### The Honorable Lawrence L. Piersol, United States District 1 

### Judge for the District of South Dakota. _____________ No. 96-1850

_____________ United States of America, * * Plaintiff - Appellee, * Appeal from the United States * District Court for the v. * District of South Dakota. * Mike Smith, * * Defendant - Appellant. *

_____________ Submitted: July 11, 1996 Filed: January 3, 1997

_____________ Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge. A jury found Mike Smith guilty of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (1994). Smith appeals hi s conviction , challenging the district court's response to a jury question 1 and its denial of Smith's motions for a judgment of acquittal. We affirm.

I.

Mike Smit h is a felon and was on supervised release on August 12 , 1995. That morning, he drove his father's picku p to the town of Parmelee, South Dakota. Smith flagged down Officer Hermus Lone Dog, a police office r for the Rosebud Sioux Tribe. Officer Lone

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Dog stopped and spoke to Smith and noticed signs of intoxication. Smith told the officer he had been drinking.

Of ficer Lone Dog placed Smith under arrest for driving under th e influence of alcohol. When Smith resisted Officer Lone Dog's attempt to handcuff him, the officer summoned help from Officer Kevin Swalley. The two officers handcuffed Smith and placed him in the back seat of the patro l
car. While being handcuffed, Smith said, "I'm going. I'm going back. " (Tr. at 25.)

Officer S walley proceeded to move Smith's pickup off the road where it was blocking traffic, so that it could be inv entoried and towed. As he moved the seat forward to accommodate his stature, Officer Swalley observe d the butt end of a 30- 30 caliber rifle lying behind the seat and a red box in the pickup door that contained 30-30 caliber rifle bullets. He tol d Officer Lone Dog about his observations, and Officer Lone Dog then took th e weapon and ammunition from the pickup back to his patrol car. Smith becam e quit e agitated when he saw the firearm and the ammunition, and bega n knocking his head aga inst the cage in the patrol car and kicking the rear window. He said, "I know I'm going back, I'm on [f]ederal probation. " ( Id. at 33-34.)

Smith was charged with possession of a firearm by a felon, i n violati on of 18 U.S.C. § 922(g)(1). The case proceeded to trial, and a jury r eturned a guilty verdict. Smith twice moved for a judgment o f acquittal, but the district court denied both motions. Smith appeals.

II.
Under 18 U.S.C. § 922(g)(1), a perso n "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" may not possess any firearm or ammunition. Smit h argues that the district court erred in denying his motions

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for acquittal. He claims there was insufficient evidence to establis h beyond a reasonable doubt that he knowingly possessed the rifle.

Our standard of review on this issue is quite narrow. United States v. Cunningham , 83 F.3d 218, 222 (8th Cir. 1996). "We review the denial of a motion for judgment of acquittal based upon sufficiency of the evidence by v iewing the evidence in the light most favorable to the verdict. " United States v. Johnson , 56 F.3d 947, 956 (8th Cir. 1995). We give the govern ment the benefit of all the reasonable inferences that coul d logically be drawn from the evidence. Cunningham , 83 F.3d at 222. We mus t uphold t he verdict if the evidence so viewed is such that "there is a n interpretation of the evidence that would allow a reasonable-minded jury to fi nd the defendant guilty beyond a reasonable doubt." Id. (quotin g United States v. Whit e , 81 F.3d 80, 82 (8th Cir. 1996)). "The verdict may be based in whole or in part on circumstantial evidence." United States v. Alvarado-Sandoval , 997 F.2d 491, 493 (8th Cir. 1993).

The government put on several witnesses to prove its case. Th e government first called Smith's sister, Mary Olg uin, as a hostile witness. Olguin testified that she owned the 30-30 rifle and that it had bee n hanging on a wall in her parents' house for several years. Olguin said sh e had pla ced it in the pickup during the first week of August without he r father's knowledge. She said the rifle did not work, and she wanted her father to take it to Valentine, Nebraska, to be fixed.
Smith's father also testified. He stated that the only people living in his ho me on August 12, 1995, besides himself, were his wife, hi s daughter Kathleen who was disabled, and Smith. Smith's father said that he had not placed the rifle in the pickup and that his daughter Kathleen was incapable of doin g so. He told the jury he does not own any guns and had not bought any bullets in several

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years. He also testified that he does not allow anyone to drive his picku p unles s he is present, but Smith has a key that fits the ignition of th e pickup.
Finally, Smith's mother testified. She stated she had last seen the rifle hanging on the wall of her home on August 10, 1995. She testified,
as h er husband had, that her daughter Kathleen would be incapable o f placing the rifle in the pickup. Mrs. Smith also testified that she had not placed the rifle in the pickup, has never bought any bullets, and had
never seen the bullets the officers found in the pickup. She told the jur y that she and her husb and normally took their car, rather than the pickup, to shop in Valentine. They rarely used the pickup.

