United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1763

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Jason Lee Harris, *

* [UNPUBLISHED]

Appellant. *

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Submitted: September 23, 2011

 Filed: October 28, 2011

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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Jason Harris appeals fromthe judgment entered by the district court following 1

Harris’s conviction by a jury for being a felon in possession of a firearm and

ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Harris argues that

the evidence wasinsufficient to support the conviction. We affirm the conviction but

remand for further proceedings.

The Honorable David Gregory Kays, United States District Judge for the

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Western District of Missouri.
I.

At approximately 3:00 a.m. on April 5, 2010, Stacey Hudlemeyer heard yelling

between her son and Cody Chavez. She followed her son as he exited their home and

saw Chavez and another man standing together outside. Hudlemeyer described the

other man, later identified as Harris, as approximately five feet five inches tall with

closely shaven blonde hair and wearing a baggy red shirt. 

After Chavez stated that the two men had a gun, Hudlemeyer ordered her son

to retreat to the front porch while she stood in the driveway. Hudlemeyer stood only

a few feet away from Harris and Chavez for five to ten minutes while the argument

between her son and Chavez continued. After threatening to shoot both Hudlemeyer

and her son, Chavez told Harris to reveal the gun, whereupon Harris pulled out a

black handgun and fired one shot near Hudlemeyer’s head. After the two men left,

Hudlemeyer called the St. Joseph Police Department. The responding officer found

a shell casing head-stamped “Winchester .40 caliber S&W” in Hudlemeyer’s

driveway.

Some two hours later, Officers Gary Hickok and Aaron King encountered

Jason Harris and another man exiting the back door of a house. Hickok testified that

the two men immediately stopped and took a few steps backward when they saw the

uniformed officers. Harris leaned against the door so that his right arm and shoulder

were hidden behind it. Hickok then heard a loud thump. Believing that Harris had

dropped something, he ordered the men out of the house. Hickok discovered a .40-

caliber handgun loaded with four bullets in the magazine and one in the chamber. 

Officer King supervised Harris and the other man while Hickok secured the

gun found behind the door. King testified that Harris attempted to throw a handgun

magazine away from his person after stepping out of the house. King described

Harris as having a closely shaven haircut and wearing a red shirt.

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Harris was charged both with being a felon in possession of a firearm and of

being a felon in possession of ammunition. He stipulated that he was a convicted

felon and that the handgun and ammunition had traveled in interstate commerce. 

Following a two-day trial, during which Hudlemeyer identified himasthe person who

had fired the handgun in her presence, the jury found Harris guilty on both counts. 

The district court sentenced Harris to a 112-month term of imprisonment on each

count to be served concurrently.

II.

Harris contends that the government failed to prove that he knowingly

possessed a firearm and ammunition. He argues that the evidence presented was

circumstantial, contradictory, and insufficient as a matter of law to support a finding

of guilt. “We review the sufficiency of the evidence de novo, viewing the evidence

in the light most favorable to the government, resolving evidentiary conflicts in the

government’s favor, and drawing all reasonable inferences in favor of the jury’s

verdict.” United States v. Payton, 636 F.3d 1027, 1042 (8th Cir. 2011) (quoting

United States v. Kieffer, 621 F.3d 825, 832 (8th Cir. 2010)). We do not weigh the

evidence or assess the credibility of the witnesses, and we reverse a conviction only

if no reasonable jury could have found the defendant guilty. United States v. Butler,

594 F.3d 955, 964 (8th Cir. 2010) (citing United States v. Santana, 524 F.3d 851, 853

(8th Cir. 2008)). 

To convict Harris of being a felon in possession of a firearm or ammunition,

the government was required to prove beyond a reasonable doubt (1) that Harris

previously was convicted of a crime punishable by a termof imprisonment exceeding

one year, (2) that he knowingly possessed a firearm or ammunition, and (3) that the

firearm and ammunition had been in or affected interstate commerce. Id. (citing

United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004)). In light of Harris’s

stipulation, only the element of knowing possession was in dispute.

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We conclude that, as recounted above, the evidence was sufficient to support

the jury’s finding that Harris had knowingly possessed a handgun and ammunition. 

Because both the possession of the handgun and the ammunition occurred at the same

time, however, the two counts of conviction should have been merged and Harris

should have been sentenced on only one count. See United States v. Richardson, 439

F.3d 421, 422 (8th Cir. 2006) (en banc) (per curiam) (holding that separate

convictions arising out of a single act under § 922(g) are multiplicitous).

III.

The conviction is affirmed and the case is remanded to the district court with

instructions to vacate the sentence, merge the two counts of conviction into one

count, and resentence Harris based on a single conviction.

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