                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0358n.06

                                              No 13-3542
                                                                                               FILED
                            UNITED STATES COURT OF APPEALS                              May 13, 2014
                                 FOR THE SIXTH CIRCUIT                              DEBORAH S. HUNT, Clerk


    UNITED STATES OF AMERICA,                         )
                                                      )
          Plaintiff-Appellee,                         )       ON APPEAL FROM THE
                                                      )       UNITED STATES DISTRICT
    v.                                                )       COURT FOR THE NORTHERN
                                                      )       DISTRICT OF OHIO
    QUAVON PETERSON,                                  )
                                                      )                OPINION
          Defendant-Appellant.                        )
                                                      )
                                                      )


Before: MOORE and ROGERS, Circuit Judges, and NIXON, District Judge.*

         JOHN T. NIXON, District Judge. Quavon Peterson appeals from a jury conviction for

possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that,

based on the evidence adduced at trial and specific circumstances of the case, the district judge

committed reversible error in declining to amend the Sixth Circuit Pattern Jury Instruction on

flight. We find insufficient support to reverse the conviction based on the jury instruction.

Accordingly, we AFFIRM.

                                          I. BACKGROUND

         Trial in this case commenced on December 13, 2012, and on December 14, 2012, the jury

returned a guilty verdict, convicting Peterson of Count One of the Indictment, being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). R. 7 (Indictment) (Page ID #11–


*
 The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by
designation.
No. 13-3542, United States v. Quavon Peterson


12); R. 30 (Jury Verdict) (Page ID #106). On April 15, 2013, the district court sentenced

Peterson to fifty-four months of imprisonment followed by three years of supervised release, and

ordered him to pay a $100 special assessment. R. 42 (Minutes of Sentencing) (Page ID #451–

52). Peterson filed his notice of appeal on April 23, 2013. R. 46 (Notice of Appeal) (Page ID

#467). He appeals the conviction based on the district court’s refusal to include his proposed

language—which would have supplemented Sixth Circuit Pattern Jury Instruction 7.14—in its

instructions to the jury.

        Peterson argues the “highly limited and circumstantial nature” of the prosecution’s case

and the “conflicting testimony about whether there actually was an attempt [by the defendant] to

flee” compelled the district judge to instruct the jury specifically that evidence of a defendant’s

flight alone is not sufficient to establish guilt. (Appellant’s Br. at 10).

        The events at issue for trial in this case occurred on July 4, 2012, at approximately 1 a.m.

R. 34 (Trial Tr. Vol. I at 22, 58–59) (Page ID #219, 255–56). Around that time, two Toledo

Police Officers, Kevin Dumas and Neil Piasecki, were directed by a lieutenant to investigate an

individual seated on the front porch of an uninhabited home on Fernwood Avenue in Toledo,

Ohio. Id. at 20, 25–26 (Page ID #217, 222–23). The Officers were in uniform and in a “limited

marked” Suburban with Officer Dumas driving and Officer Piasecki in the passenger seat. Id. at

25–26 (Page ID #222–23). Officer Dumas recalled at trial that the location on Fernwood Avenue

was on his right, and viewed through his passenger side window. Id. at 27 (Page ID #224).

Dumas testified that they were two houses away from the specified location when he observed an

individual, later revealed to be Peterson, seated on the porch steps of the house. Id. at 27–28

(Page ID #224–25). Dumas also recalled that it was dark outside and there were no lights on the

porch. Id. at 42 (Page ID #239). Despite this, Dumas testified that Peterson “caught site [sic] of



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No. 13-3542, United States v. Quavon Peterson


us. And when he saw us, there was that … shit and get look.” Id. at 28 (Page ID #225). At that

point, Dumas testified, Peterson made “a motion from his body with his right hand” and

“reach[ed] towards the ground next to the stairs.” Id. (Page ID #225). Piasecki later testified

that he did not see this movement. Id. at 136 (Page ID #333). Further, Piasecki testified that

Dumas did not alert Piasecki to the movement until after Peterson had been detained. Id. at 137

(Page ID #334).

        Piasecki and Dumas both testified that Peterson then stood up and proceeded to walk

towards the Suburban.1 Id. at 32, 136 (Page ID #229, 333). Officer Scott Bailey, who was

driving in a separate vehicle behind Dumas and Piasecki, testified that he observed Peterson get

up and “start to, not sprint, but try to get out of that area very quickly.” Id. at 60–61 (Page ID

#257–58). Dumas testified that Piasecki then stopped Peterson, and that Dumas subsequently

discovered a pistol next to the porch steps. Id. at 34–35 (Page ID #231–32). Peterson was

arrested and indicted for violating 18 U.S.C. § 922(g)(1). R. 7 (Indictment) (Page ID #11–12).

                                       II. FLIGHT INSTRUCTION

        After trial the district court issued the following written instruction to the jury on “fleeing

the scene”;

                 You have heard testimony that Defendant fled from officers. If
                 you believe Defendant fled, then you may consider this conduct,
                 along with all the other evidence, in deciding whether the
                 Government has proved beyond a reasonable doubt that Defendant
                 committed the crime charged. This conduct may indicate that
                 Defendant thought he was guilty and was trying to avoid
                 punishment. On the other hand, an innocent person may flee for
                 some other reason.




1
  Although Dumas did not testify that Peterson was running, the Government asked at trial “what direction did the
individual on the stoop run?” id. at 32 (Page ID #229), which Peterson argues created an undue impression of flight.
(Appellant’s Br. at 7.)

