                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0569n.06

                                           No. 17-4294

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Nov 09, 2018
 UNITED STATES OF AMERICA,                                )                   DEBORAH S. HUNT, Clerk
                                                          )
        Plaintiff-Appellee,                               )
                                                                 ON APPEAL FROM THE
                                                          )
                                                                 UNITED STATES DISTRICT
 v.                                                       )
                                                                 COURT FOR THE
                                                          )
                                                                 NORTHERN DISTRICT OF
 TIMOTHY S. WORKMAN,                                      )
                                                                 OHIO
                                                          )
        Defendant-Appellant.                              )
                                                          )

BEFORE: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. On September 30, 2013, police officers

executed a search warrant on the residence of Timothy Workman, a convicted felon, and seized

six firearms and various ammunition. Workman was indicted for being a felon in possession of a

firearm (Count 1) and ammunition (Count 2) in violation of 18 U.S.C. § 922(g)(1). A jury

convicted Workman on both counts, and the district court sentenced him to time served.

       On appeal, Workman alleges that the district court erred in denying his motion for

judgment of acquittal under Fed. R. Crim. P. 29 and his request for a specific unanimity instruction.

He argues that the evidence is insufficient to prove possession because he did not live at the

residence. The evidence at trial, however, clearly demonstrated that Workman lived there and

possessed the firearms and ammunition. As for his jury-instruction challenge, our precedent

squarely forecloses his argument. We find that the district court properly denied his Rule 29

motion and his requested unanimity instruction. Therefore, we affirm his convictions.
No. 17-4294, United States v. Workman


                                                         I.

        On September 30, 2013, police officers obtained a search warrant for Workman’s residence

as part of an unrelated investigation. Officers verified where Workman lived by consulting

numerous records and databases,1 all of which indicated Workman’s residence as 7240 State Route

219, Celina, Ohio. At that address, officers found a house and a workshop used as a mixed martial

arts gym and office.

        The officers first searched the workshop. In the office, they found numerous personal items

and documents belonging to Workman, including photos, a birth certificate, business licenses, and

personal checks. The licenses and checks identified Workman’s official address as 7240 State

Route 219. In and around Workman’s office desk, officers discovered two magazine clips, two

boxes of Winchester .410 shotgun shells, 16 rounds of .45 caliber ammunition, and a jar full of

.22 caliber ammunition. The officers found nothing of evidentiary value in the adjacent gym.

        Officers then searched Workman’s house, where they found more of Workman’s personal

items such as clothing, photos, hygiene products, checkbooks, and legal documents. In the living

room, officers found a Taurus “Judge” model revolver capable of shooting both .410 and

.45 caliber ammunition, and in the kitchen, they discovered a loaded .17 caliber Taurus “Tracker”

model revolver. In Workman’s bedroom, they found a Taurus gun box and a Bighorn gun safe.

Inside the safe were four firearms: 12 gauge Remington “870” model shotgun, .22 caliber

Companhia Braziliera De Cartuchoes “715T” model rifle, 20 gauge Savage “Hiawatha” model

shotgun, and 20 gauge H&R “Pardner Pump” model shotgun.                            Officers also found more



         1
           The officers searched the police department’s master name index, Ohio Law Enforcement Gateway, Law
Enforcement Automated Data System, Mercer County Auditor’s property records, and Ohio Bureau of Motor
Vehicles. Additionally, Workman owned five commercial trucks, one passenger vehicle, one motorcycle, and one
recreational vehicle, all of which had certificates of registration indicating Workman’s address as 7240 State Route
219, Celina, Ohio. Workman’s business—Workman Plumbing, Gas Line Services LLC—was registered with the
Secretary of State under the same address.

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No. 17-4294, United States v. Workman


ammunition, Workman’s Social Security card, titles to Workman’s vehicles, insurance papers in

Workman’s name, and a lease purporting to rent the house to Workman’s ex-girlfriend, Amanda

On.2

        Workman denied living inside the house or that any of the personal items were his. He

claimed that, at the time of the search, he was living in a camper nearby and had been for ten

months. Officers noted during their search, however, that the camper appeared unoccupied.

According to On, Workman would only sleep in the camper occasionally and would still shower

and dress in their house on those occasions. On testified that, while they were not dating at the

time, Workman stayed overnight at the house three to four times per week. She confirmed that

the men’s clothing and other personal items found in the house were Workman’s.

        The government conducted a DNA analysis of the firearms.                        The results excluded

Workman on one but neither excluded nor included Workman on the others. A forensic scientist

testified, however, that cleaning the guns could have removed Workman’s DNA from them.

