May 15, 2018
from the United States District Court for the Northern
District of Indiana, Fort Wayne Division. No.
1:16-cr-00055-TLS-SLC-1-Theresa L. Springmann, Chief Judge.
Bauer, Kanne, and Hamilton, Circuit Judges.
Davis was charged with and convicted of two counts of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), arising from two unrelated incidents. Davis
appeals three evidentiary rulings as to testimony from three
witnesses, and argues that the government failed to provide
sufficient evidence to prove Count Two.
One arose from an incident that occurred on July 20, 2016.
Davis drove with his girlfriend, Heather Gaff
("Heather"), to the home of Anthony Wamue and
Jacqueline Gaff ("Jackie"), Davis's
ex-girlfriend and Heather's sister. The visit quickly
resulted in a fight, starting inside the house and then
moving to the backyard; the fight involved Davis, Jackie, and
Wamue. Police were called and arrived shortly after and found
a firearm lying on the curb outside the house.
theory at trial was that the gun was Jackie's or
Wamue's, both convicted felons, who set up Davis knowing
they would face the same charges if the gun was found to be
theirs. The government presented evidence to prove that Davis
brought the gun to the house. On appeal from the conviction
on Count One, Davis objects to testimony from Officer Matthew
Cline, one of the responding police officers, as to prior
consistent statements made by Jackie and Wamue on the day of
the incident, and testimony from Davis's six-year-old
the police arrived, Jackie and Wamue recounted the
altercation to Officer Cline. At trial, the government called
Jackie to testify, but during cross-examination, she could
not recall many of the details of the incident. Later in the
trial, the government called Officer Cline to testify about
incriminating statements made by Jackie and Wamue against
Davis on the day of the incident. No objection was made to
government also called C.D., Davis's six-year-old
daughter, to testify at trial. Prior to trial, Davis filed a
motion under 18 U.S.C. § 3509(c) requesting that the
district court hold a child competency hearing before
allowing C.D. to testify. The court agreed and questioned
C.D. outside the presence of the jury regarding her ability
to distinguish truth and falsehood. After this questioning,
defense counsel agreed that C.D. was competent and did not
object to her testifying.
testified that she was in a bedroom towards the back of the
apartment when Davis arrived and came out when she heard loud
noises in the front of the apartment where Davis, Jackie, and
Wamue were fighting. She also testified that she never saw
the gun during the incident, but knew there was a gun because
Jackie, her mother, told her Davis had a gun.
Two arose from an incident that occurred on August 30, 2016,
when police executed a warrant for Davis's arrest. During
a pat down of Davis, an officer found a Crown Royal bag tied
to his boxer shorts. While executing the arrest, officers
also saw a revolver barrel sticking out of a Crown Royal bag
in the mudroom of the house. The officers then obtained and
executed a search warrant for the home. During this search,
they discovered the firearm was a disassembled, stolen
revolver. Additionally, the officers found a third Crown
Royal bag in a basement crawl space inside a partially
unscrewed and open air duct, lying next to a gun lock.
time of his arrest, Davis lived with six other individuals in
his home: Heather; Heather's mother, Michelle;
Davis's 23-year-old son Keenan Davis, Jr. (J.R.); Molly
Cobb; James "Jim Bob" Sullivan; and a man named
and Heather were running a transportation company out of
their home, providing safe rides home for intoxicated people;
Davis kept the home running and paid the bills to keep the
gas and electricity on in the home. After Davis's arrest,
the six individuals had to move first to a motel, then a
trial, the government's theory was that the revolver
belonged to Davis. The government called several witnesses
and introduced into evidence calls Davis received from jail.
The testimony and evidence was conflicting as to the owner of
the revolver. On appeal, Davis contests the government
calling J.R. to testify, and argues that the government
failed to provide sufficient evidence to prove the gun
belonged to him.
calling J.R. to the stand, the district court held a bench
conference with counsel where the government requested
permission to treat J.R. as a hostile witness. The government
told the court that they had attempted to contact J.R. to
meet with them before trial, but he failed to respond. The
district court then asked both counsel if either of them
would like a voir dire, but neither accepted. The
district court asked the government how long it anticipated
the questioning would take to determine whether the court
should give the jury a short break. The government responded,
"I only have to get one thing out of him. I anticipate