The Honorable Henry Woods, United States District Judge for 1

the Eastern District of Arkansas.

 Any person who violates § 922(g) and has three previous 2

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).

_____________

No. 95-3428

_____________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Gary D. Anderson, *

*

Appellant. *

__________

Submitted: February 13, 1996

 Filed: March 18, 1996 

__________

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

__________

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 to 235 months imprisonment 1

as a career offender. Anderson appeals from the judgment of conviction

2

on the basis that there was insufficient evidence to support it. We

affirm. 
2

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
3

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
4

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,
5

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"). 
6

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.