        Workman denied handling or shooting the guns, but witnesses and phone data established

that Workman handled, cleaned, shot, and stored the guns and purchased the ammunition. On

testified that Workman shot his guns on their property and stored them in the safe and kitchen

drawer.

        While On purchased five of the six guns seized, she did so in Workman’s presence and

upon his advice. On these occasions and others, On also purchased ammunition for Workman.

On stated that another gun, the .17 caliber Taurus “Tracker” model revolver, was given to

Workman by Mike Wessel during a trip to Arkansas in the summer of 2013. Wessel, a mixed



        2
          On lived at the house with Workman. On testified that the purported rental agreement was actually for the
protection of herself and their son in case “things went bad between” Workman and On. DE 138, Trial Tr. Vol. 1,
Page ID 1143.

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No. 17-4294, United States v. Workman


martial arts fighter who previously trained with Workman, confirmed that he gifted the .17 caliber

handgun to Workman during that trip. Wessel also testified that, on this same trip, he saw

Workman purchase ammunition.

        A data extraction on Workman’s cell phone revealed a number of messages discussing

guns and ammunition. On identified text messages between Workman and herself in which

Workman told her he was “shooting with Scott” and “if [the sale] would have been on guns we

would have went.” DE 138, Trial Tr. Vol. 1, Page ID 1138–41; Gov’t Ex. 71.2. A message dated

June 2, 2013 was sent to Mike Wessel and said “thanks for the gun.” DE 139, Trial Tr. Vol. 2,

Page ID 1276; Gov’t Ex. 71.4. That same day, a message was also sent from Workman to a contact

named “J. Brawn,” which said “I’ve got a .17 gun” and subsequently clarified it as a “Taurus.” Id.

at 1276–77; Gov’t Ex. 71.3.

        On April 2, 2014, Workman was indicted in the Northern District of Ohio for being a felon

in possession of a firearm (Count 1) and ammunition (Count 2) in violation of 18 U.S.C.

§ 922(g)(1) on or about September 30, 2013. At trial, Workman made a Rule 29 motion for

judgment of acquittal at the close of the government’s evidence. Finding “ample evidence to

convict in light of [the] elements,” the district court denied Workman’s motion. DE 139, Trial Tr.

Vol. 2, Page ID 1300. The district court later denied Workman’s renewed motion for judgment of

acquittal at the close of all the evidence.

        Workman also moved to exclude a proposed jury instruction regarding unanimity, which

would instruct the jury that it need not unanimously agree upon which firearm(s) and ammunition

Workman possessed.        Instead, Workman asked the court to instruct the jury that it must

unanimously agree as to the firearm(s) and ammunition at issue. The district court denied

Workman’s motion.



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No. 17-4294, United States v. Workman


        The jury found Workman guilty on both counts, and the district court sentenced him to

time served.3 Workman appealed his convictions.

                                                      II.

                                                      A.

        Workman challenges the sufficiency of the evidence on his convictions for being a felon

in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1). This court reviews

sufficiency-of-the-evidence challenges to a criminal conviction de novo.                    United States v.

Robinson, 813 F.3d 251, 255 (6th Cir. 2016). However, “[a] defendant claiming insufficiency of

the evidence bears a very heavy burden.” United States v. Graham, 622 F.3d 445, 448 (6th Cir.

2010) (quoting United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006)). Indeed, there is a

“strong presumption in favor of sustaining a jury conviction.” United States v. Peters, 15 F.3d

540, 544 (6th Cir. 1994). In reviewing a sufficiency-of-the-evidence challenge, the test is

“whether, after viewing the evidence in a light most favorable to the government, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” United

States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007) (citations omitted). See also Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

        “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need

not remove every reasonable hypothesis except that of guilt.” United States v. Blackwell, 459 F.3d

739, 760 (6th Cir. 2006) (quoting United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)).

In reviewing the sufficiency of the evidence, however, this court “must not ‘allow the jury's

discrediting of the defendant's testimony to make up for a shortfall in the sufficiency of the

government's evidence.’” United States v. Bailey, 553 F.3d 940, 946 (6th Cir. 2009) (quoting


        3
            Contemporaneous with the district court proceedings, Workman faced a 40-year prison sentence in Ohio
for state crimes. He is now serving that term.

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No. 17-4294, United States v. Workman


United States v. Toms, 136 F.3d 176, 182 (D.C. Cir. 1998)). At the same time, this court cannot

itself reweigh the evidence or witness credibility, nor can it substitute its own judgment for the

jury’s. Graham, 622 F.3d at 448.

