                Case: 17-12697   Date Filed: 07/13/2018   Page: 1 of 8


                                                             [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 17-12697
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 1:16-cr-00074-WSD-JFK-1

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

versus

JOSHUA DAVIS,

                                                              Defendant-Appellant.

                            ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                   (July 13, 2018)

Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.

PER CURIAM:

         Joshua Davis, a former armored truck driver for Brinks, Inc., appeals his

convictions and sentences for theft in violation of 18 U.S.C. § 2113(b) and

possession of stolen funds in violation of 18 U.S.C. § 2113(c). On appeal, he
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argues that: (1) the district court erred by admitting the out-of-court statements of

his wife in violation of the Sixth Amendment’s Confrontation Clause; and (2) the

district court erred in applying a sentencing enhancement for possession of a

firearm in connection with his offense. After careful review, we affirm.

      We review evidentiary rulings for abuse of discretion, but review challenges

to the admission of testimonial hearsay statements under the Confrontation Clause

de novo. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). We

review the district court’s factual findings for clear error, and review de novo its

application of the law to those facts, including its interpretation and application of

the U.S. Sentencing Guidelines. United States v. Johnson, 694 F.3d 1192, 1195

(11th Cir. 2012). We’ve held that, if the district court has been apprised of an

issue, considers its merits, and then issues a definitive ruling, it was properly

preserved. See United States v. Lall, 607 F.3d 1277, 1290 (11th Cir. 2010).

      First, we are unpersuaded by Davis’s claim that the district court erred by

admitting the out-of-court statements of his wife, Philicia Morris.        The Sixth

Amendment guarantees a defendant the right to be confronted with the witnesses

against him. U.S. Const. amend. VI. The Confrontation Clause prohibits the

admission of out-of-court statements that are testimonial unless the declarant is

unavailable and the defendant had a previous opportunity to cross-examine the

declarant. Crawford v. Washington, 541 U.S. 36 (2004). However, “if a trial court


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admits a statement, made by an available declarant whom the defendant has not

had the opportunity to cross-examine, for a purpose other than for the truth of the

matter asserted, the admissibility of that statement does not violate the

Confrontation Clause.” United States v. Jiminez, 564 F.3d 1280, 1287 (11th Cir.

2009); see also Crawford, 541 U.S. at 59 n.9 (holding that the Confrontation

Clause “does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted”). “Testimonial” means statements

which are usually solemn declarations made for the purpose of establishing some

fact. Crawford, 541 U.S. at 51. “Hearsay” refers to an out-of-court statement

offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c).

      We’ve held that statements made by out-of-court witnesses to law

enforcement may be admitted as non-hearsay if they are relevant to explain the

course of the official’s subsequent investigative actions, and the probative value of

the evidence’s non-hearsay purpose is not substantially outweighed by the danger

of unfair prejudice caused by the impermissible hearsay use of the statement.

United States v. Hawkins, 905 F.2d 1489, 1495 (11th Cir. 1990); United States v.

Ransfer, 749 F.3d 914, 925 (11th Cir. 2014). “It is the existence of the statement,

not its veracity, that provides the explanation, and thus there is no reason to think

about its admissibility in Confrontation Clause terms.” Jiminez, 564 F.3d at 1287.




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       Alleged violations of the Confrontation Clause are subject to harmless error

review. United States v. Carter, 776 F.3d 1309, 1328 (11th Cir. 2015). Hearsay

errors are harmless “if, viewing the proceedings in their entirety, a court

determines that the error did not affect the verdict, or had but very slight effect.”

Id. (quotation omitted). In other words, harmless error occurs where it is clear

beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained. Id. Further, a jury is free to disbelieve a defendant’s testimony

and consider it substantive evidence of his guilt. United States v. Rivera, 780 F.3d

1084, 1098 (11th Cir. 2015).

       Reviewing the issue de novo, 1 we conclude that the district court did not err

in admitting Morris’s statements. According to the evidence admitted at trial, the

theft occurred on the evening of October 15, 2015, when Davis’s Brinks truck had

run out of gas after a full day of servicing ATMs. While he and his co-worker,

Naheem Carrington, waited for a tow truck, Morris (Davis’s then-girlfriend and

later, wife) had arrived to get them food, and Davis had taken a black bag into

Morris’s car and left. A bystander had seen Davis and called police, and upon their

arrival, Carrington called Davis to return to the truck and mentioned money and a

black bag. When Davis returned, the police searched Davis’s black bag and found


1
        While the government argues that Davis failed to preserve his Confrontation Clause
challenge below because he only objected to his wife’s testimony on hearsay grounds, the district
court preserved the issue by delivering a definitive decision. Lall, 607 F.3d at 1290.
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only his employee firearm. After money was discovered missing from the ATMs

and an investigation ensued, Davis initially denied to law enforcement officers that

he had stolen anything. Morris was later interviewed, and she admitted that on the

