How later opinions annotate it (1 example)
- on other grounds
Hien Van Tieu, 279 F.3d 917, 922 (10th Cir. 2002), abrogated on other grounds by Henderson v. United States, 135 S. Ct. 1780 (2015).
— United States v. Martinez, No. 16-1393 (10th Cir. Sept. 11, 2018)
At page 921 Determining constructive amendment of indictment42 citing cases“weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury.”
- United States v. Smith, No. 21-4130, 2023 WL 1156294 (10th Cir. Jan. 31, 2023).unpublishedPut another way, the special verdict form and 7 Appellate Case: 21-4130 Document: 010110805773 Date Filed: 01/31/2023 Page: 8 jury instructions left no possibility that Mr. Smith “was convicted of an offense other than that charged in the…
- Smith v. United States, No. 2:21-cv-00081 (D. Utah Oct. 5, 2021).A careful 50 Farr, 536 F.3d at 1180 (citation omitted). 51 United States v. Zar, 790 F.3d 1036, 1050-51 (10th Cir. 2015). 52 United States v. Ray, 899 F.3d 852, 866 (10th Cir. 2018) (quoting United States v. Hien Van Tieu, 279 F.3d 917, 92…
- Smith v. United States, No. 2:21-cv-00081 (D. Utah Aug. 13, 2021).While the Indictment more broadly alleged that the “500 grams or more” included only “a detectable amount of methamphetamine,” the jury instructions and special verdict form asked the jury the narrower question of whether there were “500 g…
- United States v. Nicholas, 686 F. App'x 570 (10th Cir. 2017).unpublished In doing so, we may “not weigh conflicting evidence or consider witness credibility,” United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002), but must instead “accept at face value the jury’s credibility determinations and its…
- United States v. Burch, 72 F. Supp. 3d 1235 (N.D. Okla. 2014).published“A constructive amendment occurs when the Government, through evidence presented at trial, or the district court, through instructions to the jury, broadens the basis for a defendant’s conviction beyond acts charged in the indictment.” Uni…
- United States v. Hendrickson, 592 F. App'x 699 (10th Cir. 2014).unpublishedIndeed, U.S.S.G. § 1B1.3(a)(1)(A) explicitly requires the sentencing court to consider, in calculating a defendant’s base offense *706 level and other adjustments, “all acts and omissions committed, aided, [and] abetted ... by the defendan…
- United States v. Smalls, 752 F.3d 1227 (10th Cir. 2014).publishedIt is not our job to “weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury.” United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir.2002).
- United States v. Williams, 549 F. App'x 813 (10th Cir. 2013).unpublishedV; Stirone v. United States, 361 U.S. 212, 217 , 80 S.Ct. 270 , 4 L.Ed.2d 252 (1960). “ ‘To constitute a constructive amendment, the district court proceedings must modify an essential element of the offense or raise the possibility the de…
- United States v. DeChristopher, 695 F.3d 1082 (10th Cir. 2012).published “To constitute a constructive amendment, the district court proceedings must modify an essential element of the offense or raise the possibility the defendant was convicted of an offense other than that charged in the indictment.” United S…
- United States v. Ciocchetti, 422 F. App'x 695 (10th Cir. 2011).unpublishedUnited States v. Cruz-Rodriguez, 570 F.3d 1179, 1182 (10th Cir.2009) (quoting United States v. Van Tieu, 279 F.3d 917, 921 (10th Cir.2002)) (internal quotation marks omitted); accord United States v. Farr, 536 F.3d 1174, 1180 (10th Cir.200…
Show 32 more citing cases
- United States v. Dayton, 426 F. App'x 582 (10th Cir. 2011).unpublished See United States v. Rahseparian, 231 F.3d 1257, 1264-66 (10th Cir.2000) (explaining that the indictment clearly did not charge the defendant with a particular part of the statute and stating that "it is a fundamental precept of federal co…
- United States v. King, 632 F.3d 646 (10th Cir. 2011).publishedWe will not “weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury.” United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir.2002).
- United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011).published "Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. LaVallee, 439 F.3d…
- United States v. Cota-Gastelum, 404 F. App'x 307 (10th Cir. 2010).unpublishedBut in reviewing the sufficiency of the evidence, we do not “consider witness credibility, as that duty is delegated exclusively to the jury.” United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002).
- United States v. Sprenger, 625 F.3d 1305 (10th Cir. 2010).published “We review de novo the legal question of whether the district court proceedings constructively amended the indictment.” United States v. Hien Van Tieu, 279 F.3d 917, 920 (10th Cir.2002).
