           Case: 18-13681   Date Filed: 04/06/2020   Page: 1 of 13



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13681
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:17-cr-00253-MSS-CPT-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JOHNNIE CHARLES GRIMSLEY, JR.,
a.k.a. Johnny Grimsley,
                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (April 6, 2020)

Before JORDAN, BRANCH, and TJOFLAT, Circuit Judges.

PER CURIAM:
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       Johnnie C. Grimsley, Jr. appeals his convictions for two counts of

possessing a firearm and ammunition as a convicted felon. On appeal, Grimsley

argues that the district court erred by instructing the jury on aiding and abetting his

codefendant, Timothy Gavin, Jr., in possession of a firearm as a felon because the

government did not present evidence that Gavin was a convicted felon. He also

argues that the evidence was insufficient to support his convictions because the

government failed to prove that he constructively possessed the firearms and

ammunition. After a review of record, we affirm.

                                       I. Background

       Grimsley was charged with possessing a firearm as a felon, in violation of

18 U.S.C. §§ 922(g)(1), 924(e) (Count Six), and possessing a firearm and

ammunition as a felon, also in violation of §§ 922(g)(1), 924(e) (Count Eight).

The indictment also alleged, in those same counts, that Grimsley aided and abetted

his co-defendant, Timothy Gavin. 1. Gavin pleaded guilty, while Grimsley

proceeded to trial.

       At trial, the government called Carlos Bonilla, an undercover detective with

the St. Petersburg, Florida Police Department (“SPPD”), who testified Grimsley

was present at two firearm transactions between Bonilla and Gavin. As an


       1
         Gavin was charged in all the same counts as Grimsley and was also accused of aiding
and abetting Grimsley. Gavin and another co-defendant not a party to this appeal were charged
in the same indictment with several additional counts.
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undercover detective, Bonilla recorded both transactions with a hidden camera in

his vehicle. The first transaction took place on November 16, 2016 in a Publix

parking lot. Grimsley and Gavin arrived in the same car and parked next to

Detective Bonilla; Grimsley was driving. Gavin slid a firearm from the backseat

of his vehicle into the backseat of Detective Bonilla’s vehicle. Gavin then got into

the front passenger seat of Detective Bonilla’s vehicle, and Grimsley stood near the

front of the vehicle. Much of the recorded audio of this first transaction—

including Detective Bonilla’s conversation with Grimsley—was unclear, so at trial,

Detective Bonilla narrated as the video played for the jury. According to Bonilla’s

testimony, Detective Bonilla asked Gavin where he had gotten the firearm, to

which Gavin replied “[f]rom my cousin.” Detective Bonilla asked, “you mean

him?”, 2 to which Gavin replied “yeah.” When Bonilla again asked Grimsley who

gave them the weapon, Grimsley replied, “from my homeboy.” Grimsley also told

Detective Bonilla that he could “get [sic] anything he want.”

       As part of Detective Bonilla’s cover, he pretended to be an employer and

small business owner. The detective gave job applications for custodial work to

both defendants at the first transaction, with the goal of identifying them from the




       2
         At trial, there was a great deal of controversy over how Detective Bonilla knew Gavin
was referring to Grimsley. There was an informant outside of the car, and the detective did not
point to Grimsley as he asked the question. However, the detective maintained that he was
“referring to” Grimsley.
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information they provided. On cross-examination, Detective Bonilla testified that

Grimsley completed the job application Detective Bonilla gave him because he

thought he would get a job buffing floors.

       The second transaction took place in a motel parking lot on November 22,

2016. This transaction was also video recorded and played for the jury. After

Detective Bonilla parked, Gavin and Grimsley came down from the third floor of

the motel and walked to the passenger side of Detective Bonilla’s vehicle. 3 Gavin

got into the front passenger seat of Detective Bonilla’s vehicle and Grimsley stood

near the rear passenger door. Gavin had a green bag and a cereal box in his hands.