       A conviction for being a felon in possession of a firearm or ammunition requires the

government to prove the following: (1) at the time of the offense, the defendant previously had

been convicted of a felony offense punishable by imprisonment for more than one year; (2) the

defendant knowingly possessed a firearm or ammunition; and (3) the firearm or ammunition

previously had been shipped or transported in interstate commerce. 18 U.S.C. § 922(g)(1). The

parties stipulated to the first and third elements. Workman’s only challenge to the sufficiency of

the evidence, then, concerns the second element.

                                                B.

       Workman argues that the evidence is insufficient to prove he was in possession of the

firearms and ammunition. Workman’s possession could have been actual or constructive. “Actual

or constructive possession is sufficient to give rise to criminal liability under § 922(g).” United

States v. Davis, 577 F.3d 660, 671 (6th Cir. 2009) (quoting United States v. Schreane, 331 F.3d

548, 560 (6th Cir. 2003)). Both may be proven by circumstantial evidence. Id.

       Actual Possession. When the defendant “knowingly has direct physical control over a

thing at a given time,” actual possession exists. Bailey, 553 F.3d at 944 (quoting United States v.

Frederick, 406 F.3d 754, 765 (6th Cir. 2005)). As such, the government must present evidence

that a firearm or ammunition was in the defendant’s “immediate possession or control.” United

States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007) (quoting United States v. Craven, 478 F.2d

1329, 1333 (6th Cir. 1973)). For example, we have found no actual possession where a defendant




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No. 17-4294, United States v. Workman


did not have a gun on his person at the time of arrest and was not seen holding a gun before he was

arrested. Bailey, 553 F.3d at 944.

       When the police searched Workman’s house and workshop, Workman had already been

arrested elsewhere on other charges. The officers, then, did not find the firearms and ammunition

on or near Workman at the time of arrest. Perhaps the other evidence presented persuaded the jury

that Workman was in actual possession. Perhaps not. As noted above, however, actual possession

is not necessary when constructive possession can be shown.

       Constructive Possession. Constructive possession “exists when a person does not have

actual possession but instead knowingly has the power and the intention at a given time to exercise

dominion and control over an object, either directly or through others.” United States v. Hadley,

431 F.3d 484, 507 (6th Cir. 2005) (quoting United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.

1998)). “Proof that the person has dominion over the premises where the firearm is located is

sufficient to establish constructive possession.” Kincaide, 145 F.3d at 782 (internal quotation

marks and citation omitted). Further, “a jury generally ‘is entitled to infer that a person exercises

constructive possession over items found in his home.’” United States v. Tyus, 379 F. App’x 450,

452 (6th Cir. 2010) (quoting United States v. Hill, 142 F.3d 305, 312 (6th Cir. 1998)).

       Thus, whether Workman was in constructive possession of the six firearms and

ammunition found at 7240 State Route 219 depends largely on whether that was “his home” and

whether he had “dominion over” the house and workshop. See id.; Kincaide, 145 F.3d at 782.

Various official records, licenses, and databases listed 7240 State Route 219 as Workman’s

personal and business address. In addition, the house and office area of the shop contained

Workman’s personal items, such as clothing, photos, legal documents, checkbooks, birth

certificate, and Social Security card. While Workman denied living in the house and claimed



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No. 17-4294, United States v. Workman


others used his office, On’s testimony made clear that Workman stayed in the house at least three

to four days per week and that he operated his businesses out of the office. There is ample evidence

for a reasonable juror to conclude that Workman lived, worked, and indeed had dominion over the

house and office.

       Workman maintains on appeal that On lived in the house and owned the firearms. The

theory of joint constructive possession, the government’s stated theory at trial, makes clear that

constructive possession does not require exclusivity or ownership. See Hadley, 431 F.3d at 507

(noting that joint, nonexclusive possession is sufficient); United States v. Saikaly, 207 F.3d 363,

368 (6th Cir. 2000) (noting that ownership “is irrelevant” to the issue of possession). Despite the

purported lease and On’s purchase of five of the six firearms, the evidence clearly indicates that

Workman, at a minimum, lived at his house part-time with On and had joint control over the items

found therein, including the firearms and ammunition. Thus, a reasonable juror could have found

Workman in constructive possession.

       Workman further argues that even if he did handle or shoot the firearms earlier in 2013—

evidenced by the text messages and trial testimony—such instances are too remote to qualify as

“[o]n or about September 30, 2013,” as alleged in the indictment. DE 1, Indictment, Page ID 1–

2. But Workman’s argument confuses the tests and proof requirements for actual and constructive

possession. Because the evidence is sufficient to prove constructive possession, the timing of

previous instances of actual possession is irrelevant.