The jury could reasonably have inferred that Olguin fabricated he r story. In contrast t o her claim that she had put the rifle in the pickup during the first weekof August, her mother testified to seeing the rifle hanging on the wall as late as August 10. Olguin's alleged reason fo r putt ing the rifle in the pickup is also suspect, because her parent s normallytake their car, instead of their pickup, to shop in Valentine

. The jury reasonably could have concluded that Olguin was attempting t o cover for her brother and therefore could have disregarded Olguin' s testi monyas incredible. We would not disturb such a credibilit y determination. See United States v. Martinez , 958 F.2d 217, 218 (8th Cir

. 1992) ("It is the sol e province of the jury to weigh the credibility of a witness.").
Considering the remaining evidence, the jury could have believe d Smith's parents' testimony that neither they nor their daughter Kathleen had moved the rifle from the wall of their home to their pickup. The jury could then have found that Smith was the only person who had access both to his father's picku p and to the rifle, and it was he who had placed the rifle and the bullets in the pickup. Having reached this finding, it is in deed a small logical step to conclude that Smith knowingly ha d constructive

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possessio n of the rifle at the time he was arrested. Smith's agitatio n when he saw that the officers had found the rifle and the ammunition and his statements about having "to go back" support this conclusion.
Viewing the evidence in this light, we find that it was sufficien t to support the verdict. The district court did not err in denying Smith' s motions for a judgment of acquittal.

Smi th's second argument on appeal concerns the district court' s response to a question the jury posed regarding the elements o f section 922(g)(1). During jury deliberations, t he jury sent a note to the dis trict court, asking: "Does constructive possession mean you have t o know that an item is in your presence in order to possess that item[?]". (Suppl. Tr. at 2.) The district court prepared the following answer: "In response to the question from the jury, although you are to consider all of the instructions, you might consider Instruction number 16 an d Instruction number 15A." ( Id. ) The court then solicited comments fro m both parties regarding the proposed response.
Defense counsel objected and submitted the following response: "Yes,
a person must know that he has an item in his presence to make i t constructive possession." ( Id. at 3.) The district court rejected defens e counse l's proposal, fearing that it might cloud the definition o f constructive possession already submitted to the jury in Instruction 16. The court was concerned that defense counsel's response would force th e jury to wrestle with two different definitions, one of which is mor e restr ictive than the other. The court therefore decided to answer th e jury's question with the court's originally proposed statement, referring the jury to the instructions as a whole and specifically to instructions Number 16 and Number 15A. Smith contends this decision was an abuse o f discretion.

### 6 When responding to a jury's explicit request for supplementa l instr uctions, the trial judge must take great care "to insure that an y suppl emental instructions are accurate, clear, neutral, and non

prejudicia l." United States v. Skarda , 845 F.2d 1508, 1512 (8th Cir

. 1988). "The response to a jury request for supplemental instructions is a matter within the sound discretion of the dist rict court." Id. (quoting United States v. White , 794 F.2d 367, 370 (8th Cir. 1986)).

The di strict court in this case did not abuse its discretion. Th e
cou rt referred the jury members to the instructions that answered thei r questi on, including Instructions Number 16 and Number 15A. Instructio n Number 16, which was patterned after Eighth Circ uit Model Jury Instruction No. 8.02, accurately stated the legal definitions of the various types of

### Instruction Number 16 stated: 2 

### The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. Whenever the word "possession" has been used in these instructions it includes actual as well as constructive possession and also sole as well as joint possession

. (Appellee's Adden. at 2.)
7 possession, including constructive po ssession. See United States v. Ali , 2 63 F.3d 710,

### Instruction Number 15A was incorporated into the jury 3 

### instructions at Smith's request. It was taken from the Ninth Circuit Pattern Jury Instructions, see 9th Cir. Crim. Jury Instr. 5.06 (1995), and is the instruction recommended by the Committee on Model Criminal Jury Instructions for the Eighth Circuit for situations when an instruction on the "knowingly" issue is necessary, see Manual of the Model Criminal Jury Instructions for the District Courts of the Eighth Circuit § 703 commentary at 432 (1996). Instruction Number 15A stated:

An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake, or accident. The government is not required to prove that the defendant knew that his acts or omissions were unlawful. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly. (Appellee's Adden. at 1.)

8 716 (8th Cir. 1995) (noting our frequent approval of this instruction)

. This instruction explicitly requires a determination that the defendan t intended to exercise dominion over something in order to find that he had constructive possessi on of it. Reference to this instruction should have
answer ed the jury's question regarding the required mental state fo r constru ctive possession. In addition, Instruction Number 15A furthe r clarified any ambiguity the jury might have had regarding the element of "knowing ly." The court's reference to these two instructions wa s 3 responsive to the jur y's question and gave the jury an accurate statement of the law. We see no abuse of discretion in th e district court's refusal to risk confusion with anot her, slightly different instruction.

III.
Accordingly, we affirm the judgment of the district court.

### 9 A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.