The bag contained shotgun shells and the cereal box held a handgun and handgun

ammunition packaged together in a plastic bag. As payment for the shotgun shells,

Gavin told Detective Bonilla “I need $50 to my dog.” Detective Bonilla then

turned and looked at Grimsley—who was just outside the car—and asked through

the open rear window, “this is yours?” to which Grimsley replied “yeah.” Gavin

mumbled a reply and then said “yeah.” Detective Bonilla paid Grimsley $400 for

the gun.

       After the government rested, Grimsley moved for a directed verdict on both

counts. Grimsley argued the government did not establish Grimsley aided or


       3
         Detective Bonnilla testified that he saw them “coming down from the third floor of the
motel” and “the front door was facing west towards [the] road,” but he did not testify that he saw
them in the motel room or actually exiting the motel room.
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abetted Gavin in the possession of a firearm as a felon because it did not present

evidence of a conversation between him and Gavin or anything “that says they

were working together to sell a firearm.” He then argued that the evidence was

insufficient to show that he possessed a firearm because he did not have control of

the firearm. Grimsley contended that the government only presented evidence that

Gavin touched the firearm—not that Grimsley had control of it. The court denied

the motion as to the firearms but ruled that there was insufficient evidence for

possession of the shotgun shells.

      During the charge conference, when the government asked for an aiding and

abetting instruction as an alternate theory to the possession counts, the court noted

that aiding and abetting had not been pled in the indictment, referring to the lack of

citation to 18 U.S.C. § 2. The government responded that the citation was not

necessary for the indictment because the indictment included the aiding and

abetting language. Defense counsel replied “I disagree, Your Honor. I object to

the aiding and abetting. Their position throughout this case—.” At that point the

court interjected to ask the government, “[d]o you have a case?” The government

produced a case that they contended solved the issue and handed it to the judge.4

The court then overruled the objection to the aiding and abetting instruction.



      4
          The record does not specify which case was produced.

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      In charging the jury, the court instructed the jury on possession and,

specifically, constructive possession. The court also charged the jury on aiding

and abetting as follows:

                A defendant aids and abets a person if the defendant
                intentionally joins with the person to commit a crime. A
                defendant is criminally responsible for the acts of another
                person if the defendant aids and abets the other person. A
                defendant is also responsible if the defendant willfully
                directs or authorizes the acts of an agent, employee, or
                other associate.

                But finding that a defendant is criminally responsible for
                the acts of another person requires proof that the
                defendant intentionally associated with or participated in
                the crime, not just proof that the defendant was simply
                present at the scene of a crime or knew about it. In other
                words, you must find beyond a reasonable doubt that the
                defendant was a willful participant and not merely a
                knowing spectator.


During deliberations, the jury asked the district court “[d]o we have written

documentation that Gavin was a convicted felon on 11-16-16?”5 The government

conceded that there was “nothing in evidence” as to Gavin’s criminal history. The

court told the jury that it “should look to the documentation and evidence in its

possession to consider this question.”

      The jury found Grimsley guilty on both counts. After trial, Grimsley filed a

renewed motion for a judgment of acquittal, generally reiterating his arguments


      5
          This was the date of the first drug transaction.
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made during trial. The court denied the motion. Grimsley timely filed a notice of

appeal.

      On appeal, Grimsley argues that (1) the district court should not have given

the aiding and abetting instruction without any evidence in the record to support it,

and (2) there was insufficient evidence presented at trial to convict Grimsley of the

§ 922(g)(1) count.

                               II. Standards of Review

      Where a defendant objected to a jury instruction at trial, we review the

district court’s decision to give that instruction for abuse of discretion. United

States v. Deverso, 518 F.3d 1250, 1254 (11th Cir. 2008). Even if error is found,

the harmless error rule applies to incorrect jury instructions. See United States v.

House, 684 F.3d 1173, 1196 (11th Cir. 2012). “Thus, [we] will not reverse a

conviction unless, after examining the entire charge, we find that the issues of law

were presented inaccurately, the charge included crimes not contained in the

indictment, or the charge improperly guided the jury in such a substantial way as to

violate due process.” United States v. Richardson, 233 F.3d 1285, 1292 (11th Cir.

