### 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 i n 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 convicte d of one, and was sentenced by the district court to 235 months imprisonment 1
as a c areer offender. Anderson appeals from the judgment of convictio n 2
on the basis that there was insufficient evidence to support it. W e affirm.

### 2 Anderson was convicted of Count II which alleged possession of a RG Indust ries, Model RG-31, .38 caliber revolver; the other counts allege d 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 i ndividuals testified at trial. Anderson's nephew, Justin, and Justin's friend, Michael, testified that the y stole a RG .38 revolver, a Smith and Wesson .4 4 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 t hat they gave Anderson four of these guns, including a RG .38 revolver anda .44 chrome pistol. Anderson told Michael that he could probably sell the .38 revolver for $100.

Brandon S mith testified that while he was at Anderson's home i n 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 Smit h and Wesson .44 chrome pistol while he was there and that he took the .38 revolver from Anderson and sold it. He later lef t the proceeds of the sale unde r a jar in Anderson's house because Anderson was gone when Smit h returned with the money. The owner of the O K Car-ral, Roy Wi lcox, testified that five of his guns had been stolen, including a Smith and Wesson .44 chrome pistol and a RG .38 revolver whi ch 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 reas onable 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 State s v. Ali , 63 F.3d 710, 717 (8th Cir. 1995). In reviewing the evidence, we must draw all reasona ble inferences in the government's favor and view it in the light most favorable to the prosecution. Id. The evidence need no t exclude every reasonable hypothesis of innocence, and we may not disturb the conviction if the evidence rationally supports two conflictin g hypotheses. United States v. Johnson , 18 F.3d 641, 645 (8th Cir. 1994).

To convic t Anderson under 18 U.S.C. § 922(g)(1), the government had to show b eyond a reasonable doubt that (1) he had been convicted of a felony; 2) he thereafter possessed a firearm; and (3) the firearm ha d traveled in or affected interstate commerce. See U.S. v. Eldridge , 98 4 F.2d 943, 946 (8th Cir. 1993). Possession may be either actual o r cons tructive. Id. Constructive possession exists when a person ha s ownership, dominion, or actual control over the contraband. Id.

Anderson contends that the government failed to prove that h e possessed a firearm. Although Justin and his friend testified that they sto le the .38 revolver from a car lot and gave it to him, their stor y should be discounted he says because he was found not guilty on the other
coun t about which the two boys testified. Anderson also argues tha t Brand on Smith cannot be believed because he is on parole and therefor e motivated to please t he authorities. Finally, Anderson points to his own testimony that he never possessed the .38 revolver and that of his wife an d brother that they never saw him with a gun.

It is not our province on appeal to "reweigh the evidence or judg e the cr edibility of witnesses when reviewing the sufficiency of th e evidence." United St ates 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 witnes s credibility. See , e.g. , United States v. Smith , 49 F.3d 475, 478 (8th Cir
. 1995) (jury may credi t testimony of person who had been arrested with the defendant and had allegedly smoked crack the night of the incident); Unite d 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. Will iams , 897 F.2d 1430, 1432 (8th Cir. 1990) (affirming § 922(g)(1) conviction based on officer's testimony despite conflictin g testimony from another officer).

Her e, there was sufficient circumstantial evidence to show tha t Anderson had either actual or constructive posse ssion 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 pisto l and a .38 revolver. Anderson said he could sell the latter for $100
. Smith t estified that Anderson gave him the .38 revolver at Anderson' s house, told him it was "hot," and that he sold the gun and left th e proceed s in Anderson's home. Smith also stated that he saw a Smith an d Wesson .44 pistol in Anderson's home.

As tri er of fact, the jury had the best opportunity to observe th e witness es' facial expressions, attitudes, tone of voice, reactions t o questio ns, and other behavior. See Nururdin , 8 F.3d at 1194. The jur y deci ded to credit the prosecution testimony over that offered by th e defe ndant, and we will not second-guess its decision. The fact tha t Anderson was acquitted on another count about wh ich two of the prosecution witnesses also testified does not impeach the guilty verdict. The gun s 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 jur y 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 no t basis for review or reversal of conviction).

Anderson also complains that the government never introduced th e weapon that he was alleged to have possessed and there was no testimony by the car l ot owner whose .38 revolver had been stolen as to its seria l number or identifying marks.

Under § 922(g), the government was required to prove that Anderso n poss essed a "firearm" within the meaning of § 921(a)(3), not that h e possessed the .38 revolver which was alleged in the indictment. See Unite d St ates v. Jones , 16 F.3d 487, 490 (2nd Cir. 1994) (firearm unde r § 921(a)(3) includes "any weapon . . . which wil l 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 r evolver, proof that defendant carried any firearm was sufficien t because the specific type of firearm was not an element of the offense).

Moreover, proof that a defendant possessed a firearm may b e 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 on e eyewitness adequately established unlawful possession of a firearm); Jones , 16 F.3d at 490 (although eyewitnesses were unfam iliar with the unrecovered gun and had not observed it at close range, thei r testimony was sufficient to support jury findi ng 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 weapo n does not prevent conviction of a firearm offense").

### 6 Although the .38 revolver was not introduced at the trial in thi s case, there was considerable circumstantial evidence that Anderso n possessed it. Three witnesses testified that th ey saw Anderson with a .38 revolver and also handled it themselves. Two witnesses stated that they gave Anderson a Smith and Wesson .44 chrome pist ol and a .38 revolver they st ole from a car lot. The car lot owner testified that both his .3 8 revolver and a Smith and Wesson .44 chrome pistol were stolen at the same tim e. Brandon Smith testified that he saw a .44 chrome pistol i n Anderson's home. Viewing t he 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 Anderso n 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.