rule. In fact, Teemer had no occasion to rule on that issue, because the jury "instruction did not say that merely to touch the AK-47 constituted a crime." Id. at 65 (emphasis added).

Second, "the government successfully proved actual possession" where "the defendant's . . . fingerprints were found on the firearm." Although the majority gleans from that statement the rule that the defendant must be "tied to the firearm with forensic evidence," that's wrong. Forensic evidence harbors no talismanic significance. Fingerprints would prove only that the defendant touched the gun. Thus, the majority fails to explain why a fingerprint—which proves that a defendant touched a gun—can establish possession, but a defendant's admission of the same fact will not.

United States v. Hagman, 740 F.3d 1044, 1049 (5th Cir. 2014); see also United States v. Tyler, 474 F.2d 1079, 1081 (5th Cir. 1973) (per curiam) (concluding, in the context of a different statute, that "[t]he jury was free to . . . draw an inference of actual possession from the presence of Tyler's fingerprint on the check"); De Leon, 170 F.3d at 497 ("The thumbprint on the box of ammunition would also lead a jury to reasonably infer that De Leon . . . possessed control over [the box].").

See De Leon, 170 F.3d at 495, 498 (suggesting that a "partial fingerprint" could show that a defendant "merely touched the box").

The majority suggests that we haven't "resolve[d] whether fingerprints are sufficient on their own to sustain a possession conviction." That ignores our precedents saying that a fingerprint is sufficient to establish actual possession. See cases cited supra note 12.

B.

After it finishes tilting at precedential windmills, the majority begins cherry-picking dictionary definitions. Specifically, it selects a 1934 dictionary. The rationale for that selection is mysterious. In any event, the majority's main definition suffers from the same malady as the majority's precedent: It defines constructive—not actual—possession.

After all, to the extent that the majority seeks to divine the original public meaning of 18 U.S.C. § 922(g), that statute wasn't law until 1968 and didn't criminalize possession until 1986. See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213, 1220 (adding § 922(g)); Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449, 452 (1986) (amending § 922(g) to criminalize possession).
Thus, if the majority seeks to divine a relevant interpretive community to ascertain the original public meaning of "possess," at a minimum, it'd need to look to a definition from around 1986. See Frank H. Easterbrook, Abstraction and Authority, 59 U. CHI. L. REV. 349, 359-60 (1992) (noting that "the meaning of a text lies in its interpretation by an interpretive community"); id. at 364 (noting that "the traditional view . . . looks to the interpretive community at the time of enactment"). And picking the right dictionary definition is important, because "an uncritical approach to dictionaries can mislead judges." ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 415 (2012).

For instance, the majority tells us that "possess" means "to have and hold [contraband] as property." (Cleaned up). And Webster synonymizes its "to have and hold" language with the word "own." But constructive— not actual—possession connotes ownership. Similarly, the majority's "master of" definition mirrors constructive possession's modern definition, namely "dominion . . . over the item." In short, the majority becomes ensnared in a common pitfall of misguided dictionary usage: It fails to recognize that "common words typically have more than one meaning." SCALIA & GARNER, supra, at 418.

Possess, WEBSTER'S NEW INTERNATIONAL DICTIONARY 1770 (3d ed. 1961); see also Possess, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/possess (last visited Apr. 22, 2021) (providing one definition of "possess" as "to have and hold as property : OWN").

See Meza, 701 F.3d at 419 ("'Constructive possession' may be found if the defendant had . . . ownership . . . over the item . . . .").

Meza, 701 F.3d at 419; see also Possession, BLACK'S LAW DICTIONARY (11th ed. 2019) (defining "construction possession" as "dominion over a property").

In reality, dictionary definitions show that a mere touch constitutes actual possession. Actual possession refers to "[p]hysical occupancy or control over property." A better dictionary definition, therefore, is to "seize or gain control of." And if "seize" is the relevant concept, "a mere touch can be enough for a seizure." Torres v. Madrid, 141 S. Ct. 989, 998 (2021).

Possession, BLACK'S LAW DICTIONARY (11th ed. 2019); see also Jones, 484 F.3d at 787 (defining "actual possession" as "direct physical control over a thing").

Possess, WEBSTER'S NEW INTERNATIONAL DICTIONARY 1770 (3d ed. 1961); see also Possess, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/possess (last visited April 22, 2021) (defining "possess" as "to seize and take control of").

In sum, by relying on inapposite precedent and definitions about constructive possession, the majority effectively layers the requirements of constructive possession over the requirements of actual possession. Now the government must show not only that a felon touched a firearm, but that he did so with sufficient vigor to render him "'master' over" it.

C.

The majority's result is well-intentioned. Situations might arise in which a felon's physical contact with a gun is so minimal and otherwise justified that it'd be absurd to convict him of possession. But we already make exceptions to § 922(g) for such situations. And we didn't have to stretch our definition of "actual possession" to get there. In general, a felon is not guilty of possessing a firearm if that possession is (1) brief and (2) justified.

