The U.S. Court of Appeals for the 10th Circuit upheld the conviction of a man for firearm and drug possession despite his contention that there was insufficient evidence to prove his physical custody of both items.

In April 2018, law enforcement was surveilling a Colorado Springs residence and attempting to locate a male suspect. Two men were inside a Ford Thunderbird parked in front of the house, and the passenger – matching the suspect’s description – exited the vehicle. The driver, Michael Shannon, subsequently got out and then entered a second car that had pulled up to the house.

Officers approached the Thunderbird and saw through the windows small plastic bags and a digital scale on the floor of the driver’s side. They learned afterward that the passenger who exited was a different man than their suspect.

Other officers followed the second car to a neighborhood with a reputation for drug activity, where Shannon exited the vehicle. After talking to a few people there, he began walking back toward the house where he was picked up. An officer stopped Shannon after he appeared to hide something between two vehicles, and discovered a cigarette box on the ground with bags of what appeared to be cocaine. Also on Shannon’s person were a key to the Thunderbird, cash, and a cellphone containing a text message that read “I might need the AR now.”

A search of the Thunderbird recovered the items that police had seen through the window, another cigarette box apparently with cocaine, and an AR-15 semi-automatic rifle. There were also several identification documents belonging to Shannon, although the vehicle’s registration did not show him to be the owner.

Upon trial, a jury convicted Shannon of cocaine possession and possession of a firearm by a felon. While testing showed the cocaine was mixed with methamphetamine, he was acquitted on those charges, as well as others related to the use of a firearm.

Shannon appealed the firearm verdict. Prosecutors argued that there was sufficient evidence to prove “constructive possession,” which occurs when a defendant does not physically possess the weapon but instead has the “power and intent to exercise control over the object.” This is in contrast to “actual possession,” which entails a defendant holding the firearm. In Shannon’s case, the prosecution believed there was a strong case for actual possession, too, but the appeals panel found that claim unnecessary because there was enough proof for conviction on constructive grounds.

Writing for the three-member panel, Judge Jerome A. Holmes explained that the evidence taken together of Shannon’s documents in the car, his possession of the keys, and his presence in the driver’s seat, all “support[ed] a finding of knowledge of the vehicle’s contents, including the firearm.”

Holmes also felt that the text message about “the AR” created a reasonable assumption that the gun in the Thunderbird was the same one referenced in the message. The weapon was loaded and the safety device was off, indicating an intent to use the gun. Therefore, while Holmes cautioned that convictions should not rely upon stacking too many inferences, “Intent is most often established through circumstantial evidence….The jury could reasonably conclude Mr. Shannon had constructive possession of the AR-15.”

Using similar logic, the court also upheld the jury’s conviction for cocaine possession on constructive grounds, despite Shannon’s attempt to dismiss it. Although Shannon claimed that the trial court did not define constructive possession of a firearm for the jury, Holmes pointed out that jurors heard the definition from prosecutors and that there was no precedent requiring such an instruction from a judge.

The case is United States of America v. Michael Shannon.