- United States v. Hargrove, 382 F. App'x 765 (10th Cir. 2010).unpublishedUnited States v. Tieu, 279 F.3d 917, 921 (10th Cir.2002) (citation omitted).
- United States v. Cruz-Rodriguez, 570 F.3d 1179 (10th Cir. 2009).publishedUnited States v. Van Tieu, 279 F.3d 917, 921 (10th Cir.2002) (citations omitted); United States v. Farr, 536 F.3d 1174, 1179-80 (10th Cir.2008).
- United States v. Parker, 553 F.3d 1309 (10th Cir. 2009).publishedWhen conducting this review, “we do not weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury.” United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir.2002).
- United States v. Farr, 536 F.3d 1174 (10th Cir. 2008).published We acknowledge that in some constructive amendment cases we have loosely invoked the term “harmless error.” See Bishop, 469 F.3d at 902, 904 ; United States v. Tieu, 279 F.3d 917, 921 (10th Cir.2002).
- United States v. Weiss, 469 F. Supp. 2d 941 (D. Colo. 2007).publishedHien Van Tieu, 279 F.3d 917, 921 (10th Cir.2002).
- United States v. Bishop, 469 F.3d 896 (10th Cir. 2006).published United States v. Tieu, 279 F.3d 917, 920 (10th Cir.2002).
- United States v. Pettigrew, 468 F.3d 626 (10th Cir. 2006).published“Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Id. (quoting United States v. Hien…
- United States v. David Pettigrew, 455 F.3d 1164 (10th Cir. 2006).published“Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Id. (quoting United States v. Hien…
- United States v. Cruz, 189 F. App'x 725 (10th Cir. 2006).unpublishedIn order to establish a constitutional violation, Mr. Cruz must show that the jury instructions were a constructive amendment to the indictment because they “modify an essential element of the [charged] offense or raise the possibility the…
- United States v. Rockey, 449 F.3d 1099 (10th Cir. 2006).publishedUnited States v. LaVallee, 439 F.3d 670, 697 (10th Cir.2006). *1103 “Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant gu…
- United States v. McGehee, 177 F. App'x 815 (10th Cir. 2006).unpublished United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir.2002).
- United States v. Verbickas, 439 F.3d 670 (10th Cir. 2006).published “Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Hien Van Tieu, 279…
- United States v. Norman, 388 F.3d 1337 (10th Cir. 2004).published Furthermore, in order to sustain a conviction based on constructive possession in joint occupancy cases, the government must show “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the wea…
- United States v. Herrera-Hernandez, 90 F. App'x 349 (10th Cir. 2004).unpublishedUnited States v. Van Tieu, 279 F.3d 917, 921-22 (10th Cir.2002).
- United States v. Pahulu, 274 F. Supp. 2d 1235 (D. Utah 2003).published“Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Van Tieu, 279 F.3d…
- United States v. Herrera-Hernandez, No. 02-2180 (10th Cir. Apr. 21, 2003).unpublishedUnited States v. Van Tieu, 279 F.3d 917, 921-22 (10th Cir. 2002).
- United States v. Anderson, 60 F. App'x 761 (10th Cir. 2003).unpublishedUnited States v. Van Tieu, 279 F.3d 917, 921-22 (10th Cir.2002) (citations omitted).
- United States v. Malcom Derome McGee Also Known as Malik, Also Known as Mike McGee, 291 F.3d 1224 (10th Cir. 2002).publishedWhether the evidence is sufficient to establish that Mr. McGee had the requisite intent is a question we review de novo, “viewing the evidence in the light most favorable to the government....” United States v. Hien Van Tieu, 279 F.3d 917,…
- United States v. Trabanino, 41 F. App'x 302 (10th Cir. 2002).unpublishedJackson v. Virginia, 443 U.S. 307, 317 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); United States v. Hien Van Tieu, 279 F.3d 917, 921-22 (10th Cir.2002).
- United States v. Avery, 295 F.3d 1158 (10th Cir. 2002).published
- United States v. Whittaker, 72 F. App'x 772 (10th Cir. 2003).unpublished
- United States v. Colonna, 360 F.3d 1169 (10th Cir. 2004).published
- United States v. Gonzalez-Edeza, 359 F.3d 1246 (10th Cir. 2004).published
- United States v. Miles, 327 F. App'x 797 (10th Cir. 2009).unpublished
- United States v. Chavez, 340 F. App'x 501 (10th Cir. 2009).unpublished
- United States v. Rucker, 417 F. App'x 719 (10th Cir. 2011).unpublished
- United States v. Bojorquez-Granillo, 83 F. App'x 300 (10th Cir. 2003).unpublished
At page 922 Establishing constructive possession in joint occupancy cases18 citing cases“evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband.”
