United States v. Gary D. Anderson ( 1996 )

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No. 95-3428
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Gary D. Anderson, *
*
Appellant. *
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Submitted: February 13, 1996
Filed: March 18, 1996
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Before MAGILL, HEANEY, and MURPHY, Circuit Judges.
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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 court1 to 235 months imprisonment
as a career offender.2 Anderson appeals from the judgment of conviction
on the basis that there was insufficient evidence to support it. We
affirm.
1
The Honorable Henry Woods, United States District Judge for
the Eastern District of Arkansas.
2
Any person who violates § 922(g) and has three previous
convictions for a violent felony or a serious drug offense is
subject to a maximum $25,000 fine and minimum fifteen year
imprisonment. 18 U.S.C.A. § 924(e)(1) (1995).
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
2
F.3d 230, 232 (8th Cir.), cert. denied, 115 S. Ct. 153 (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 (8th Cir. 1993),
cert. denied, 114 S. Ct. 1328 (1994). It was for
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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 different.
We may not speculate or inquire into why the jury chose to acquit Anderson
on certain counts and convict him on another. See U.S. v. Finch,
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16 F.3d 228, 230-31 (8th Cir. 1994) (inconsistency of jury verdicts not
basis for review or reversal of conviction).
Anderson also complains that the government never introduced the
weapon that he was alleged to have possessed and there was no testimony by
the car lot owner whose .38 revolver had been stolen as to its serial
number or identifying marks.
Under § 922(g), the government was required to prove that Anderson
possessed a "firearm" within the meaning of § 921(a)(3), not that he
possessed the .38 revolver which was alleged in the indictment. See United
States v. Jones, 16 F.3d 487, 490 (2nd Cir. 1994) (firearm under
§ 921(a)(3) includes "any weapon . . . which will or is designed to or may
readily be converted to expel a projectile by the action of an explosive");
see also U.S. v. McIntosh, 23 F.3d 1454, 1456-57 (8th Cir.), cert. denied,
115 S. Ct. 333 (1994) (even though indictment alleged that defendant had a
.357 revolver, proof that defendant carried any firearm was sufficient
because the specific type of firearm was not an element of the offense).
Moreover, proof that a defendant possessed a firearm may be
established solely by eyewitness testimony where the gun is not recovered
or introduced at trial. See, e.g., Smith, 49 F.3d at 478 (testimony of one
eyewitness adequately established unlawful possession of a firearm); Jones,
16 F.3d at 490 (although eyewitnesses were unfamiliar with the unrecovered
gun and had not observed it at close range, their testimony was sufficient
to support jury finding that object defendant displayed was a firearm for
purposes of § 922(g)(1)); accord United States v. Buggs, 904 F.2d 1070,
1076 (7th Cir. 1990) ("fact that the gun was not produced at trial or that
the witnesses did not have an opportunity to examine closely the weapon
does not prevent conviction of a firearm offense").
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Although the .38 revolver was not introduced at the trial in this
case, there was considerable circumstantial evidence that Anderson
possessed it. Three witnesses testified that they saw Anderson with a .38
revolver and also handled it themselves. Two witnesses stated that they
gave Anderson a Smith and Wesson .44 chrome pistol and a .38 revolver they
stole from a car lot. The car lot owner testified that both his .38
revolver and a Smith and Wesson .44 chrome pistol were stolen at the same
time. Brandon Smith testified that he saw a .44 chrome pistol in
Anderson's home.
Viewing the evidence in the light most favorable to the verdict and
accepting all reasonable inferences tending to support it, we cannot say
the government failed to prove beyond a reasonable doubt that Anderson
unlawfully possessed a firearm in violation of § 922(g)(1). Anderson does
not dispute his prior felony convictions or that the gun was transported
in interstate commerce.
For these reasons the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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