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United States v. Kolka

United States Court of Appeals, Ninth Circuit
Oct 12, 2022
No. 21-30204 (9th Cir. Oct. 12, 2022)

Opinion

21-30204

10-12-2022

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAYCEE NICOLE KOLKA, Defendant-Appellant.


NOT FOR PUBLICATION

Submitted October 6, 2022 Portland, Oregon

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Appeal from the United States District Court for the District of Montana D.C. No. 1:20-cr-00126-SPW-1 Susan P. Watters, District Judge, Presiding

Before: OWENS and MILLER, Circuit Judges, and PREGERSON, District Judge.

MEMORANDUM [*]

Defendant Kaycee Kolka appeals from her jury conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), for lack of sufficient evidence. Because the parties are familiar with the facts, we do not recount them here. We "review de novo claims of insufficient evidence to support a jury conviction and a district court's denial of a motion for judgment of acquittal." United States v. Charley, 1 F.4th 637, 643 (9th Cir. 2021) (citation omitted). "Evidence supporting a conviction is sufficient if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (citation and quotation marks omitted). We affirm.

The only element of Kolka's conviction that she contests is whether sufficient evidence proved she possessed the firearm after her qualifying felony conviction, in violation of § 922(g)(1). Section 922(g)(1) prohibits constructive possession. Henderson v. United States, 575 U.S. 622, 626 (2015). The evidence adduced at trial showed that Kolka constructively possessed the firearm when she was in the pawn shop because she "ha[d] knowledge of the weapon," had "the power . . . to exercise dominion and control over it," and intended to exercise her power by signing over possession. United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990); see also United States v. Vasquez, 654 F.3d 880, 885 (9th Cir. 2011) (outlining elements of constructive possession). That she did so in an attempt to comply with legal requirements prohibiting her from possessing a firearm does not preclude a jury from determining she possessed the weapon at the pawn shop. See United States v. Johnson, 459 F.3d 990, 998 (9th Cir. 2006) (declining to adopt an "innocent possession defense" to a § 922(g)(1) prosecution).

Viewing the evidence in the light most favorable to the prosecution, Charley, 1 F.4th at 643, the government also showed at trial that Kolka actually possessed the weapon, in violation of § 922(g)(1), before the events at the pawn shop. The jury was not required to believe Kolka's boyfriend's contradictory version of the events. See United States v. Scheffer, 523 U.S. 303, 313 (1998). The jury was also not required to accept Kolka's theory that her "we" statements during the police interview fail to show she possessed the weapon, because the jury was presented with that theory and still voted to convict. See id.

Finally, the government did not err by referencing ownership during its closing arguments. A jury may properly consider ownership as an indicium of constructive possession. See United States v. Frushon, 10 F.3d 663, 665 (9th Cir. 1993); United States v. Barron-Rivera, 922 F.2d 549, 552 (9th Cir. 1991); United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir. 1989).

AFFIRMED.

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation.


Summaries of

United States v. Kolka

United States Court of Appeals, Ninth Circuit
Oct 12, 2022
No. 21-30204 (9th Cir. Oct. 12, 2022)
Case details for

United States v. Kolka

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAYCEE NICOLE KOLKA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 12, 2022

Citations

No. 21-30204 (9th Cir. Oct. 12, 2022)