U.S. v. Smith, 96-1850

• Decision Date: 03 January 1997
• Docket Number: No. 96-1850,96-1850
• Citation: 104 F.3d 145
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Mike SMITH, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 145

104 F.3d 145

UNITED STATES of America, Plaintiff--Appellee, v. Mike SMITH, Defendant--Appellant.

No. 96-1850.

United States Court of Appeals Eighth Circuit.

Submitted July 11, 1996.

Decided Jan. 3, 1997.

Al J. Arendt, Pierre, SD, argued, for Defendant-Appellant.

Mara M. Kohn, Pierre, SD, argued (Karen E. Schreier, U.S. Atty., on the brief), for Plaintiff-Appellee.

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

A jury found Mike Smith guilty of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (1994). Smith appeals his conviction, challenging the district court's ¹ response to a jury question and its denial of Smith's motions for a judgment of acquittal. We affirm.

I.

Mike Smith is a felon and was on supervised release on August 12, 1995. That morning, he drove his father's pickup to the town of Parmelee, South Dakota. Smith flagged down Officer Hermus Lone Dog, a police officer for the Rosebud Sioux Tribe. Officer Lone Dog stopped and spoke to Smith and noticed signs of intoxication. Smith told the officer he had been drinking.

Officer Lone Dog placed Smith under arrest for driving under the influence of alcohol. When Smith resisted Officer Lone Dog's attempt to handcuff him, the officer summoned help from Officer Kevin Swalley. The two officers handcuffed Smith and placed him in the back seat of the patrol car. While being handcuffed, Smith said, "I'm going. I'm going back." (Tr. at 25.)

Officer Swalley proceeded to move Smith's pickup off the road where it was blocking traffic, so that it could be inventoried and towed. As he moved the seat forward to accommodate his stature, Officer Swalley observed the butt end of a 30-30 caliber rifle lying behind the seat and a red box in the pickup door that contained 30-30 caliber rifle bullets. He told Officer Lone Dog about his observations, and Officer Lone Dog then took the weapon and ammunition from the pickup back to his patrol car. Smith became quite agitated when he saw the firearm and the ammunition, and began knocking his head against the cage in the patrol car and kicking the rear window. He said, "I know I'm going back, I'm on [f]ederal probation." (Id. at 33-34.)

Smith was charged with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The case proceeded to trial, and a jury returned a guilty verdict. Smith twice moved for a judgment of acquittal, but the district court denied both motions. Smith appeals.

II.

Under 18 U.S.C. § 922(g)(1), a person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" may not possess any firearm or ammunition. Smith argues that the district court erred in denying his motions for acquittal. He claims there was insufficient evidence to establish beyond a reasonable doubt that he knowingly possessed the rifle.

Our standard of review on this issue is quite narrow. United States v. Cunningham, 83 F.3d 218, 222 (8th Cir.1996). "We review the denial of a motion for judgment of acquittal based upon sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict." United States v. Johnson, 56 F.3d 947, 956 (8th Cir.1995). We give the government the benefit of all the reasonable inferences that could logically be drawn from the evidence. Cunningham, 83 F.3d at 222. We must uphold the verdict if the evidence so viewed is such that "there is an interpretation of the evidence that would allow a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt." Id. (quoting United States v. White, 81 F.3d 80, 82 (8th Cir.1996)). "The verdict may be based in whole or in part on circumstantial evidence." United States v. Alvarado-Sandoval, 997 F.2d 491, 493 (8th Cir.1993).

The government put on several witnesses to prove its case. The government first called Smith's sister, Mary Olguin, as a hostile witness. Olguin testified that she owned the 30-30 rifle and that it had been hanging on a wall in her parents' house for several years. Olguin said she had placed it in the pickup during the first week of August without her father's knowledge. She said the rifle did not work, and she wanted her father to take it to Valentine, Nebraska, to be fixed.

Smith's father also testified. He stated that the only people living in his home on August 12, 1995, besides himself, were his wife, his daughter Kathleen who was disabled, and Smith. Smith's father said that he had not placed the rifle in the pickup and that his daughter Kathleen was incapable of doing so. He told the jury he does not own any guns and had not bought any bullets in several years. He also testified that he does not allow anyone to drive his pickup unless he is present, but Smith has a key that fits the ignition of the pickup.

Finally, Smith's mother testified. She stated she had last seen the rifle hanging on the wall of her home on August 10, 1995. She testified, as her husband had, that her daughter Kathleen would be incapable of placing the rifle in the pickup. Mrs. Smith also testified that she had not placed the rifle in the pickup, has never bought any bullets, and had never seen the bullets the officers found in the pickup. She told the jury that she and her husband normally took their car, rather than the pickup, to shop in Valentine. They rarely used the pickup.

The jury could reasonably have inferred that Olguin fabricated her story. In contrast to her claim that she had put the rifle in the pickup during the first week of August, her mother testified to seeing the rifle hanging on the wall as late as August 10. Olguin's alleged reason for putting the rifle in the pickup is also suspect, because her parents normally take their car, instead of their pickup, to shop in Valentine. The jury reasonably could have concluded that Olguin was attempting to cover for her brother and therefore could have disregarded Olguin's testimony as incredible. We would not disturb such a credibility determination. See United States v. Martinez, 958 F.2d 217, 218 (8th Cir.1992) ("It is the sole province of the jury to weigh the credibility of a witness.").

Considering the remaining evidence, the jury could have believed Smith's parents' testimony that neither they nor their daughter Kathleen had moved the rifle from the wall of their home to their pickup. The jury could then have found that Smith was the only person who had access both to his father's pickup and to the rifle, and it was he who had placed the rifle and the bullets in the pickup. Having reached this finding, it is indeed a small logical step to conclude that Smith knowingly had constructive possession of the rifle at the time he was arrested. Smith's agitation when he saw that the officers had found the rifle and the ammunition and his statements about having "to go back" support this conclusion.

Viewing the evidence in this light, we find that it was sufficient to support the verdict. The district court did not err in denying Smith's motions for a judgment of acquittal.

Smith's second argument on appeal concerns the district court's response to a question the jury posed regarding the elements of section 922(g)(1). During jury deliberations, the jury sent a note to the district court, asking: "Does constructive possession mean you have to know that an item is in your presence in order to possess that item[?]". (Suppl. Tr. at 2.) The district court prepared the following answer: "In response to the question from the jury, although you are to consider all of the instructions, you might consider Instruction number 16 and Instruction number 15A." (Id.) The court then solicited comments from both parties regarding the proposed response.

Defense counsel objected and submitted the following response: "Yes, a person must know that he has an item in his presence...