- United States v. Martinez, No. 16-1393 (10th Cir. Sept. 11, 2018).unpublished To sustain a conviction under § 922(g)(1), “the [g]overnment [must] prove (1) knowing possession; (2) by a restricted person; (3) of any firearm or ammunition that has traveled in or affected interstate commerce.” United States v. Hien Van…
- United States v. Benford, 875 F.3d 1007 (10th Cir. 2017).published (affirming constructive-possession conviction where firearm was found in bedroom in which defendant slept and stored his personal effects, even though the door had no lock and other family members and friends lived in th…)
- United States v. Exom, 565 F. App'x 699 (10th Cir. 2014).unpublishedThat connection exists where there is “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon.” United States v. Hien Van Tieu, 279 F.3d 917, 922 (10th Cir.2002) (emphasis added) (in…
- United States v. Frost, 318 F. App'x 664 (10th Cir. 2009).unpublishedId. at 1210 ; United States v. Hien Van Tieu, 279 F.3d 917, 922 (10th Cir.2002); see also Mills, 29 F.3d at 549-50 .
- United States v. Poe, 556 F.3d 1113 (10th Cir. 2009).publishedSee Ledford, 443 F.3d at 714 ; United States v. Hien Van Tieu, 279 F.3d 917, 922 (10th Cir.2002); Mills, 29 F.3d at 549-50 .
- United States v. Watters, 237 F. App'x 376 (10th Cir. 2007).unpublished“To sustain a conviction for constructive possession, the government must present ‘evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon.’ ” Id. at 714 (quoting United States v. Hie…
- United States v. Ruiz, 182 F. App'x 752 (10th Cir. 2006).unpublishedTo sustain a conviction for constructive possession, the government must present “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon.” United States v. Hien Van Tieu, 279 F.3d 91…
- United States v. Ruben Dean Ledford, 443 F.3d 702 (10th Cir. 2006).published To sustain a conviction for constructive possession, the government must present “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon.” United States v. Hien Van Tieu, 279 F.3d 91…
- United States v. Mindreci, 163 F. App'x 690 (10th Cir. 2006).unpublishedFurthermore, in order to sustain a conviction based on constructive possession in joint occupancy cases, the government must show “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the wea…
- United States v. Ledford, 154 F. App'x 692 (10th Cir. 2005).unpublished To sustain a conviction for constructive possession, the government must present “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon.” United States v. Hien Van Tieu, 279 F.3d 91…
Show 8 more citing cases
- United States v. Norman, 388 F.3d 1337 (10th Cir. 2004).published Furthermore, in order to sustain a conviction based on constructive possession in joint occupancy cases, the government must show “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the wea…
- United States v. Thompson, 68 F. App'x 944 (10th Cir. 2003).unpublishedA person has constructive possession of a firearm if he “knowingly holds the power to exercise dominion or control over the firearm.” United States v. Heckard, 238 F.3d 1222, 1228 (10th Cir.2001) (citing United States v. Mills, 29 F.3d 545…
- United States v. Rhodes, 62 F. App'x 869 (10th Cir. 2003).unpublishedIn considering the evidence necessary to satisfy this requirement we have previously held that “[t]he Government may meet its burden of proof [under § 922(g)(1)] by showing constructive possession; actual possession is not required.” Unite…
- United States v. Ezell, 53 F. App'x 21 (10th Cir. 2002).unpublishedUnited States v. Hien Van Tieu, 279 F.3d 917, 922 (10th Cir.2002) (citing United States v. Heckard, 238 F.3d 1222, 1228 (10th Cir.2001)).
- United States v. Gorman, 312 F.3d 1159 (10th Cir. 2002).published United States v. Van Tieu, 279 F.3d 917, 922 (10th Cir.2002).
- United States v. Dority, 42 F. App'x 301 (10th Cir. 2002).unpublished“A conviction under § 922(g)(1) requires the Government to prove (1) knowing possession; (2) by a restricted person; (3) of any firearm or ammunition that has traveled in or affected interstate commerce.” United States v. Tieu, 279 F.3d 91…
- United States v. Colonna, 360 F.3d 1169 (10th Cir. 2004).published
- United States v. Rivers, 355 F. App'x 163 (10th Cir. 2009).unpublished
At page 920 Reviewing constructive amendment of indictment by jury instructions3 citing cases§ 922(g)(1). The district court sentenced him to 41 months imprisonment and three years supervised release. Defendant appeals, asserting (1) the district…
- United States v. Sprenger, 625 F.3d 1305 (10th Cir. 2010).published “We review de novo the legal question of whether the district court proceedings constructively amended the indictment.” United States v. Hien Van Tieu, 279 F.3d 917, 920 (10th Cir.2002).
