           Case: 15-11857   Date Filed: 05/24/2016   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      —————————————
                            No. 15-11857
                        Non-Argument Calendar
                      —————————————

                D.C. Docket No. 1:14-cr-00068-JRH-BKE-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

TYRONE A. MCDONALD,


                                                          Defendant-Appellant.

                     —————————————
                Appeal from the United States District Court
                   for the Southern District of Georgia
                     —————————————

                              (May 24, 2016)

Before WILLIAM PRYOR, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
              Case: 15-11857     Date Filed: 05/24/2016    Page: 2 of 12


      Tyrone McDonald appeals his convictions for possession of marijuana,

methamphetamine, and cocaine hydrochloride with intent to distribute, in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1), and 18 U.S.C. § 2 (Count One); possession of

a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §

924(c) (Count Two); and possession of a firearm by a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a) (Count Three). Specifically, Mr. McDonald

challenges the sufficiency of the evidence to support his convictions, the admission

of his prior convictions into evidence, and a jury instruction on flight.

                                           I

      On November 25, 2013, officers with the Richmond County Sherriff’s

Office approached 2454 Belgrade Court in an attempt to serve outstanding felony

arrest warrants on two individuals. One group of officers approached the front of

the house. A separate team of officers was positioned in a wooded area behind the

residence to intercept anyone fleeing in that direction. As the officers pulled up to

the house, various individuals who had been standing in front of the house ran

towards the back of the house, through a gap in a wooden privacy fence, and into

the wooded area. One of those individuals was Mr. McDonald. When officers

apprehended Mr. McDonald, he laid on the floor and said, “I give up. Man, I’m

done.”




                                           2
             Case: 15-11857     Date Filed: 05/24/2016   Page: 3 of 12


      Officers then deployed a trained narcotics dog to conduct an open air search

of the wooded area for contraband. Mr. McDonald lived at 2458 Belgrade Court—

two houses down from 2454 Belgrade Court. In the wooded area behind his house,

which was not separated by a fence or other enclosure, police found various items,

including: a Mount Olive glass pickle jar, which was sitting in plain view,

containing vacuum sealed bags of marijuana; a Bushmaster AR-15 assault rifle,

located on the ground nearby and partially covered by a red plastic bag; and a

closed box buried in the ground containing an Eaton’s pickle jar with three baggies

of methamphetamine and cocaine, a digital scale, as well as a mason jar containing

another digital scale and a baggie of marijuana.

      The police conducted a fingerprint analysis of the recovered items and found

Mr. McDonald’s fingerprints on the Bushmaster AR-15, the Eaton’s pickle jar, and

the mason jar. No other person’s fingerprints were recovered from the items. A

print that could not be excluded as Mr. McDonald’s was found on one of the

vacuum-sealed bags of the marijuana in the Mount Olive pickle jar. In total, the

officers recovered 224.3 grams of marijuana, 13.8 grams of methamphetamine, and

0.37 grams of cocaine. The police estimated the value of the drugs to be $1,500

for the marijuana, $400 to $450 for the methamphetamine, and $50 to $70 for the

cocaine.




                                         3
             Case: 15-11857     Date Filed: 05/24/2016   Page: 4 of 12


      At trial, the government sought to admit Mr. McDonald’s prior convictions

for possession of marijuana with intent to distribute, possession of cocaine, and

possession of marijuana. Mr. McDonald objected, but the district court admitted

the evidence under Federal Rule of Evidence 404(b), as evidence of similar acts

relevant to Mr. McDonald’s intent in possessing the narcotics charged.

      At the close of the government’s case, Mr. McDonald moved for a judgment

of acquittal under Federal Rule of Criminal Procedure 29, arguing that the

evidence was legally insufficient. The district court denied the motion. After

presenting his case, Mr. McDonald did not renew his motion for acquittal and did

not file a motion for a new trial. The government requested a flight instruction,

which the district court issued over Mr. McDonald’s objection. The jury convicted

Mr. McDonald on all counts.

                                         II

      Mr. McDonald first challenges the sufficiency of the evidence as to all

charges. Generally, 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. See United States v. Schier, 438 F.3d

1104, 1107 (11th Cir. 2006). But where a defendant moves for a judgment of

acquittal at the close of the government’s case and does not renew the motion at

the close of the evidence, we will uphold a conviction “unless there is a manifest

                                         4
              Case: 15-11857    Date Filed: 05/24/2016    Page: 5 of 12


miscarriage of justice—if the evidence on a key element of the offense is so

tenuous that a conviction would be shocking.” United States v. Bischel, 156 F.3d

1148, 1150 (11th Cir. 1998) (internal quotation marks and citation omitted).