See United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982) (holding "that where a convicted felon, reacting out of a reasonable fear for the life or safety of himself, in the actual, physical course of a conflict that he did not provoke, takes temporary possession of a firearm for the purpose or in the course of defending himself, he is not guilty of violating" the predecessor to § 922(g)); United States v. Penn, 969 F.3d 450, 456 (5th Cir. 2020) ("A defendant must act promptly to rid himself of the firearm once the circumstances giving rise to the justification subside."), cert. denied, No. 20-6791, 2021 WL 1520864 (U.S. Apr. 19, 2021); United States v. Fisher, 777 F. App'x 749, 750-51 (5th Cir. 2019) (per curiam) ("The record evidence supports the finding that Fisher's possession of a firearm was not wholly temporary and in the course of defending himself."), cert. denied, 140 S. Ct. 978 (2020); United States v. Lee, 208 F. App'x 352, 353 (5th Cir. 2006) (per curiam) ("On sufficient facts, the common-law defenses of duress and necessity can justify a violation of a firearms possession statute."); United States v. Gant, 691 F.2d 1159, 1161 (5th Cir. 1982) (noting that we have "recognize[d] the general availability of common-law defenses to such a charge").

But that doesn't help Smith, because those exceptions "do[] not negate any element of the offense." They're affirmative defenses. And, where—as here—a defendant chooses to plead guilty, a district court doesn't "err[] in accepting a guilty plea when the factual basis contains an affirmative defense that does not negate any offense element." Ortiz, 927 F.3d at 877.

Ortiz, 927 F.3d at 877 ("Even if the factual basis here revealed that Ortiz's possession were justified, it nonetheless established that his conduct satisfied every element of the offense.").

Thus, the district court did not err by failing to consider Smith's possible affirmative defenses. The majority's holding otherwise engrafts part of an affirmative defense onto the prima facie case for possession.

III.

Even supposing that the majority's newfangled interpretation of "possess" were correct, we should nonetheless affirm, because our review is for plain error only. The majority concocts its approach by layering our constructive-possession precedent onto an actual-possession case. But that's a problem for Smith, because, as the majority acknowledges, our review is for plain error. And plain error review requires Smith to show an error that was "clear and obvious under existing law."

Stevens v. United States, 470 F. App'x 303, 304 (5th Cir. 2012) (per curiam) (emphasis added); see also United States v. Olano, 507 U.S. 725, 734 (1993) (concluding that a "court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law" (emphasis added)); United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003) ("We conclude that any error by the district court in this regard was not plain or obvious, as we have not previously addressed this issue.").

Under existing law, (1) brevity didn't negate actual possession, and (2) a fingerprint sufficed to show actual possession. See Ortiz, 927 F.3d at 874; Hagman, 740 F.3d at 1049. Under those precedents, it's clear that a mere touch establishes actual possession. Consequently, the district court's failure to anticipate the majority's novel rule—that a felon must handle a firearm with sufficient vigor to render him "'master' over" it—isn't plain error. That rule wasn't clear or obvious under our precedents. The majority contrives it today.

IV.

The majority tacitly concedes the pandora's box it has opened, by punting on the grounds that we "need not decide every interaction with an item that could qualify as possession." Going forward, however, this court and our district judges will have to answer myriad bizarre questions in light of the majority's opinion: What must a felon do to become the "master of" a firearm? Must he grip it? Brandish it? Hold it for an extended period? Our precedent forecloses each option.

That can't be right, because we've said that a defendant's having a firearm "on his person" would show actual possession. Hagman, 740 F.3d at 1049.

That can't be right, because the fact that a "defendant's DNA or fingerprints were found on the firearm" would show actual possession. Hagman, 740 F.3d at 1049. And that evidence wouldn't necessarily show that a defendant brandished a gun.

That can't be right, because we've rejected arguments that "brief dominion over" contraband is insufficient to show actual possession. United States v. Toro, 840 F.2d 1221, 1237-38 (5th Cir. 1988); see also Ortiz, 927 F.3d at 874 ("Ortiz hints that the brevity of his possession rendered it short of what is required under the first element. The caselaw is against him."); United States v. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) ("That possession is momentary is immaterial."). Likewise, other circuits reject "any minimum temporal prerequisite for showing direct physical control of a gun." United States v. Pratt, 704 F. App'x 420, 425 (6th Cir. 2017); see also United States v. Matthews, 520 F.3d 806, 811 (7th Cir. 2008) ("[M]erely holding a firearm for a brief period of time is sufficient to constitute possession within the meaning of section 922."); United States v. Jackson, 598 F.3d 340, 351 (7th Cir. 2010) ("[T]he legislative history of 18 U.S.C. § 922 indicates that Congress sought to prohibit even a felon's brief possession of a firearm."). --------

Because the majority reaches that odd result, on plain-error review, only by reliance on inapposite authorities and definitions, I respectfully dissent.

De Leon, 170 F.3d at 498 (emphases added).