- United States v. Bishop, 469 F.3d 896 (10th Cir. 2006).published United States v. Tieu, 279 F.3d 917, 920 (10th Cir.2002).
- United States v. Hathaway, 318 F.3d 1001 (10th Cir. 2003).publishedUnited States v. Avery, 295 F.3d 1158, 1173-74 (10th Cir.2002); United States v. Van Tieu, 279 F.3d 917, 920 (10th Cir.2002).
v.
HIEN VAN TIEU, Defendant-Appellant
In 1997, Defendant Hien Van Tieu was released on parole after serving time for a felony conviction. As part of his parole agreement, Defendant consented to regular visits to his residence by parole officers, and to searches of his premises based upon reasonable suspicion of a crime or parole violation. During the course of a search, parole officers discovered a semiautomatic 9mm pistol and a magazine containing 35 rounds of ammunition between the mattresses in Defendant’s bedroom. Defendant lived in his parents’ home with several other relatives and family friends. The door to his bedroom did not lock and others in the home had access to the room.
A jury subsequently convicted Defendant of being a felon in possession of a firearm, in violation of 18 U.S.C.[*920] § 922(g)(1). The district court sentenced him to 41 months imprisonment and three years supervised release. Defendant appeals, asserting (1) the district court’s jury instructions constituted an unlawful constructive amendment of the indictment, and (2) the evidence at trial was insufficient to support a finding that he knowingly possessed a firearm. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
II.
Section 922(g)(1) provides: “It shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... [to] possess in or affecting commerce any firearm or ammunition.” 18 U.S.C. § 922(g)(1). At trial, the Government introduced evidence Defendant possessed both the firearm and ammunition. The jury instructions set forth the elements of the crime under the statute, and specifically instructed that a guilty verdict could be based on knowing possession of either a firearm or ammunition. [1] The district court provided a special verdict form that required the jury to rule separately and unanimously on each. [2] The jury returned a guilty verdict on knowing possession of a firearm and a guilty verdict on knowing possession of ammunition. After trial, the district court granted Defendant’s motion to vacate the ammunition verdict because the Government did not establish the ammunition had traveled in or affected interstate commerce as required under the statute. The district court then sentenced Defendant for a single violation of 18 U.S.C. § 922(g)(1).
II.
Defendant argues the district court erred in instructing the jury he could be convicted for possessing ammunition. According to Defendant, this instruction constitutes a constructive amendment to the indictment. The grand jury indictment charged Defendant with possession of: “a firearm and semi-automatic weapon, as defined in 18 U.S.C. Section 921(a)(3) and (30), to wit, a INTRATEC 9mm pistol TEC-DC9, serial number D073183, with a magazine containing 35mm rounds of ammunition, all in violation of 18 U.S.C. § 922(g)(l)(emphasis added).” Defendant claims the indictment’s use of the term “with” instead of an “and” limits his jeopardy to possession of a firearm. We review de novo the legal question of whether the district court proceedings constructively amended the indictment. United States v. Moore, 198 F.3d 793, 795 (10th Cir.1999).
[*921] The prohibition on constructive amendments is derived from (1) the Fifth Amendment which limits a defendant’s jeopardy to offenses charged by a grand jury, and (2) the Sixth Amendment which guarantees the defendant notice of the charges against him. Id. A constructive amendment occurs when the Government, through evidence presented at trial, or the district court, through instructions to the jury, broadens the basis for a defendant’s conviction beyond acts charged in the indictment. United States v. Gauvin, 173 F.3d 798, 805 (10th Cir.1999). To constitute a constructive amendment, the district court proceedings must modify an essential element of the offense or raise the possibility the defendant was convicted of an offense other than that charged in the indictment. Id. Where an indictment properly pleads violation of a statute, and the defendant was not misled about the nature of the charges, his substantive rights are not prejudiced. Moore, 198 F.3d at 795.
