1 The Honorable Nanette Laughrey, United St ates District Judge for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 04-4183

___________ United States of America, *
* Appellee, *
* v. * Appeal from the United States * District Court for the Jerry Dean Urick, * Western District of Missouri
* Appellant. *

___________ Submitted: June 23, 2005 Filed: December 9, 2005 (Corrected 12/21/05)

___________ Before ARNOLD, McMILLIAN and COLLOTON, Circuit Judges.

___________ McMILLIAN, Circuit Judge Jerry Dean Urick (appellant) appeals from a final judgment entered in the United States District Court 1 for the Western District of Missouri, upon a jury verdict, finding him guilty of being a felon in possessi on of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district c ourt sentenced appellant under the federal sentencing guidelines to 204 months imprisonm ent, 3 years supervised release and a special assessment of $100.00. For reversal, appellant argues that the district court erred in: (1) holding there was sufficient evidence to support the jury’s finding that-2- appellant knowingly possessed the firearms, (2 ) excluding a requested jury instruction defining the term ''knowingly, '' and (3) failing to grant a mistrial after a government witness violated an order in limine and testified that appellant was involved in the manufacture of methamphetamine. For the reasons stated below, we affirm the judgment of the district court.
Background
In 2004, the Grundy County Sheriff’s Department along with the Bureau of Alcohol, Tobacco, and Firearms (ATF) bega n an investigation into the activities of appellant. Based on their investigation, officers obtained a search warrant for appellant’s residence to search for fi rearms and controlled substances. On February 7, 2004, before the execution of the search warrant, appellant and his wife, Tina Urick, called the local sheriff’s depart ment to report a disturbance that occurred earlier in the afternoon in a neighboring town and asked the sheriff’s department to remove a car left in their driveway by a fri end, Carl Marshall. Appellant had been out of town for a few days prior to February 7, 2004, and had onl y returned home about 30 minutes before officers arrived.
Local officers responded and were invite d inside the residence by Tina Urick. The residence was a mobile home with a large addition consisting of a bedroom and a living area. Once inside, the officers coul d see into the bedroom and saw in plain view two firearms, a rifle and a shotgun, by th e side of the bed. The officers contacted the ATF and told appellant a nd his wife that they were being detained. The search warrant was then executed.
During the search of the residence, officers found the two firearms, one on each side of the bed, and ammunition for the shotgun and rifle on the night stands and in other areas of the home. Male clothing wa s also found inside the bedroom where the firearms were located.-3- Appellant was placed under arrest and read his Miranda rights by an ATF agent. Appellant stated that he understood his ri ghts and thought (erroneous ly) that he could possess firearms because he was no longer on probation or parole. Appellant further explained that he had taken the guns away from Carl Marshall on February 2, 2004, and that Marshall had been running around appellant’s residence, acting crazy, with the firearms.
The same ATF agent interviewed appella nt for the second time while en route to the U.S. Marshal's office on February 13, 2004. Again, after he was notified of his Miranda rights, appellant stated that he had moved into the residence after marrying Tina Urick in January 2004.
A federal grand jury indicted appella nt and charged him with one count of being a felon in possession of firearms on or about February 7, 2004, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a )(2). Prior to trial, the district court ruled that evidence about appellant’s alle ged involvement with drugs wa s inadmissible. At trial, however, a deputy of the sheriff’s departme nt testified that he had learned that appellant was ''manufacturing methamphetami ne.'' The district court struck the deputy’s statement and advised the jury to disregard it. The jury later returned a verdict of guilty, and appella nt was sentenced to 204 months imprisonment, 3 years supervised release and a $100 special a ssessment. This appeal followed.

Discussion
A. Sufficiency of Evidence
An appellate court reviews the sufficien cy of the evidence de novo, viewing the evidence in the light most favorable to th e government, resolving any conflicts in the government's favor, and accepting all reasonabl e inferences that support the verdict.-4- United States v. Blaylock , 421 F.3d 758, 772 (8th Cir. 2005). A verdict will be reversed only if no reasonable jury interp reting the evidence could find the defendant guilty beyond a reasonable doubt. Id

