This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10TH CIR. R. 36.3.

After examining the briefs and appellate record, this panel has determined **

unanimously that oral argument would not materially assist the determination of

this appeal. See FED. R. APP. P. 34(A)(2); 10TH CIR. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

May 16, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee, No. 05-6190

v. (W. D. Oklahoma)

TOMMY RUIZ,

Defendant-Appellant.

 (D.C. No. 04-CR-208-F)

ORDER AND JUDGMENT

*

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.**

Tommy Ruiz was convicted after a jury trial of one count of possessing a

firearm after having been convicted of a crime punishable by imprisonment for a

term exceeding one year, a violation of 18 U.S.C. § 922(g)(1). The district court
-2-

sentenced him to 92 months’ imprisonment, followed by three years’ supervised

release.

In this appeal, Mr. Ruiz argues that the evidence was insufficient to support

the § 922(g)(1) charge. We disagree and therefore affirm his conviction.

I. BACKGROUND

On August 2, 2004, Sergeant Jim Lilly, an investigator with the Oklahoma

County Sheriff’s office, attempted to serve an arrest warrant on a fugitive named

Tiffany Forester. Sergeant Lilly had received information indicating that Ms.

Forester might be found at a house in Oklahoma City where Mr. Ruiz was living. 

Sergeant Lilly and several other officers arrived at the house around 7:30 or 8:00

p.m. Bonnie Howard, who was Mr. Ruiz’s former sister-in-law, answered the

door. She told Sergeant Lilly that no one else was there, and she gave him

permission to look for the fugitive.

 While conducting a protective sweep, Reserve Deputy Jason Ruegge

found a locked room in the northeast part of the house. Deputy Ruegge heard

voices inside the room, but he could not determine whether they came from a

television set or from other people.

According to Sergeant Lilly, Ms. Howard told him that she did not have a

key to the locked room and did not have access to it. She added that Mr. Ruiz

was the only person with access to the room.
-3-

While the officers were continuing the protective sweep, Mr. Ruiz arrived

at the house. He gave Sergeant Lilly a key to the locked room, and Sergeant Lilly

opened the door. Inside a cabinet above a closet, Sergeant Lilly found the firearm

that is the subject of this prosecution—a Glock pistol with .40 caliber ammunition

loaded in the magazine. According to Sergeant Lilly, Mr. Ruiz told him that a

friend had left the pistol there. Sergeant Lilly responded that he did not intend to

arrest Mr. Ruiz, but he did seize the pistol. Officers obtained a latent fingerprint

from the pistol, but later discovered that it did not belong to Mr. Ruiz. 

Several other witnesses testified at trial about Mr. Ruiz’s connection to the

pistol. Jeff Reed, a detective with the Oklahoma City Police Department, stated

that in the course of investigating a drive-by shooting on the following day

(August 3, 2004), he interviewed Mr. Ruiz. Mr. Ruiz told him that officers had

seized a Glock .40 caliber pistol and that he had obtained it from an ex-gun dealer

in Norman, Oklahoma. Detective Reed interviewed Mr. Ruiz again on September

9, 2004. This time, Mr. Ruiz stated that a friend had obtained the pistol and that

the bedroom where it had been found belonged to his father, not him.

Karen Hess, a special agent with the Bureau of Alcohol, Tobacco, and

Firearms testified that she interviewed Mr. Ruiz on October 24, 2004, after he had

been arrested for this firearm offense. She stated that Mr. Ruiz told her that it

was Ms. Howard who had obtained the pistol but that he did not know that Ms.

Howard had it. He added that the bedroom where the pistol had been found
-4-

belonged to his father. However, Mr. Ruiz said, his father would give him the

key when his father went to work.

At trial, Ms. Howard testified in Mr. Ruiz’s defense. She told the jury that

the room in which the pistol was found belonged to Mr. Ruiz’s father and that

she, Mr. Ruiz, and Mr. Ruiz’s father all had keys to it. She explained that she had

obtained the pistol from Andre Williams, the father of her baby. She had put it in

the cabinet but did not tell Mr. Ruiz that she had done so. She only told Mr. Ruiz

about the pistol as the officers were searching the room. 

II. DISCUSSION

Mr. Ruiz now argues that the evidence is insufficient to support his

conviction under 18 U.S.C. § 922(g)(1). He maintains that the evidence raises

only a suspicion of guilt.

We engage in de novo review of the sufficiency of the evidence supporting

a conviction. United States v. Bowen, 437 F.3d 1009, 1014 (10th Cir. 2006). 

We consider whether, “taking the evidence–both direct and

circumstantial–together with reasonable inferences to be drawn therefrom–in the

light most favorable to the government, a reasonable jury could find [Mr. Ruiz]

guilty beyond a reasonable doubt.” United States v. Allen, 235 F.3d 482, 492

(10th Cir. 2000) (internal quotations omitted). “We do not question the jury’s

credibility determinations or its conclusions about the weight of the evidence.” 
-5-

Id. “The evidence necessary to support a verdict need not conclusively exclude

every other reasonable hypothesis and need not negate all possibilities except

guilt. Instead, the evidence only has to reasonably support the jury’s finding of

guilt beyond a reasonable doubt.” United States v. Pulido-Jacobo, 377 F.3d 1124,

1129 (10th Cir. 2004) (internal quotation marks and citation omitted).

To prove a violation of § 922(g)(1), the government must establish the

following elements beyond a reasonable doubt: (1) that the defendant was

previously convicted of a felony; (2) that the defendant thereafter knowingly

possessed a firearm or ammunition; and (3) that the possession was in or affecting

interstate commerce. United States. v. Colonna, 360 F.3d 1169, 1178 (10th Cir.

2004). Here, Mr. Ruiz’s has disputed only the second element—knowing

possession. 

“Possession” under § 922(g)(1) may be actual or constructive. See United

States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994). “[C]onstructive possession

exists where the defendant has the power to exercise control or dominion over the

item.” United States v. Lopez, 307 F.3d 1207, 1212 (10th Cir. 2004). In most

cases, “[d]ominion, control, and knowledge . . . may be inferred when a defendant

has exclusive possession of the premises” where the object is found. Mills, 29

F.3d at 549.
-6-

In cases of joint occupancy, the government “must present evidence to

show some connection or nexus between the defendant and the firearm or other

contraband.” Id. “While caution must be taken that the conviction not be 

obtained by piling inference on inference, an inference of constructive possession

is reasonable if the conclusion flows from logical and probabilistic reasoning.”

United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999) (internal

quotation marks omitted). 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 917, 922 (10th Cir. 2002) (internal quotation marks

omitted); see also Mills, 29 F.3d at 549-50.

Applying these standards, we conclude that the evidence is sufficient to

permit the jury to infer that Mr. Ruiz had knowledge and access to the Glock

pistol and therefore constructively possessed it. The jury heard evidence that Mr.

Ruiz had admitted that he had obtained the pistol from a Norman gun dealer.

Although the jury heard contrary statements–both from Ms. Howard and from Mr.

Ruiz himself–we may not second-guess its decision about the weight of this

evidence. Moreover, even if it did not believe that Mr. Ruiz owned the pistol, it

could still reasonably conclude, from testimony about his having a key to the

room and knowing where the pistol was located, that he had “knowledge of and

access to the weapon.” Hien Van Tieu, 279 F.3d at 922. 
-7-

III. CONCLUSION 

Accordingly, we AFFIRM Mr. Ruiz’s conviction.

Entered for the Court,

Robert H. Henry

United States Circuit Judge