2000) (quotation marks omitted).

      We review the sufficiency of the evidence de novo, “viewing the evidence in

the light most favorable to the government and drawing all reasonable inferences

in favor of the verdict.” United States v. Schier, 438 F.3d 1104, 1107 (11th Cir.


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2006). The district court’s denial of “motions for a judgment of acquittal will be

upheld if a reasonable trier of fact could conclude that the evidence establishes the

defendant’s guilt beyond a reasonable doubt.” United States v. Rodriguez, 218

F.3d 1243, 1244 (11th Cir. 2000). We will not reverse a conviction solely because

the defendant “put forth a reasonable hypothesis of innocence” at trial, because

“the issue is not whether a jury reasonably could have acquitted but whether it

reasonably could have found guilt beyond a reasonable doubt.” United States v.

Campo, 840 F.3d 1249, 1258 (11th Cir. 2016).

                                        III. Discussion

   A. Aiding and Abetting Jury Instruction

       First, as to whether giving the aiding and abetting instruction was an abuse

of discretion, we note that where a district court commits “an error of law,” the

error is “an abuse of discretion per se.” United States v. Peter, 310 F.3d 709, 711

(11th Cir. 2002). 6 “The giving of unwarranted jury instructions is error.” Myers v.

Day & Zimmermann, Inc., 427 F.2d 248, 253 (5th Cir. 1970). There is error when

a factual predicate for a legal theory has not been shown: “it is settled law that it is



       6
          The government contends that we should review this alleged error under the plain
review standard because the defendant did not specifically preserve his objection. The
government argues that while the defendant did object to the instruction, he was objecting on a
different basis than the one at issue here. Defense counsel did object to the instruction but was
interrupted by the judge before he could explain his rationale. Because we find that Grimsley’s
argument fails even without plain error review, we need not decide if the argument was waived
below.
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error in the court to give an instruction when there is no evidence in the case to

support the theory of fact which it assumes.” Case of Tweed, 83 U.S. 504, 518

(1872). We have recently stated that “an aiding and abetting instruction is

permissible where the evidence presented would support a conviction for that

aiding and abetting offense.” United States v. Seabrooks, 839 F.3d 1326, 1333

(11th Cir. 2016).

      In order to sustain an aiding and abetting theory of conviction, which we

note was not a separate charge but merely an alternate theory for the possession of

a firearm as a felon counts, the government would have needed to show that (1)

Gavin committed the crime of possessing a firearm as a convicted felon, and (2)

Grimsley helped Gavin. United States v. Martin, 747 F.2d 1404, 1407 (11th Cir.

1984) (“One cannot aid or abet himself.”). Here, the government concedes that it

did not present evidence at trial that Gavin was a convicted felon. For this reason,

the aiding and abetting instruction, which indicated that Grimsley could be

convicted for aiding and abetting a felon to possess a weapon, was given in error.

See id. at 1408 (holding aiding and abetting instructions improper when the

evidence did not show that the only people the defendant could have aided

committed any offense).

      However, upon a review of the record, we determine that the inclusion of the

aiding and abetting instruction was harmless error in this particular case. We are


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guided by Supreme Court precedent, which instructs us that general verdicts

supported by one or more alternate theories are to be upheld if the evidence is

sufficient as to any of the theories. Griffin v. United States, 502 U.S. 46, 49 (1991)

(upholding a common law rule that “a general jury verdict was valid so long as it

was legally supportable on one of the submitted grounds—even though that gave

no assurance that a valid ground, rather than an invalid one, was actually the basis

for the jury's action). In Griffin, the court upheld a general verdict even with

insufficient evidence to support one theory of conviction:

             Jurors are not generally equipped to determine whether a
      particular theory of conviction submitted to them is contrary to law—
      whether, for example, the action in question is protected by the
      Constitution, is time barred, or fails to come within the statutory
      definition of the crime. When, therefore, jurors have been left the
      option of relying upon a legally inadequate theory, there is no reason
      to think that their own intelligence and expertise will save them from
      that error. Quite the opposite is true, however, when they have been
      left the option of relying upon a factually inadequate theory, since
      jurors are well equipped to analyze the evidence.

