United States of America v. Theodore Watkins, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 23-2598
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United States of America
Plaintiff - Appellee
v.
Theodore Watkins, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri
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Submitted: November 22, 2024
Filed: February 10, 2025
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Theodore Watkins, Jr., challenges his 18 U.S.C. § 922(g)(1) conviction,
claiming the district court1 erred by admitting unnoticed expert testimony and
because his trial counsel was ineffective. We conclude the challenged testimony
1 The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

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was proper lay opinion testimony and decline to review his ineffective assistance of
counsel claim in this direct appeal. We therefore affirm his conviction.
I. Background
In 2022, Watkins went to the home of an eighty-two-year-old woman and
asked her if she would hire him to mow her grass. After the homeowner declined,
Watkins left and returned with a handgun. When the homeowner opened her door,
Watkins slammed the door into her, pointed the firearm at her, and demanded
money. He pocketed two twenty-dollar bills from her purse and ordered her around
the home for the next thirty to forty-five minutes while he searched for valuables.
Meanwhile, a neighbor who had seen Watkins force entry into the home
contacted law enforcement. Officers soon arrived on the scene and surrounded the
home. Watkins then attempted to conceal his crime. He told the homeowner to tell
law enforcement that he was a friend doing work for her. He also asked for a
screwdriver. Soon after that request, the homeowner “heard a noise in [her] front
bedroom” followed by a “thunk.” She recognized the initial noise as a unique
squeaking sound the return vent cover to her furnace made when removed, and so
she believed Watkins had removed the cover and dropped the firearm into the vent.
Eventually, law enforcement ordered everyone to evacuate the home, and both
Watkins and the homeowner exited.
Officers searched Watkins but found no firearm. Based on the homeowner’s
statements that she believed Watkins had placed the weapon in a vent, Sergeant Jeff
Pagel of the Independence, Missouri, Police Department “removed every vent in the
entire house that [he] found with a screwdriver.” At each vent, Sergeant Pagel
peered inside to look for a gun. When he checked the return air vent in the front
bedroom, he noticed it had an air filter about a foot from the vent cover. He reached
inside to manipulate the air filter, “[a]nd as soon as [he] touched it, [he] heard a loud
bang.” Believing the sound was the firearm falling into the furnace, Sergeant Pagel
went to the garage where the furnace was located, removed panels from the furnace,

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and spotted the barrel of a gun sticking up. Once he removed additional panels, he
retrieved the firearm.
At trial, Sergeant Pagel testified he could look through the furnace’s opening
for the air filter to see the return air vent leading to the bedroom. He further
explained he did not believe the firearm could have entered the furnace without
disassembling the furnace or removing several pieces of ductwork except if it was
placed there through the bedroom vent. Watkins’s trial counsel then asked Sergeant
Pagel whether he had any specialized training or knowledge in furnace repair or
maintenance. Sergeant Pagel stated he had no such training, but on redirect, the
government elicited testimony about his experience in construction. Sergeant Pagel
explained he had a construction business and built homes so he “had a lot of
experience with minor issues with furnaces” and “kn[ew his] way around the
furnace.” He then reiterated his opinion that “[t]he easiest, quickest way” to place a
firearm inside the furnace was to send it through the bedroom vent and that, without
leaving the home to enter the garage, a person could not place a gun inside the
furnace except through the bedroom vent.
Watkins objected to Sergeant Pagel’s testimony on redirect as unnoticed
expert testimony because the government had never disclosed him as a construction
or furnace expert. The district court overruled this objection, and the jury ultimately
found Watkins guilty of unlawfully possessing a firearm as a felon. The district
court sentenced him to 120 months of imprisonment. On appeal, Watkins asserts
that the district court abused its discretion by admitting Sergeant Pagel’s redirect
testimony and that his trial counsel was ineffective by failing to request a
continuance or another remedy as an alternative to excluding the testimony.
II. Analysis
Starting with Watkins’s challenge to Sergeant Pagel’s redirect testimony, we
find no abuse of discretion by the district court. See United States v. Mackey, 83
F.4th 672, 676 (8th Cir. 2023) (standard of review). Upon the defendant’s request,

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the government must disclose prior to trial any expert witness testimony it plans to
admit. See Fed. R. Crim. P. 16(a)(1)(G). We conclude Sergeant Pagel did not
provide expert testimony, so Rule 16’s disclosure requirement was inapplicable.
We determine whether a witness is offering expert or lay opinion testimony
by considering both the witness and his opinion. United States v. Mast, 999 F.3d
1107, 1112 (8th Cir. 2021). Proper “lay testimony must be (1) ‘rationally based on
the witness’s perception,’ (2) ‘helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,’ and (3) ‘not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.’” Id.
(quoting Fed. R. Evid. 701). A witness’s “professional training and experience”
concerning a subject “d[oes] not, standing alone, render [his] testimony about [that
subject] expert testimony.” Id. If a witness’s testimony is limited to “firsthand
knowledge and personal experience,” it is permissible lay testimony. See id.; United
States v. Smith, 591 F.3d 974, 983 (8th Cir. 2010).
Sergeant Pagel’s challenged testimony was based on his firsthand knowledge
of the vent, furnace, and the firearm’s location, derived from his personal
examination at the home during his search for the weapon. He personally
maneuvered the furnace air filter, heard a sound he believed was the weapon falling,
opened the furnace’s panels, and removed the weapon. He observed that there was
no other path to place something inside the furnace besides entering the garage and
removing the panels or passing something through the vent. In light of this personal
knowledge, Sergeant Pagel offered two opinions in his redirect testimony: (1) that
the easiest way to place the firearm inside of the furnace was through the vent, as
the homeowner claimed Watkins had done; and (2) that passing the firearm through
the vent was the only way to place it in the furnace without leaving the home and
entering the garage. Both opinions were circumscribed to matters within his own
knowledge and experience and did not rely on any specialized training. His
statements about his construction experience and his knowledge of how to remove
furnace panels arose on redirect solely to rehabilitate him after the defense put his
lack of specialized training in furnaces at issue as a reason to discredit his testimony.

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We therefore conclude the district court did not abuse its discretion by admitting this
testimony as a lay opinion.
Watkins next argues his trial counsel was ineffective because he did not
request additional remedies, such as a continuance, to address Sergeant Pagel’s
redirect testimony. In direct appeals, we consider ineffective assistance of counsel
claims “only where the record has been fully developed, where not to act would
amount to a plain miscarriage of justice, or where counsel’s error is readily
apparent.” United States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006).
None of these circumstances are applicable here, so we decline to address this claim
in this appeal.
III. Conclusion
We affirm Watkins’s conviction and decline to review his ineffective
assistance of counsel claim.
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