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No. 13-3542, United States v. Quavon Peterson


R. 27-1 (Jury Instructions at 12) (Page ID #102). The Court also read this instruction. R. 35

(Trial Tr. Vol. II at 31) (Page ID # 373).2 The above is the same language as Sixth Circuit

Pattern Jury Instruction 7.14.

         Peterson had objected to this instruction prior to trial, see R. 52 (Mtn to Enlarge the

Record at 2, 5) (Page ID #489, 492), and renewed the objection at trial, R. 35 (Trial Tr. Vol. II at

17) (Page ID #359). Peterson requested that the court amend the instruction to include the

following language: “The intentional flight of a defendant is not of course sufficient in itself to

establish his guilt; but it is a fact which, if proved, may be considered in light of all other

evidence in the case in determining guilt or innocence.” R. 52 (Mtn to Enlarge the Record at 5)

(Page ID #492). Peterson’s proposed language came from the commentary to Sixth Circuit

Pattern Jury Instruction 7.14, and United State v. Touchstone, 726 F.2d 1116, 1119 (6th Cir.

1984), which preceded the adoption of the pattern instruction. The district court declined to

amend the pattern instruction, stating that the pattern instruction “take[s] into account the

comment” and “tracks, if not the letter, the spirit” of Touchstone. R. 35 (Trial Tr. Vol. II at 35)

(Page ID #359).

         Peterson’s appeal is based on the district court’s rejection of his proposed amendment to

the instruction. He argues that the amendment was necessary due to the circumstantial nature of

the evidence in the case, and the inconsistent observations of the Officers as to whether Peterson

had made a movement near his waist while he was on the porch. He appears to argue further that

the evidence presented failed to “clearly indicate” that he fled at all, thus making the mere

inclusion of a flight instruction inherently prejudicial.3 (Appellant’s Br. at 14–16.)



2
  The trial transcript reads “term” instead of “testimony,” and it is unclear whether this was an error in the dictation
or the transcription.
3
  Peterson did not object to the instruction on this basis prior to or at trial.

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No. 13-3542, United States v. Quavon Peterson


         Challenges to jury instructions that were objected to at trial are reviewed on appeal under

the abuse of discretion standard. United States v. Williams, 612 F.3d 500, 506 (6th Cir. 2010).

We assess district court jury instructions to determine whether, taken as a whole, they

“adequately informed the jury of the relevant considerations and provided a basis in law for

aiding the jury in reaching its decision,” and reverse only where, as a whole, they were

“confusing, misleading, or prejudicial.” United States v. Russell, 595 F.3d 633, 642 (6th Cir.

2010) (quoting United States v. Frederick, 406 F.3d 754, 761 (6th Cir. 2005)). Whether jury

instructions are identical to or track the essential language of Sixth Circuit Pattern Jury

Instructions is one factor in determining if the provided instructions are misleading or plainly

erroneous. E.g., United States v. Damra, 621 F.3d 474, 499–500 (6th Cir. 2010); United States

v. Hines, 398 F.3d 713, 718 (6th Cir. 2005).

         Peterson provides no authority that requires a district court to amend pattern instructions

because evidence is in dispute or not fully corroborated by all witnesses. Peterson’s only support

for reversal based on the submission of a flight instruction to the jury, where there was

insufficient evidence of flight at trial, is that this Court and the Supreme Court have expressed

concern as to the probative value of flight evidence with respect to guilt. Appellant’s Br. at 14–

15 (citing United State v. Dillon, 870 F.2d 1125, 1126 (6th Cir. 1989) and Wong Sun v. United

States, 371 U.S. 471, 483 n.10 (1963)). However, while these cases support the contention that

flight may not be indicative of guilt, the submitted jury instruction adequately takes this into

account by stating that an “innocent person may flee for some other reason.” 4                               Evidence

submitted to the jury in this case concerning flight was admittedly thin; however, Officers

Dumas and Bailey both testified that they sensed that Peterson was moving to get away from the

4
  This language could be improved to the extent that there would be no suggestion that a defendant has any burden
to prove that he fled for an innocent reason, but we agree with the district court that the instruction, in this case,
sufficiently reflected the “spirit” of Touchstone.

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No. 13-3542, United States v. Quavon Peterson


porch. R. 34 (Trial Tr. Vol. I at 27–28, 61) (Page ID #224-225, 258). Accordingly, as evidence

of flight was introduced at trial, the determination of the credibility of the officers and the truth

of their statements is clearly within the province of the jury. This Court cannot re-weigh the

evidence, judge the credibility of the witnesses, or substitute its judgment for that of the jury.

United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007).

       Finally, even assuming arguendo that no flight evidence was presented, the instruction

clearly provided that the jury was not required to accept the Government’s evidence that

Peterson fled. See United States v. Mari, 47 F.3d 782, 785–87 (6th Cir. 1995) (acknowledging

that jurors are not generally equipped to determine whether a theory of conviction is contrary to

the law, but affirming jurors’ ability to discard factually inadequate theories of conviction).

Here, the instruction on flight made clear to the jury that if they “believe” that Peterson fled they

may “consider this conduct, along with all other evidence,” thus ensuring that the jury was not

compelled to find that Peterson fled, and further that a finding on flight would not be singularly

determinative on the issue of guilt. Accordingly, the district court did not abuse its discretion in

declining to amend the jury instruction on flight in this case.

                                       III. CONCLUSION

       For the foregoing reasons, we AFFIRM Peterson’s conviction for being a felon in

possession of a firearm.




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