                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  DEC 12 2002
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                               No. 01-5217
 v.                                                       D.C. No. 00-CR-147-H
                                                            (N.D. Oklahoma)
 KENNETH ROYNEAL EZELL,

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before EBEL, BALDOCK, and KELLY, Circuit Judges.**


       A jury convicted Defendant Kenneth Royneal Ezell of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possession of an unregistered

firearm, in violation of 26 U.S.C. § 5861(d). Defendant appeals, asserting the evidence at

trial was insufficient to support a finding (1) that he knowingly possessed the firearm as

required for a conviction under either statutory provision; or (2) that the alleged

       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
possession of the firearm affected interstate commerce as required for a conviction under

18 U.S.C. § 922(g)(1). We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm.

                                               I.

          On August 1, 2000, City of Tulsa police officers received a tip that Kenneth

Royneal Ezell could be found in an apartment located at 1334 East 37th Street North in

Tulsa, Oklahoma. Officers Derrick Alexander and Melvin Hendrix drove to the

apartment to arrest Ezell on an outstanding warrant. A woman, later identified as Helen

Thomas, answered the front door. Officer Alexander informed Thomas he had an

outstanding arrest warrant for Ezell and asked if Ezell was in the apartment. Thomas

denied Ezell was in the apartment, but agreed to allow officers to search the apartment.

          Inside the living room, Officer Alexander observed a sofa next to the front door

and a mattress on the floor next to the sofa. On the back of the sofa, about three feet from

the mattress, he observed the butt of a shotgun wrapped in a sheet. Unwrapping the sheet,

the officer observed a .20 gauge shotgun with a sawed-off barrel. The shotgun had a

barrel length of fourteen inches. He also observed five shotgun shells next to the shotgun.

Thomas denied having any knowledge of the shotgun or shells.

          Officer Hendrix then searched the second floor of the apartment. Inside a closet,

he observed that a trap door leading to the attic was slightly ajar, and that insulation from

the attic had fallen on the closet shelves below the trap door. Officer Hendrix called to


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Officer Alexander who also examined the upstairs closet. Both officers called for Ezell

but received no response. Officer Alexander then requested and received permission

from a neighbor to enter the upstairs bedroom of the adjacent apartment. In that

apartment, the officer observed that the trap door had been removed inside the closet and

that insulation from the attic had fallen on the clothes. Officer Alexander also observed a

footprint on some clothes and noted that a shelf inside the closet was broken. The officer

heard sounds of movement from the attic above the closet ceiling. The sound was

moving away from the officer. The officers ordered Ezell to come down and remained on

the scene. After approximately thirty minutes, Ezell emerged from the attic opening and

surrendered. Ezell was not wearing a shirt or shoes, and was unarmed.

       The officers arrested both Thomas and Ezell. At the police station, Ezell asked

Officer Alexander how Thomas would be charged. The officer responded that Thomas

would be charged with harboring a fugitive and with possession of the shotgun. Ezell

immediately stated that the shotgun belonged to him and that he did not want Thomas

charged with its possession. Officer Alexander informed Officer Hendrix of Ezell’s

statement. Ezell then asked Officer Hendrix what he could do about “owning up to the

shotgun.” Ezell later signed a waiver of rights and drafted a written statement. The

statement omitted any reference to the shotgun.

       At trial, Thomas testified for the government. She testified that she had dated

Ezell for several years and that they lived together in Oklahoma City and Tulsa. She also


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testified that she had leased the Tulsa apartment where Ezell was found and that Ezell

stayed in that apartment while she was in Oklahoma City. Concerning the night of the

arrest, she testified that she had arrived home around midnight and found Ezell and two

friends in the apartment. Shortly thereafter, she went to sleep on the mattress. She was

awakened by police knocking at the front door. The two friends were no longer in the

apartment. While she was answering the door, Thomas saw Ezell run upstairs. She

testified that she lied to officers about Ezell’s presence in the apartment because she was

afraid they would both be “in trouble.” Thomas also testified that she knew nothing about

the shotgun found in the apartment and that she had never seen Ezell with a gun.

       The parties stipulated to Ezell’s prior felony conviction. The parties also

stipulated to evidence that (1) the gun was a “firearm” as described by federal statutory

law; (2) the gun and ammunition were manufactured outside Oklahoma and were shipped

or transported in interstate commerce; and (3) the shotgun was not registered to Ezell.

                                              II.