      On appeal, Mr. McDonald argues that the evidence did not establish a

physically tangible connection between himself and the drugs and AR-15. He says

that the fingerprint evidence that tied Mr. McDonald to the contraband was purely

circumstantial, and the police did not establish that the fingerprints could only have

been impressed by Mr. McDonald at the time of the commission of the crime

charged. This argument is unpersuasive.

      When examining the sufficiency of the evidence, we do not distinguish

between circumstantial and direct evidence. See United States v. Tate, 586 F.3d

936, 945 (11th Cir. 2009). Moreover, it is unnecessary, as Mr. McDonald argues,

for the police to have found the contraband on his person or seen him discard the

contraband during the pursuit through the woods: possession can be actual or

constructive. See United States v. Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008).

      “Constructive possession exists when a defendant has knowledge of the

thing possessed coupled with the ability to maintain control over it or reduce it to

his physical possession even though he does not have actual personal dominion.”

United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (internal quotation

marks and citation omitted). Here all of the contraband items were found in the

                                          5
             Case: 15-11857     Date Filed: 05/24/2016   Page: 6 of 12


wooded area directly behind Mr. McDonald’s house and no fence separated that

area from the house. Mr. McDonald’s fingerprints were recovered from the jars

containing the drugs and electric scales, as well as from the AR-15 assault rifle.

No other person’s fingerprints were on the contraband, and the government

presented testimony from a fingerprint analyst pertaining to weather conditions

possibly degrading fingerprints, from which an inference could be drawn that the

fingerprints were made close in time to the arrest. This evidence is enough to

support the jury’s finding of constructive possession.

      Moreover, when reviewing the evidence presented for each count charged,

we find it sufficient to support Mr. McDonald’s convictions.

      “To convict a person of possession with intent to distribute a controlled

substance under 21 U.S.C. § 841(a)(1), the government is required to prove three

elements: (1) knowledge; (2) possession; and (3) intent to distribute.” United

States v. Hernandez, 743 F.3d 812, 814 (11th Cir. 2014) (internal quotation marks

and citation omitted). The evidence presented at trial showed Mr. McDonald’s

fingerprints on the Eaton’s and mason jars, which contained the drugs and scales.

There was also testimony regarding the amount of drugs found and the digital

scales, which indicated an intent to distribute. See United States v. Poole, 878 F.2d

1389, 1392 (11th Cir. 1989) (“Intent to distribute can be proven circumstantially

from, among other things, the quantity of cocaine and the existence of implements

                                          6
             Case: 15-11857    Date Filed: 05/24/2016   Page: 7 of 12


such as scales commonly used in connection with the distribution of cocaine.”).

Moreover, the contraband was located right behind Mr. McDonald’s home, in an

area not separated by any type of barrier. Finally, evidence of Mr. McDonald’s

prior convictions suggested that he had the intent to distribute the illegal drugs.

This evidence collectively is sufficient to support the jury’s conviction on Count

One.

       To obtain a conviction for a violation of 18 U.S.C. § 922(g)(1), the

government must prove that (1) the defendant was a convicted felon; (2) he

knowingly possessed a firearm; and (3) the firearm was in or affected interstate

commerce. See United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014).

Both parties stipulated to the fact that Mr. McDonald was a convicted felon.

Additionally, police recovered Mr. McDonald’s fingerprints from the Bushmaster

AR-15, which was located in the same area as the drugs, behind Mr. McDonald’s

house.   Once again, this is sufficient for a reasonable jury to find that Mr.

McDonald had constructive possession of the firearm. Finally, the government

introduced evidence that the AR-15 rifle had been manufactured in Utah and had

traveled to Maine before finally entering Georgia, which satisfies the interstate

commerce element. Sufficient evidence was presented to support the jury’s

conviction on Count Three.




                                        7
              Case: 15-11857     Date Filed: 05/24/2016    Page: 8 of 12


      Finally, 18 U.S.C. § 924(c) provides enhanced penalties for possessing a

firearm in furtherance of any drug trafficking crime in which a defendant is

involved. See 18 U.S.C. § 924(c)(1)(A). While the presence of a gun during a

drug-trafficking offense is not sufficient, by itself, to sustain a § 924(c) conviction,

additional evidence, such as evidence of the firearm’s accessibility, its proximity to

the drugs, the time and circumstances under which the gun is found, and the type

of gun can meet the standard necessary to sustain a conviction. See United States

v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). Here, the AR-15 assault rifle

was found in close proximity to the illegal drugs; both the assault rifle and the

drugs bore Mr. McDonald’s fingerprints; and the narcotics dog alerted because the

AR-15 assault rifle was covered in drug residue, indicating that someone had

handled it after touching drugs. Finally, the government presented evidence that

guns are often used in drug deals for protection, and that keeping the gun near

drugs was intimidating in and of itself. Thus, a reasonable jury could conclude Mr.

McDonald possessed the AR-15 assault rifle in furtherance of trafficking drugs.

