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 his

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 Smith is a felon and was on supervised release on August 12,

1995. That morning, he drove his father's pickup to the town of Parmelee,

South Dakota. Smith flagged down Officer Hermus Lone Dog, a police officer

for the Rosebud Sioux Tribe. Officer Lone
2

Dog stopped and spoke to Smith and noticed signs of intoxication. Smith

told the officer he had been drinking.

Officer Lone Dog placed Smith under arrest for driving under the

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 patrol

car. While being handcuffed, Smith said, "I'm going. I'm going back."

(Tr. at 25.)

Officer Swalley proceeded to move Smith's pickup off the road where

it was blocking traffic, so that it could be inventoried and towed. As he

moved the seat forward to accommodate his stature, Officer Swalley observed

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 told

Officer Lone Dog about his observations, and Officer Lone Dog then took the

weapon and ammunition from the pickup back to his patrol car. Smith became

quite agitated when he saw the firearm and the ammunition, and began

knocking his head against 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, in

violation of 18 U.S.C. § 922(g)(1). The case proceeded to trial, and a

jury returned a guilty verdict. Smith twice moved for a judgment of

acquittal, but the district court denied both motions. Smith appeals. 

II.

Under 18 U.S.C. § 922(g)(1), a person "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. Smith argues that the district

court erred in denying his motions
3

for acquittal. He claims there was insufficient evidence to establish

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 viewing 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

government the benefit of all the reasonable inferences that could

logically be drawn from the evidence. Cunningham, 83 F.3d at 222. We must

uphold the verdict if the evidence so viewed is such that "there is an

interpretation of the evidence that would allow a reasonable-minded jury

to find the defendant guilty beyond a reasonable doubt." Id. (quoting

United States v. White, 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. The

government first called Smith's sister, Mary Olguin, as a hostile witness.

Olguin testified that she owned the 30-30 rifle and that it had been

hanging on a wall in her parents' house for several years. Olguin said she

had placed it in the pickup during the first week of August without her

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 home on August 12, 1995, besides himself, were his wife, his

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 doing so. He told the jury he does not own any guns and

had not bought any bullets in several
4

years. He also testified that he does not allow anyone to drive his pickup

unless he is present, but Smith has a key that fits the ignition of the

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 her husband had, that her daughter Kathleen would be incapable of

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 jury

that she and her husband 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 her

story. In contrast to her claim that she had put the rifle in the pickup

during the first week of August, her mother testified to seeing the rifle

hanging on the wall as late as August 10. Olguin's alleged reason for

putting the rifle in the pickup is also suspect, because her parents

normally take their car, instead of their pickup, to shop in Valentine.

The jury reasonably could have concluded that Olguin was attempting to

cover for her brother and therefore could have disregarded Olguin's

testimony as incredible. We would not disturb such a credibility

determination. See United States v. Martinez, 958 F.2d 217, 218 (8th Cir.

1992) ("It is the sole province of the jury to weigh the credibility of a

witness.").

Considering the remaining evidence, the jury could have believed

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 pickup 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

indeed a small logical step to conclude that Smith knowingly had

constructive
5

possession of the rifle at the time he was arrested. Smith's agitation

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 sufficient

to support the verdict. The district court did not err in denying Smith's

motions for a judgment of acquittal.

Smith's second argument on appeal concerns the district court's

response to a question the jury posed regarding the elements of

section 922(g)(1). During jury deliberations, the jury sent a note to the

district court, asking: "Does constructive possession mean you have to

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 and

Instruction number 15A." (Id.) The court then solicited comments from

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 it

constructive possession." (Id. at 3.) The district court rejected defense

counsel's proposal, fearing that it might cloud the definition of

constructive possession already submitted to the jury in Instruction 16.

The court was concerned that defense counsel's response would force the

jury to wrestle with two different definitions, one of which is more

restrictive than the other. The court therefore decided to answer the

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 of

discretion.
6

When responding to a jury's explicit request for supplemental

instructions, the trial judge must take great care "to insure that any

supplemental instructions are accurate, clear, neutral, and nonprejudicial." 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 district court." Id. (quoting

United States v. White, 794 F.2d 367, 370 (8th Cir. 1986)). 

The district court in this case did not abuse its discretion. The

court referred the jury members to the instructions that answered their

question, including Instructions Number 16 and Number 15A. Instruction

Number 16, which was patterned after Eighth Circuit 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 possession. 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 defendant

intended to exercise dominion over something in order to find that he had

constructive possession of it. Reference to this instruction should have

answered the jury's question regarding the required mental state for

constructive possession. In addition, Instruction Number 15A further

clarified any ambiguity the jury might have had regarding the element of

"knowingly." The court's reference to these two instructions was

3

responsive to the jury's question and gave the jury an accurate statement

of the law. We see no abuse of discretion in the district court's refusal

to risk confusion with another, 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.