U.S. v. Anderson, 95-3428

• Citation: 78 F.3d 420
• Decision Date: 18 March 1996
• Docket Number: No. 95-3428,95-3428
• Parties: UNITED STATES of America, Appellee, v. Gary D. ANDERSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 420

78 F.3d 420

UNITED STATES of America, Appellee, v. Gary D. ANDERSON, Appellant.

No. 95-3428.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 13, 1996.

Decided March 18, 1996.

Appeal from the United States District Court for the Eastern District of Arkansas; Henry Woods, Judge.

Randel Miller, Jonesboro, AR, argued, for appellant.

Kenneth Stoll, Little Rock, AR, argued, for appellee.

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

DIANA E. MURPHY, Circuit Judge.

Gary D. Anderson was charged with three counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. 924(e)(1). After a jury trial he was acquitted on two counts and convicted of one, and was sentenced by the district court ¹ to 235 months imprisonment as a career offender. ² 2] Anderson appeals from the judgment of conviction on the basis that there was insufficient evidence to support it. We affirm.

Anderson was convicted of Count II which alleged possession of a RG Industries, Model RG-31, .38 caliber revolver; the other counts alleged possession of four different firearms. To establish one of the elements of the offense, the government introduced into evidence certified copies of four prior felony convictions involving drug-related offenses.

Several individuals testified at trial. Anderson's nephew, Justin, and Justin's friend, Michael, testified that they stole a RG .38 revolver, a Smith and Wesson .44 chrome pistol, and three other guns from a car lot named O K Car-ral in Jonesboro, Arkansas on August 23, 1994. Justin and Michael also stated that they gave Anderson four of these guns, including a RG .38 revolver and a .44 chrome pistol. Anderson told Michael that he could probably sell the .38 revolver for $100.

Brandon Smith testified that while he was at Anderson's home in August 1994, Anderson asked if he knew anyone who would be interested in a .38 revolver which he described as "hot". Smith said he also saw a Smith and Wesson .44 chrome pistol while he was there and that he took the .38 revolver from Anderson and sold it. He later left the proceeds of the sale under a jar in Anderson's house because Anderson was gone when Smith returned with the money.

The owner of the O K Car-ral, Roy Wilcox, testified that five of his guns had been stolen, including a Smith and Wesson .44 chrome pistol and a RG .38 revolver which had never been returned. The investigating agent of the Bureau of Alcohol, Tobacco and Firearms (ATF), John Ford, testified that the .38 revolver was never recovered, and evidence was introduced to show that it had been manufactured outside of Arkansas.

We may reverse on insufficiency of the evidence only if no reasonable jury could find beyond a reasonable doubt that Anderson is guilty of the offense charged. United States v. Washington, 17 F.3d 230, 232 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 153, 130 L.Ed.2d 92 (1994). The verdict may be based in whole or in part on circumstantial evidence. United States v. Ali, 63 F.3d 710, 717 (8th Cir.1995). In reviewing the evidence, we must draw all reasonable inferences in the government's favor and view it in the light most favorable to the prosecution. Id. The evidence need not exclude every reasonable hypothesis of innocence, and we may not disturb the conviction if the evidence rationally supports two conflicting hypotheses. United States v. Johnson, 18 F.3d 641, 645 (8th Cir.1994).

To convict Anderson under 18 U.S.C. § 922(g)(1), the government had to show beyond a reasonable doubt that (1) he had been convicted of a felony; 2) he thereafter possessed a firearm; and (3) the firearm had traveled in or affected interstate commerce. See U.S. v. Eldridge, 984 F.2d 943, 946 (8th Cir.1993). Possession may be either actual or constructive. Id. Constructive possession exists when a person has ownership, dominion, or actual control over the contraband. Id.

Anderson contends that the government failed to prove that he possessed a firearm. Although Justin and his friend testified that they stole the .38 revolver from a car lot and gave it to him, their story should be discounted he says because he was found not guilty on the other count about which the two boys testified. Anderson also argues that Brandon Smith cannot be believed because he is on parole and therefore motivated to please the authorities. Finally, Anderson points to his own testimony that he never possessed the .38 revolver and that of his wife and brother that they never saw him with a gun.

It is not our province on appeal to "reweigh the evidence or judge the credibility of witnesses when reviewing the sufficiency of the evidence." United States v. Nururdin, 8 F.3d 1187, 1194 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1328, 127 L.Ed.2d 676 (1994). It was for the jury to resolve conflicting testimony and determine witness credibility. See, e.g., United States v. Smith, 49 F.3d 475, 478 (8th Cir.1995) (jury may credit testimony of person who had been arrested with the defendant and had allegedly smoked crack the night of the incident); United States v. Bruce, 704 F.2d 1048, 1049 (8th Cir.1983) (jury's prerogative to credit testimony of police officer over that of two contrary witnesses); United States v. Williams, 897 F.2d 1430, 1432 (8th Cir.1990) (affirming § 922(g)(1) conviction based on officer's testimony despite conflicting testimony from another officer).

Here, there was sufficient circumstantial evidence to show that Anderson had either actual or constructive possession of a firearm. Three people testified that they saw Anderson with at least two firearms, a .38 revolver and a Smith and Wesson .44 chrome pistol. Anderson's nephew and friend stated they gave him four stolen guns, including a .44 chrome pistol and a .38 revolver. Anderson said he could sell the latter for $100. Smith testified that Anderson gave him the .38 revolver at Anderson's house, told him it was "hot," and that he sold the gun and left the proceeds in Anderson's home. Smith also stated that he saw a Smith and Wesson .44 pistol in Anderson's home.

As trier of fact, the jury had the best opportunity to observe the witnesses' facial expressions, attitudes, tone of voice, reactions to questions, and other behavior. See Nururdin, 8 F.3d at 1194. The jury decided to credit the prosecution testimony over that offered by the defendant, and we will not second-guess its decision. The fact that Anderson was acquitted on another count about which two of the prosecution witnesses also testified does not impeach the guilty verdict. The guns charged in that count were allegedly taken from another location several days later, and the totality of the evidence for Count II was...