night in question, she had overheard Carrington mention a black bag on the phone,

and in response to her questions, Davis had admitted to her that he had brought

money into her car, she had “freaked out,” she had told Davis to get the money out

of her car, and Davis had stuffed the money into a pink bag and threw it out the

window. Then, in a follow-up interview, Davis admitted that he had stolen money

that evening, had dumped most of it out of Morris’s car and into a vacant lot, and

had returned to the lot but was unable to recover the money. Davis also admitted

that he had taken some money from the bag before he threw it, and eventually gave

to police $3,200 in $20 bills he had stored in his closet. On direct examination at

trial, however, Davis denied taking any money from the ATMs in an unauthorized

manner. On cross-examination, Davis conceded that the money he had returned to

the FBI contained only $20 bills, but he argued that the money had come from

side-jobs. An agent testified the bills were consistent with what would be issued

from an ATM in that they were not crumpled or folded.

      On this record, Morris’s statements to law enforcement were not hearsay

admitted in violation of the Confrontation Clause because the government did not

introduce her statements to prove the truth of the matter asserted. Jiminez, 564


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F.3d at 1287. Rather, they were admitted for the limited purpose of explaining

subsequent events. For example, Morris’s command that Davis get the stolen

money out of her car explained why he looked for somewhere to throw the money

while she was driving and why he threw the money out the window.              They

clarified why Davis did not have money in his bag when police searched it and the

car after he returned to the Brinks truck. They also explained why, after Morris

told law enforcement details about the theft, officers re-interviewed Davis and why

he changed his story. So while Morris’s statements inculpated Davis in the theft,

they did not amount to hearsay because it did not matter whether those facts were

true. And because they were not hearsay, the district court was allowed to weigh

the danger of unfair prejudice against the probative value of the statements’ non-

hearsay purpose, and acted well within its discretion in admitting the statements.

Hawkins, 905 F.2d at 1495; Ransfer, 749 F.3d at 925.

      Further, even if the court did err, the error was harmless beyond a reasonable

doubt. Carter, 776 F.3d at 1328. The government introduced a substantial amount

of evidence showing that Davis had stolen the money, including his previous

admissions to law enforcement that he had stolen the money and returned some of

it to them, as well as video recordings of Davis servicing the shorted ATMs on the

day they were robbed, an eyewitness account of Davis removing a black bag from

his Brinks truck and placing it into Morris’s car, Davis’s admission on the stand


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that he had given $20 bills to law enforcement, and testimony that the bills were

consistent with ATM money. Moreover, Davis denied taking the money on the

stand, and the jury chose to disbelieve his testimony and may have determined that

it was substantive evidence of his guilt. Rivera, 780 F.3d at 1098. In light of this

evidence, we conclude that it is clear beyond a reasonable doubt that the

introduction of Morris’s statements did not contribute to Davis’s guilty verdict.

Carter, 776 F.3d at 1328. The error, if any, was harmless.

      We likewise reject Davis’s claim that the district court erred in imposing a

sentencing enhancement.     The Sentencing Guidelines provide for a two-level

offense increase if a defendant possessed a dangerous weapon, such as a firearm, in

connection with his offense of conviction. U.S.S.G. § 2B1.1(b)(15)(B). We’ve

held, in certain cases, that mere possession of a firearm during the commission of

an offense can be sufficient to apply a sentencing enhancement. United States v.

Jackson, 276 F.3d 1231, 1234 (11th Cir. 2001) (holding that it would be reasonable

to apply a sentencing enhancement for mere possession “where it is reasonable to

assume that a defendant possesses a firearm, even without using it, to prevent the

theft of counterfeit currency in his possession”). We look at the circumstances

surrounding the offense and firearm possession to assess whether it is reasonable to

infer that the firearm might be used during an offense. See United States v.

McClain, 252 F.3d 1279, 1288 (11th Cir. 2001).


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      In this case, the district court did not err in applying the enhancement nor did

it clearly err in finding that Davis had possessed a firearm in connection with his

offense. Although Davis never used the weapon during the theft, and was required

to wear it as part of his uniform, the district court could and did reasonably infer

that Davis might have used it if defending the money he had stolen had become

necessary at some point. McClain, 252 F.3d at 1288. The fact that Davis took the

gun with him and placed it in the bag containing his stolen money when Morris

picked him up further supports the inference that he carried the weapon in order to

protect the money, because he would have been able to access it if the need had

arisen, and he was no longer on the job at that point. Jackson, 276 F.3d at 1234.

Finally, the plain language of § 2B1.1 suggests that all that is required is that the

firearm be possessed in connection with the offense, and it is undisputed that Davis

had his gun with him all throughout the period in which he robbed the ATMs and

then carried the money away. U.S.S.G. § 2B1.1(b)(15)(B). Accordingly, we

affirm.

      AFFIRMED.




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