       Lastly, Workman argues that the evidence was insufficient to prove he had the requisite

intent to be convicted. While “[t]he charge of being a felon in possession of a firearm generally

does not require proof of intent,” Workman is correct in that the theory of constructive possession

“does require specific intent.” United States v. Newsom, 452 F.3d 593, 606 (6th Cir. 2006). This



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No. 17-4294, United States v. Workman


specific intent must be to “exercise dominion and control over an object, either directly or through

others.” Hadley, 431 F.3d at 507 (quoting Kincaide, 145 F.3d at 782). Based on the evidence

presented, a reasonable juror could have inferred Workman’s specific intent to exercise dominion

and control over the firearms and ammunition, either directly or through On and others.

       Viewing the evidence in the light most favorable to the government and drawing all

inferences in favor of the jury’s verdict, a reasonable juror could have found that Workman

possessed a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Workman failed to

meet his burden of showing insufficiency of the evidence.

                                                III.

                                                 A.

       Workman argues that he was entitled to a specific jury instruction that would require the

jurors to unanimously agree upon which firearm(s) and ammunition he possessed. This court

“review[s] challenges to a jury instruction for an abuse of discretion.” United States v. Mitchell,

681 F.3d 867, 876 (6th Cir. 2012) (citing United States v. Williams, 612 F.3d 500, 506 (6th Cir.

2010)). The district court “has broad discretion in crafting jury instructions and does not abuse its

discretion unless the jury charge ‘fails accurately to reflect the law.’” United States v. Ross, 502

F.3d 521, 527 (6th Cir. 2007) (quoting United States v. Layne, 192 F.3d 556, 574 (6th Cir. 1999)).

“An improper instruction requires reversal of the judgment ‘only if the instructions, viewed as a

whole, were confusing, misleading, or prejudicial.’” Mitchell, 681 F.3d at 876 (quoting United

States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008)).

                                                 B.

       In the final charge, the district court instructed the jury that it “need not unanimously agree

as to which firearm [or ammunition] you individually find beyond a reasonable doubt [Workman]



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No. 17-4294, United States v. Workman


possessed.” DE 140, Trial Tr. Vol. 3, Page ID 1422. The district court clarified that each juror

must find beyond a reasonable doubt that Workman possessed “at least a firearm” to find him

guilty on Count 1 and “at least one of the quantities of ammunition” to find him guilty on Count

2. Id. Workman’s proposed alternative instruction would have required each juror to agree with

all others as to the “same means or methods alleged in the indictment,” or which firearm(s) or

ammunition Workman specifically possessed. DE 95-1, Proposed Instr., Page ID 524.

        In United States v. DeJohn, we held “that the particular firearm possessed is not an element

of the crime under § 922(g), but instead the means used to satisfy the element of any firearm.”

368 F.3d 533, 542 (6th Cir. 2004) (internal quotation marks omitted). We noted that “no unanimity

instruction is required where multiple firearms charged in a single count were discovered as part

of the same transaction.” Id. at 540. Such an instruction may be “required only where ‘a genuine

risk [exists] that the jury is confused or that a conviction may occur as the result of different jurors

concluding that a defendant committed different acts.’” Id. (alteration in original) (quoting United

States v. Sims, 975 F.2d 1225, 1241 (6th Cir. 1992)). Whether this risk exists is the “touchstone”

of the unanimity-instruction analysis. Sims, 975 F.2d at 1240–41.

        Workman argues that “different jurors could and likely did believe that the evidence led to

different conclusions” regarding which firearm(s) and ammunition he possessed. CA6 R. 29,

Appellant Br., at 24. But DeJohn requires the jury to unanimously agree upon the act by which

the defendant possesses “any firearm,” not which firearm of several was possessed. 368 F.3d at

542. The evidence presented at trial was such that a reasonable juror could find that Workman

lived and exercised control over the house and shop, establishing constructive possession. All that

was required to satisfy the second element of § 922(g)(1), then, was that Workman’s constructive

possession—the act—extended to any firearm or ammunition listed in the indictment. As such,



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No. 17-4294, United States v. Workman


there was no risk a conviction would result from different jurors concluding that Workman

committed different acts when the “act” necessary for conviction was possession of “any” firearm

or ammunition.

       We conclude that the district court did not abuse its discretion in instructing the jury.

                                                IV.

       For the foregoing reasons, we affirm Workman’s convictions for being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).




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