Though not perfectly drafted, the indictment clearly charges defendant with a violation of 18 U.S.C. § 922(g)(1). A violation of § 922(g)(1) occurs if Defendant knowingly possessed “any firearm or ammunition.” 18 U.S.C. § 922(g)(1). The indictment refers both to the firearm and ammunition, giving notice of the factual basis of the offense. The indictment’s description of a “firearm with ammunition” rather than a “firearm or ammunition” does not, as Defendant claims, modify an element of the offense or allow conviction for an offense other than that charged. See Moore, 198 F.3d at 795-96. A review of the record confirms Defendant was not misled by the terms of the indictment. Defendant introduced evidence challenging his knowing possession of both the firearm and the ammunition. Both were found together between the mattresses in Defendant’s bedroom and his defense to knowing possession was identical as to each. We conclude Defendant was not misled by the indictment or prejudiced by the jury instructions.
In any event, Defendant’s constructive amendment claim is subject to review for harmless error. See United States v. Prentiss, 256 F.3d 971, 983-84 (10th Cir.2001)(en banc)(holding defects in an indictment are subject to harmless error review). Even if we assumed the jury instructions improperly allowed the jury to convict for possession of ammunition, the error was rendered harmless when the district court dismissed the ammunition charge. The special verdict form required the jury to unanimously determine whether Defendant knowingly possessed a firearm and the jury returned a guilty verdict on this charge. The district court sentenced Defendant solely on his possession of the firearm. The special verdict and the post-trial proceedings clearly render harmless any possible error presented by the jury instructions. See id. at 984.
III.
Defendant next argues the evidence presented at trial was insufficient to support a finding he knowingly possessed a firearm or ammunition as required under § 922(g)(1). We review sufficiency of evidence claims de novo. See United States v. Vallo, 238 F.3d 1242, 1246 (10th Cir.2001). Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. at 1247. In reviewing the evidence, we do not weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury. United States v. Sanders, 240 F.3d 1279, 1281 (10th Cir.2001). We resolve any conflicts[*922] in the evidence in favor of the Government. Id.
A conviction under § 922(g)(1) requires the Government to prove (1) knowing possession; (2) by a restricted person; (3) of any firearm or ammunition that has traveled in or affected interstate commerce. United States v. Heckard, 238 F.3d 1222, 1228 (10th Cir.2001). The parties stipulated that Defendant was a restricted person under 18 U.S.C. § 922 and that the firearm traveled in interstate commerce. Defendant asserts, however, that the evidence at trial did not establish his knowing possession.
The Government may meet its burden of proof by showing constructive possession; actual possession is not required. Id. To establish constructive possession, the Government must show the defendant “knowingly holds the power to exercise dominion or control over the firearm.” Id. If the defendant has exclusive possession of the premises, knowledge and control are properly inferred. Id. If the defendant is not in exclusive possession, the Government must show a connection or nexus between the defendant and the firearm. Id. 3 To support a conviction for knowing possession where there is evidence of joint occupancy, the Government must offer “evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon.” Id. We conclude the Government met this burden.
Parole officers found the firearm in the bedroom Defendant claimed as his own. Testimony at trial established Defendant slept in this room at night, slept on the bed in which the firearm was found, and used the room to store his personal effects. The firearm and ammunition were wrapped in a bandana similar to bandanas found folded carefully around photographs on the entertainment center. Although the testimony of family members concerning Defendant’s use of the room conflicts in minor detail with the parole officers’ testimony, the discrepancy gives rise only to an issue of credibility and this is solely within the purview of the jury. The jury clearly found persuasive the evidence linking Defendant to the firearm. Based upon the evidence presented at trial, a reasonable jury could infer Defendant had knowledge and control of the firearm. In sum, the government introduced sufficient evidence to support Defendant’s conviction.
The district court judgment is AFFIRMED.
. The jury instructions read, in relevant part:
The second element which the government must prove beyond a reasonable doubt is that on or about the date set forth in the indictment the defendant knowingly possessed the firearm as charged in the indictment or knowingly possessed the ammunition as charged in the indictment.
The government is not required to prove that the defendant possessed both the firearm described in the indictment and the ammunition. If all twelve of you unanimously find beyond a reasonable doubt that the defendant knowingly possessed the firearm or if all twelve of you find beyond a reasonable doubt that defendant knowingly possessed the ammunition the second element is satisfied.
. The district court submitted the special verdict form to address Defendant’s concern that the jury might convict Defendant for possession of a firearm or ammunition without unanimously finding the defendant possessed either one. Defendant agreed that the special verdict form addressed this concern, but continued to object to the inclusion of the ammunition charge as a basis for a guilty verdict.
. The Government asserts Defendant had exclusive possession of the bedroom, arguing that evidence other family members had access to the room is insufficient to show joint occupancy. Because we conclude the Government presented evidence sufficient to support a finding of knowing possession in a jointly occupied premises, we need not determine whether Defendant had exclusive possession.