* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-31122 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. MICKEY MARCEL PATT Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:05-CR-60047-1
Before SMITH, STEWART and SOUTHWICK, Circuit Judges. PER CURIAM: * Mickey Marcel Patt appeals his jury trial conviction for being a felon in possession of a firearm. Patt was sentenced to a term of imprisonment of 115 months. Patt argues that the Government failed to prove that he had knowledge ofthe firearms concealed in the console ofhisvehicle because the Government’s
own evidence rebutted its theory ofthecase. He contends that the Government’s evidence reflected that he was in prison at the time the customized console was United States Court of Appeals

Fifth Circuit 

### F I L E D December 15, 2008 Charles R. Fulbruge III ClerkNo. 07-31122

2 placed in the car and, thus, the testimony that he ordered the work done was incredible. He further contends that his passenger, Roger Fontenette, who had drugs on his person at the time ofthe stop, was the likely owner ofthe firearms. Patt also asserts that his counsel was ineffective because he was acting under
a conflict of interest due to his prior representation of Fontenette and counsel failed to argue that the guns belonged to his former client. Where, as here, a defendant makes a timely motion for acquittal, this court will uphold a jury’sverdict ifa reasonable trier offact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt. U nited States v. Delgado, 256 F.3d 264, 273 (5th Cir. 2001). The evidence, both direct and circumstantial, is viewed in the light most f avorable to the jury’s verdict; all credibility determinations and reasonable inferences are to be resolved in favor ofthe verdict. U nited Statesv. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995). To establish a violation of 18 U.S.C. § 922(g)(1), the Government must prove that the defendant (1) has been convicted of a felony, (2) possessed a firearm in or affecting interstate commerce, and (3) knew that he was in possession of the firearm. United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995). The only disputed element at trial was whether Patt knowingly possessed the firearms. Possession ofa firearm may be actual or constructive, and may be proven by circumstantial evidence. U nited States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006). As Patt did not have actual possession of the firearms, the Government had to prove “ownership, dominion, or control over the contraband itself or dominion or control over the [location] in which the contraband is concealed.” U nited Statesv. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993) (internal quotation marks and citation omitted). The evidence must at least support a plausible inference that the defendant had kno wledge of and access to the
weapon. I d. A jury, as trier of fact, may choose to accept or reject a witness’sNo. 07-31122

3 testimony in whole or part, even if there is some conflict in the testimony. United States v. Pruneda-Gonzalez, 953 F.2d. 190, 196 (5th Cir. 1992). A jury’s
credibility determination can only be disturbed if the testimony is factually impossible, which would render it incredible as a matter of law. United States v. Landerman, 109 F.3d 1053, 1067 (5th Cir. 1997) Theevidence raised a plausible inference that Patt exercised dominion and control over the firearms found in the Cadillac’s console. It was undisputed that Patt was the owner ofthe vehicle on the date ofthe traffic stop and that he had been using the vehicle for one to two months before that date. The evidence also showed that the broken seal on thewooden panel would have been obvious tothe driver ofthe vehicle and, thus, thejury could have inferred that Patt was aware of the altered console and that he had used it to conceal the firearms. Further, there was plausible evidence that Patt had ordered the custom work performed on the vehicle. During direct examination by the Government, Darlene and Amos Fruge, Jr. both testified that Patt had contracted for the customizing job, including the building of the console, and had given detailed instructions on how the work was to be performed. Fruge’s Jr.’s grand jury testimony also reflected that he had done the work at Patt’s detailed direction. Neither Fruge, Jr. nor Darlene gave a credible explanation for the change in their testimony when they were called to testify for the defense. The jury was free to accept their initial testimony as credible. Insofar as Patt argues that the witnesses’ testimony was incredible as a matter oflawbecause hewas incarcerated when the work was done, “[t]estimony is incredible as a matter of law only if it relates to facts that the witness could not possibly have observed or toeventswhich could not have occurred under the laws of nature.” U nited States v. Green, 180 F.3d 216, 221-22 (5th Cir. 1999) (internal quotations and citations omitted). The Government presented evidence that raised a plausible inference that Patt was released on parole at the time that the customized work was done on the vehicle. The testimony that PattNo. 07-31122

4 personally ordered the work to be done was an event that could have occurred and, thus, it was not incredible testimony as a matter of law. Insofar as Patt argues that his counsel was deficient in his representation, the general rule in this circuit is that a claim of ineffective assistance ofcounsel cannot be resolved on direct appeal when the claim has not been raised before the district court since noopportunity existed todevelop the record on the merits
o f the allegations.” U nited States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). Patt’s argument is not reviewable on direct appeal in this case because the record is not sufficiently developed on the issue. We decline to address this claim of ineffective assistance on direct appeal without prejudice to Patt’s right to bring it in a 28 U.S.C. § 2255 proceedi ng. See United States v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008). Patt’s conviction is AFFIRMED.