       Ezell first asserts the evidence at trial was insufficient to support a finding that he

knowingly possessed a firearm. We review de novo sufficiency of evidence claims. See

United States v. Vallo, 238 F.3d 1242, 1246 (10th Cir. 2001). Evidence is sufficient to

support a conviction if, viewing the evidence in the light most favorable to the

government, a reasonable jury could have found the defendant guilty beyond a reasonable

doubt. Id. at 1247. In reviewing the evidence, we do not weigh conflicting evidence or


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consider witness credibility, as that duty is delegated exclusively to the jury. United

States v. Sanders, 240 F.3d 1279, 1281 (10th Cir. 2001). We resolve any conflicts in the

evidence in favor of the Government. Id.

       The Government may establish possession by showing constructive possession;

actual possession is not required. United States v. Hien Van Tieu, 279 F.3d 917, 922

(10th Cir. 2002) (citing United States v. Heckard, 238 F.3d 1222, 1228 (10th Cir. 2001)).

“To establish constructive possession, the Government must show the defendant

knowingly holds the power to exercise dominion or control over the firearm.” Id.

(quotations and citations omitted). If the defendant has exclusive possession of the

premises, knowledge and control are properly inferred. Id. If the defendant is not in

exclusive possession, the Government must show a connection or nexus between the

defendant and the firearm. Id. “To support a conviction for knowing possession where

there is evidence of joint occupancy, the Government must offer evidence supporting at

least a plausible inference that the defendant had knowledge of and access to the

weapon.” Id. (quotations and citations omitted). In the instant case, the Government

relied partially on Ezell’s post-arrest statements claiming ownership of the shotgun to

establish possession.

       A criminal conviction cannot be sustained when the offense is proven solely by an

uncorroborated extrajudicial confession. United States v. Chimal, 976 F.2d 608, 610

(10th Cir. 1992) (citing Smith v. United States, 348 U.S. 147, 152 (1954)). In addition to


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a confession, the Government must introduce independent corroborating evidence which

would tend to establish the trustworthiness of the statement. “The corroborating evidence

is adequate if it supports the essential facts admitted sufficiently to justify a jury inference

of the truth of the confession.” Id. at 610-11 (quotations and citations omitted). Ezell

asserts that his statements claiming ownership of the shotgun were motivated by his

desire to protect Thomas and accordingly are unreliable. He also notes that his

subsequent written statement omits any reference to the shotgun casting further doubt

on the reliability of his prior oral statements.

       After reviewing the record, we conclude the evidence sufficiently corroborates

Ezell’s statements claiming ownership of the shotgun. Officers found the shotgun in the

apartment where Ezell had been staying. Only Ezell and Thomas were present in the

apartment when the officers searched the unit. Thomas maintained throughout the search,

arrest and trial that she had no prior knowledge of the shotgun. Officers found the

shotgun on the sofa only three feet from the mattress in the living room. Officers testified

that there were no beds and no other mattresses in the apartment, raising an inference that

Ezell generally slept on the mattress in the living room. Thomas testified that she saw

Ezell running up the stairs after hearing the police knock at the door, establishing that

Ezell had been in close proximity to the shotgun prior to the officers’ arrival. Officers

testified they found Ezell in a state of partial undress, raising a reasonable inference that

Ezell had been sleeping on the mattress only three feet from the shotgun prior to the


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officers’ arrival. The evidence, viewed in a light most favorable to the Government,

adequately corroborates Ezell’s confession and is sufficient to support the jury’s finding

that Ezell possessed the shotgun.

                                            III.

       Ezell also asserts the evidence was insufficient to show that his alleged firearm

possession was in or affecting interstate commerce as required by 18 U.S.C. § 921(g)(1).

The parties stipulated to evidence that the firearm and ammunition were manufactured

outside Oklahoma and were shipped or transported in interstate commerce. But Ezell

argues that, to support a conviction, the Government must introduce evidence the firearm

possession had a current, actual and substantial effect on interstate commerce. This Court

addressed and expressly rejected Ezell’s arguments in United States v. Dorris, 236 F.3d

582, 584 (10th Cir. 2000) (holding the Government need not prove a firearm possession

had a substantial effect on interstate commerce to support a conviction). Under

controlling Tenth Circuit precedent, the Government need only establish the possessed

firearm previously traveled in interstate commerce to support a conviction under 18

U.S.C. § 922(g)(1). See id. Ezell stipulated to evidence sufficient to establish the firearm

possession was in or affecting interstate commerce.

                                            IV.

       The Government introduced sufficient evidence to corroborate Ezell’s confession

and the jury reasonably found Ezell constructively possessed the firearm. Ezell stipulated


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to facts sufficient to establish that the firearm possession was in and affecting interstate

commerce.

       Accordingly, the district court decision is AFFIRMED.

                                                   Entered for the Court,



                                                   Bobby R. Baldock
                                                   Circuit Judge




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