. Appellant argues that the evidence introduced at trial was insufficient to sustain a conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) because the government failed to show that he know ingly and intentionally possessed the firearms on or about February 7, 2004.
To obtain a conviction under 18 U.S.C. § 922(g)(1) the government must '''prove beyond a reasonable doubt that (1 ) the defendant has previously been convicted of a crime that was punishable by a term of imprisonment exceeding one year, (2) the defendant knowingly possessed a firearm, and (3) the firearm has been in or has affected interstate co mmerce.'" United States v. Moore , 212 F.3d 441, 445 (8th Cir. 2000) (quoting United States v. Taylor , 122 F.3d 685, 688 (8th Cir. 1997)). Because the parties stipulated to the first and third elements of the offense, the only issue on appeal is whether the defendant knowingly possessed a firearm.
Possession under § 922(g) can be actual or constructive. Id . Constructive possession is established if a person has ownership, domin ion, or actual control over the firearm itself or has dominion over the premises where the firearm is located. While mere physical proximity to a firearm is insufficient for possession, ''knowledge of presence'' combined with ''dominion ove r the premises in which the contraband is concealed'' will amount to constructive possession. United States v. Cruz , 285 F.3d 692, 697 (8th Cir. 2002) (quoting United States v. Johnson , 18 F.3d 641, 647 (8th Cir. 1994)).
Appellant argues that there was in sufficient evidence of constructive possession, specifically dominion over the pr emises. However, appellant himself testified that he had lived at the reside nce since marrying Tina Urick on January 20,-5- 2004, and even listed the premises as his address when filling out a questionnaire at the U.S. Marshal's Office. In addition, hi s personal effects were found in the bedroom near the firearms and appellant further con ceded to sleeping in the bed next to where the firearms were found.
Next, appellant argues that the government failed to prove that he exercised dominion and control over the firearms ata time which was close enough to the date charged in the indictment, or ''on or about February 7, 2004.'' However, the law is clear that the use of the term ''on or about'' in an indictment ''relieves the government of proving that the crime charged occurred on a specific date, so long as it occurred within a reasonable time of the date specified.'' United States v. Duke , 940 F.2d 1113, 1120 (8th Cir. 1991). Here, even though appellant denies posse ssion on February 7, 2004, he admits to having possession of the firearms on February 2, 2004, when he took the firearms away from Marshall. Appellant’s admitted possession of the firearms five days prior is reasonably near the date alleged in the indictment, February 7, 2004. See United States v. Harris , 344 F.3d 803, 805 (8th Cir. 2003) (holding admitted possession one week prior to date alleged in indictment was within scope of the indictment), cert. denied , 540 U.S. 1201 (2004).
B. Jury Instruction
Appellant next argues that the districtcourt erred in refusing to give an instruction defining the term ''knowingly.'' This court reviews a denial of a party’s proposed jury instruction under an abuse of discretion standard. United States v. Lee , 374 F.3d 637, 646 (8th Cir. 2004), cert. denied , 125 S. Ct. 2962 (2005). A reversal, based upon an instructional error, is onl y warranted if the error affected the defendant’s substantial rights. Id

. We have repeatedly held that defendants are not entitle d to instructions on the definition of every word in an instruction. United States v. Lee , 356 F.3d 831, 838-6- (8th Cir. 2003), cert. denied , 541 U.S. 1092 (2004); United States v. Wright , 246 F.3d 1123, 1128 (8 thCir. 2001). Because the term ''know ingly'' is within the ordinary understanding of the lay juro r, United States v. Gary , 341 F.3d 829, 834 (8 thCir. 2003), cert. denied , 540 U.S. 1139 (2004), the district c ourt did not abuse its discretion in refusing appellant’s instruction on this issue.
C. Improper Testimony
Finally, appellant argues that the district court erred in failing to grant a mistrial after a government witness violated an order in limine and testifie d that appellant was involved in the manufacture of methamphetamine . As a general rule, it is within the discretion of the district court to decide whether a trial has been so tainted by prejudicial testimony that a mistrial shoul d be declared and the decision will only be reviewed for an abuse of disc retion. United States v. Encee , 256 F.3d 852, 854 (8th Cir. 2001). In addition, the admission of a prejudicial statement is '''ordinarily cured by striking the testimony and instructing the jury to disregard the remark.''' United States v. Coleman , 349 F.3d 1077, 1087 (8th Cir. 2003) (quoting United States v. Muza , 788 F.2d 1309, 1312 (8th Cir. 1986)), cert. denied , 541 U.S. 1080 (2004). However, even if a curative instruction is given, this court must still determine whether the verdict was ''substantially swayed'' by the prejudicial comment. Id . In making this determination, we must eval uate whether a curative instruction was sufficient in the context of the entire trial, and weigh the prejudice against the strength of the government’s evidence. Id . This court will affirm a conviction, despite the introduction of an inadvertent prejudicial comment, where there was ''substantial evidence'' of guilt. Id

. Although the testimony about methampheta mine was improper, the district court took prompt remedial action to alle viate any possible prejudice by striking the testimony and giving a curative instruc tion immediately after the misconduct occurred. In addition, the deputy’s reference to appellant’s alleged drug involvement-7- was an isolated incident. While appella nt claims that the government elicited testimony about a video monitoring system outside appellant’s house and repeatedly discussed the search warrant for appellant’s residence, the jury never heard of any relationship between appellant ’s alleged drug involvement and the monitoring system or search warrant. Thus, there is no reasonable basis to believe that these references could have improperly tainte d the jury’s deliberation.

Moreover, because there was substantial evidence of appellant's guilt, any error in the failure to declare a mistrial was harmless. As noted previously, the jury saw photographs and heard testimony that demons trated appellant had two firearms in plain view in the bedroom of his residence.
Accordingly, the judgment of the district court is affirmed
COLLOTON, Circuit Judge, concurring.
I concur on the understanding that the court concludes there was sufficient evidence to support a finding that Urick constructively possessed the firearms on February 7, 2004, when they were found nearhis personal effects, next to the bed in which he slept, in the residence that he listed as his address. Ante , at 4-5.

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