United States of America v. Earl Tyrone McKee

United States Court of Appeals
For the Eighth Circuit
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No. 21-3346
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United States of America
Plaintiff - Appellee
v.
Earl Tyrone McKee
Defendant - Appellant
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No. 21-3347
___________________________
United States of America
Plaintiff - Appellee
v.
Earl Tyrone McKee
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: May 13, 2022
Filed: August 2, 2022
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Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
After a jury trial before the district court,1 Earl Tyrone McKee was convicted
of one count of being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2). McKee appeals his conviction, arguing that there was
insufficient evidence to support the jury’s finding that he knowingly possessed a
firearm. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Shortly after midnight on August 30, 2020, Iowa City Police Department
(ICPD) officers were dispatched to the Town and Campus Apartments complex after
several people reported hearing gunshots. At the time ICPD Officer James Sandifer
became aware of the shots-fired reports coming from Town and Campus, he was at
the University of Iowa Hospitals and Clinics in Iowa City tending to a prior,
unrelated matter. Officer Sandifer was familiar with and had access to video feeds
from the security cameras at Town and Campus because property management had
previously consulted him regarding the installation of the security cameras at the
property. Officer Sandifer accessed the security cameras’ video feeds using his
smartphone, which depicted a dispute that broke out on the property shortly before
midnight outside of the H building. During the dispute, a male subject with long
dreadlocks wearing skinny jeans and white sneakers, later identified as McKee, ran
up the exterior staircase of the H building to Apartment H6, retrieved a large firearm
that resembled a rifle, and ran back down to the first level of the complex where he
took a firing stance before running off camera. Later, ICPD officers who responded
to the shots-fired reports located a cluster of ten shell casings near the area where
McKee ran off camera. Shortly after McKee disappeared off camera, Officer
1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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Sandifer observed McKee reappear and run back to the H building and enter
Apartment H6 with the firearm before exiting Apartment H6 without the firearm and
running towards the P building and into Apartment P4. Officer Sandifer shared this
information with his fellow officers over the radio.
Based upon the information provided by Officer Sandifer and their own
review of the security camera footage, ICPD officers believed that the firearm
involved in the shooting was inside Apartment H6 and the man who shot the firearm,
McKee, was inside Apartment P4. Officers then posted themselves outside of
Apartments H6 and P4 to ensure that the firearm and McKee, respectively, did not
leave those apartments. Officer Traishondus Bunch reviewed the security camera
footage from nearly midnight until the time officers set up a perimeter outside of
Apartment P4 and observed only McKee enter the apartment. While posted at the
front door of Apartment P4, Officer Daniel Boesen interacted with the resident of
Apartment P4, who then entered the apartment. When the resident later left the
apartment, he was detained by Officer Boesen, and he told Officer Boesen that there
was one other person still in the apartment.
Officers obtained search warrants for Apartments H6 and P4 approximately
four hours after responding to the shots-fired reports. Officers executed the search
warrant for Apartment H6 first and located a firearm in a blue cooler bag in the
furnace closet of the apartment. Testing later confirmed that the ten shell casings
found in the area where McKee disappeared off camera were fired from this same
firearm. When officers executed the search warrant for Apartment P4, they found
only McKee inside the apartment.
On October 7, 2020, McKee was indicted on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). McKee
pled not guilty and was tried by a jury over three days. At trial, the parties stipulated
that the firearm found in Apartment H6 met the federal definition of a firearm and
had been transported across a state line, McKee had been previously convicted of a
crime punishable by a term of imprisonment exceeding one year, and McKee knew

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that he had been previously convicted of a crime punishable by a term of
imprisonment exceeding one year. The government presented numerous exhibits,
including the aforementioned security camera footage, and called ten witnesses.
Among the government’s witnesses was James Joy, who was identified by officers
as the intended target of the shooting. At the time Joy testified, he was in custody
and awaiting trial and appeared pursuant to a writ ordering him to appear for
testimony. Joy testified that, shortly after he arrived at Town and Campus, a group
of people approached him about a prior incident that he was involved in. Joy then
testified that he walked away from the group and had begun conversing with a man
that he knew when someone ran past him and up the stairs. Joy stated that he looked
up and saw another man that he knew pass something that “looked like a pole” to
the man that ran up the stairs and, when the man came back down the stairs, he
realized that the object was a gun. Joy further testified that the man pointed the gun
at him and eventually fired shots at him. Joy was shown the firearm recovered from
Apartment H6 and testified that it looked like the gun that the man was carrying and
subsequently fired at him. When asked to identify who the man was, Joy identified
McKee. On cross-examination, Joy was confronted with a statement that he gave to
law enforcement on September 23, 2020, identifying the shooter from the August
30th incident as a different individual named “Twan.” Joy testified that he had lied
to law enforcement and McKee was the one who shot at him.
At the close of the government’s case, McKee moved for a judgment of
acquittal, arguing that the evidence was insufficient to demonstrate that he was in
actual or constructive possession of the firearm. The district court denied McKee’s
motion, and ultimately, the jury found McKee guilty. The district court sentenced
McKee to 120 months imprisonment and 3 years supervised release and revoked the
supervised release that McKee was serving on a separate conviction, sentencing him
to a consecutive 24 months imprisonment. McKee appeals only his conviction on
the firearm charge.