Griffin, 502 U.S. at 59. That there was no evidence in the record as to Gavin’s

criminal history rendered the aiding and abetting theory invalid as a factual matter,

not a matter of law. Therefore, the jury was “well equipped” to recognize and

analyze the evidence here. The question then becomes whether there was

sufficient evidence to convict Grimsley on the alternative theory of constructive

possession of the firearm himself. Because we find the evidence sufficient for

conviction of possession of the firearm as a convicted felon, as analyzed further
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below, any error in the aiding and abetting instruction was harmless. See United

States v. Hornaday, 392 F.3d 1306 (11th Cir. 2004) (holding an erroneous

instruction for aiding and abetting was harmless error because the evidence

supported the verdict on other grounds).

   B. Sufficiency of the Evidence

      To prove a violation of § 922(g), the government had to show that (1) the

defendant was a convicted felon, (2) the defendant knowingly possessed a firearm,

and (3) the firearm was in or affected interstate commerce. United States v.

Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003). Grimsley stipulated to the

convicted felon and interstate commerce, leaving whether he knowingly possessed

the firearm as the only question. The government may prove possession on a

theory of constructive possession with direct or circumstantial evidence. United

States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). “[E]vidence proves

constructive possession if it shows that the defendant exercised ownership,

dominion, or control over the firearm, or that he had the power and intent to

exercise dominion or control over it.” Id. (finding constructive possession of a

firearm found in the glovebox where defendant had been in the driver’s seat just

before search of vehicle). Similarly, we have held that the location of two pistols

under the driver’s seat established that the passenger “had sufficient access to the




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firearms to establish possession.” United States v. Gates, 967 F.2d 497, 499 (11th

Cir. 1992).

      There was sufficient evidence that Grimsley constructively possessed the

firearms in both transactions when “we view the evidence in the light most

favorable to the government,” as we must. Campo, 840 F.3d at 1258. Both

transactions were recorded. Regarding the first transaction, Detective Bonilla

testified that Gavin indicated he got the firearm from Grimsley. Grimsley also told

the detective that he could “get more.” Grimsley’s statements evidenced his

“power and intent to exercise control over” the firearm by demonstrating his

ownership. Howard, 742 F.3d at 1341. Further, Grimsley was driving the vehicle

that he and Gavin arrived in, which on its own could have supported a conviction

for the first transaction. See id. As to the second transaction, Grimsley stated that

the firearm was his. He accepted the money for the weapon from Detective

Bonilla. These facts show that Grimsley asserted dominion and control over the

firearm and ammunition by claiming ownership of the firearm and actively

engaging in the close of the sale. We also note that Bonilla testified that Grimsley

and Gavin walked together from motel to Bonilla’s car where the transaction took

place. That circumstantial evidence suggests Grimsley was in a hotel room with

all the firearms and ammunition. We have previously held that such evidence

supports a theory of constructive possession. See, e.g., United States v. Riggins,


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563 F.2d 1264, 1266 (5th Cir. 1977) (constructive possession found for defendant

in a hotel room when drug deal was conducted between two others in the adjoining

bathroom).

        Grimsley argues that the evidence only shows that he was present to fill out

a job application. It is true that a reasonable interpretation of the evidence could

have been that he was present to fill out a job application and was only a bystander

to Gavin’s criminal conduct. But the government is not required to exclude every

reasonable hypothesis of innocence. See Campo, 840 F.3d at 1258. Moreover,

there was no evidence presented that Grimsley knew about the job prospect prior to

arriving to the scene of the first transaction.

        Grimsley also argues that, because there was insufficient evidence to prove

he aided and abetted Gavin, his conviction should be set aside. But, as addressed

above, this argument is foreclosed by Supreme Court precedent. Griffin, 502 U.S.

at 59

        Viewed in the light most favorable to the government, the evidence was

sufficient to convict Grimsley on both counts. Accordingly, we affirm.

        AFFIRMED.




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