      In sum, the evidence is not so tenuous that Mr. McDonald’s convictions are

shocking. Because they do not constitute a manifest miscarriage of justice, we

uphold Mr. McDonald’s convictions.




                                           8
             Case: 15-11857     Date Filed: 05/24/2016   Page: 9 of 12


                                        III

      Mr. McDonald also argues that the government introduced his prior

convictions for possession of marijuana with intent to distribute, possession of

cocaine, and possession of marijuana as improper character and propensity

evidence. We disagree.

      We review a district court’s ruling on the admissibility of evidence for abuse

of discretion. See United States v. Brown, 587 F.3d 1082, 1091 (11th Cir. 2009).

Although evidence of past acts or crimes is inadmissible to prove a person’s

character to show that on a particular occasion a person acted in conformity with

that character, it is admissible to prove, among other things, intent and knowledge.

See Fed. R. Evid. 404(b). “For evidence of other crimes to be admissible under

Rule 404(b), (1) it must be relevant to an issue other than the defendant’s

character; (2) there must be sufficient proof to enable a jury to find by a

preponderance of the evidence that the defendant committed the act(s) in question;

and (3) the probative value of the evidence cannot be substantially outweighed by

undue prejudice, and the evidence must satisfy Rule 403.”           United States v.

Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (citation omitted).

      Here, the district court found the prior convictions relevant to the issue of

intent, as Mr. McDonald raised the issue of intent by pleading not guilty to the

charged offenses and by arguing he did not possess the contraband. See id. at 1345

                                         9
             Case: 15-11857       Date Filed: 05/24/2016   Page: 10 of 12


(noting that a defendant who enters a not guilty plea makes intent a material issue

absent affirmative steps to remove intent as an issue). Next, the district court held

that there was sufficient proof to permit a jury finding that the defendant

committed the prior acts because the government offered into evidence certified

copies of the convictions. Finally, the district court found that the probative value

of the evidence would not be substantially outweighed by any prejudicial effect

because the convictions were “not so heinous as to shock the jury” or create a

significant prejudicial effect.     Moreover, the district court issued a limiting

instruction directing the jury to consider the prior convictions only for proper Rule

404(b) purposes. We conclude that the district court did not abuse its discretion in

admitting this evidence.

                                           IV

      Finally, Mr. McDonald argues that the district court erred in giving a flight

instruction because there was insufficient evidence from which a jury could

conclude that he ran from police to avoid apprehension for the charged crimes. We

review a district court’s jury instructions under an abuse of discretion standard.

See United States v. Williams, 541 F.3d 1087, 1089 (11th Cir. 2008).

      “Evidence of flight is admissible to demonstrate consciousness of guilt and

thereby guilt.” Id. (internal quotation marks and citation omitted). A district

court’s use of a flight instruction is not an abuse of discretion if a reasonable jury

                                           10
              Case: 15-11857    Date Filed: 05/24/2016    Page: 11 of 12


could find, based on the evidence, that the defendant fled the police to avoid the

charged crime. See id. As we have explained:

              The probative value of evidence depends upon the degree
              of confidence with which four inferences can be drawn:
              (1) from the defendant’s behavior to flight; (1) from
              flight to consciousness of guilt; (3) from consciousness
              of guilt to consciousness of guilt concerning the crime
              charged; and (4) from consciousness of guilt concerning
              the crime charged to actual guilt of the crime charged.

United States v. Wright, 392 F.3d 1269, 1278 (11th Cir. 2004) (citation omitted).

        We have approved flight instructions even when the evidence could support

more than one motive for flight, because it is for the jury to infer the reason for the

defendant’s decision to flee. See id. at 1279. In Williams, for example, the

defendant fled from police, was apprehended, and was charged with possession

with intent to distribute five grams or more of cocaine base. Williams, 541 F.3d at

1088. At the time of the chase, the defendant had at least five outstanding warrants

for his arrest that were unrelated to the eventual charged crime. See id. at n.2.

There, we held that a reasonable jury could have found that the defendant fled to

avoid the charged crime as opposed to the numerous other offenses. See id. at

1089.

        Here, Mr. McDonald did not have any outstanding warrants or any other

reason for his flight, but he nonetheless still fled as police approached the

residence. When he was apprehended, Mr. McDonald said, “I give up, Man, I’m

                                          11
              Case: 15-11857     Date Filed: 05/24/2016    Page: 12 of 12


done.” Two doors down, behind Mr. McDonald’s house, police found contraband

with Mr. McDonald’s fingerprints. In sum, viewing this evidence in the light most

favorable to the government, see Wright, 352 F.3d at 1279, we do not find that the

district court abused its discretion by issuing the flight instruction.

                                           V

      For the foregoing reasons, we affirm the district court’s rulings on the

admission of evidence and the use of a flight instruction, as well as Mr.

McDonald’s convictions.

AFFIRMED.




                                           12