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II.
McKee challenges the sufficiency of the evidence to support his conviction,
arguing that the government failed to prove that it was McKee who possessed the
firearm used in the August 30th shooting. “We review the sufficiency of the
evidence de novo, considering the evidence in the light most favorable to the
government and drawing all reasonable inferences in favor of the verdict.” United
States v. Carnes, 22 F.4th 743, 748 (8th Cir. 2022) (citation omitted). “We will
reverse ‘only if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt.’” United States v. Gross, 23 F.4th 1048, 1052 (8th Cir. 2022)
(citation omitted).
Sufficiency review essentially addresses whether “the government’s
case was so lacking that it should not have even been submitted to the
jury.” That limited review does not intrude on the jury’s role “to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.”
United States v. Bull, 8 F.4th 762, 770 (8th Cir. 2021) (citations omitted).
To support a conviction under 18 U.S.C. § 922(g)(1),
the government must prove beyond a reasonable doubt that (1)
[McKee] had been previously convicted of a crime punishable by a term
of imprisonment exceeding one year; (2) [McKee] knowingly
possessed a firearm; (3) the firearm was in or affecting interstate
commerce; and (4) [McKee] “knew he belonged to the relevant
category of persons barred from possessing a firearm.”
United States v. Burning Breast, 8 F.4th 808, 812 (8th Cir. 2021) (citation omitted).
McKee stipulated to elements 1, 3, and 4 and challenges only the sufficiency of the
evidence to support element 2: whether he knowingly possessed a firearm. McKee
argues that the evidence is insufficient to sustain his conviction because officers did
not immediately establish a perimeter around Apartment P4 and it is possible that

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the shooter seen running from Apartment H6 and into Apartment P4 could have
exited out the back door of Apartment P4, jumped 10 to 12 feet to the ground from
the balcony, which was not covered by security cameras, and escaped; McKee’s
physical description was not uncommon and Officer Sandifer’s identification of him
on the security camera footage should be disregarded; Joy’s testimony was
inconsistent with his prior statement and should be disregarded; and there is no
security camera footage showing McKee leaving Apartment P4 and moving towards
the H building prior to the shooting. We disagree.
The government presented sufficient evidence to prove that McKee
knowingly possessed the firearm in question. The government presented security
camera footage showing a man retrieving a firearm from Apartment H6, running
down the exterior staircase of the H building with the firearm and taking a firing
stance, returning to Apartment H6 and depositing the firearm, and running to
Apartment P4. Officers recovered the firearm from Apartment H6 and shell casings
from the area where the man briefly disappeared off camera while carrying the
firearm, which testing later showed were fired from that same firearm. Security
camera footage showed that McKee was the only person, besides the resident of the
apartment, who entered Apartment P4 between the time of the shooting and the time
officers were posted outside of the apartment, and it is inconsequential whether
McKee left Apartment P4 before the shooting. Further, the intended target of the
shooting, Joy, testified that it was McKee who shot at him. To the extent that McKee
asks us to weigh evidence or witness credibility, specifically Joy’s testimony, we
note that such “jury determinations are ‘virtually unreviewable on appeal.’” See
United States v. Hollingshed, 940 F.3d 410, 417 (8th Cir. 2019) (citation omitted);
see also United States v. Spight, 817 F.3d 1099, 1102 (8th Cir. 2016) (“[I]n
‘[r]eviewing the sufficiency of the evidence, it is axiomatic that [this court does] not
pass upon the credibility of witnesses or the weight to be given their testimony’
because ‘[c]redibility determinations are uniquely within the province of the trier of
fact, and are entitled to special deference.” (second, third, and fourth alterations in
original) (citation omitted)). McKee was able to cross-examine Joy regarding
inconsistencies between his prior statement to law enforcement and testimony at

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trial, and McKee makes no showing that the jury’s credibility determination was
“internally inconsistent, based upon incoherent or implausible testimony, or directly
at odds with objective evidence.” See United States v. Hodge, 594 F.3d 614, 618
(8th Cir. 2010). Based on this evidence, a reasonable jury could have found that
McKee knowingly possessed the firearm found in Apartment H6 on August 30th.
Thus, we find the evidence sufficient to sustain McKee’s conviction.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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