1The Honorable James E. Gritzner, United States District Judge for the

Southern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1223 

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United States of America, *

*

Appellee, *

 * Appeal from the United States

 v. * District Court for the

* Southern District of Iowa.

Demarko S. Walker, *

*

 Appellant. *

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Submitted: October 19, 2004

Filed: January 13, 2005

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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.

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RILEY, Circuit Judge.

After a jury convicted Demarko Walker (Walker) of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1), the district court1 entered judgment

and sentenced Walker to 112 months imprisonment. Walker appeals, arguing the

district court erroneously admitted certain testimony at trial, and erroneously denied

Walker’s post-trial motions for judgment of acquittal or for a new trial. We affirm.
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I. BACKGROUND

On May 13, 2003, Officer Chad Cornwell (Officer Cornwell) of the Des

Moines (Iowa) Police Department (DMPD) pulled over a Mercury Grand Marquis

(Mercury) for speeding, for not displaying a front license plate, and for having a

cracked windshield. Officer Cornwell talked with the driver of the Mercury, Otto

Gipson (Gipson), who had no identification and said his driver’s license was

suspended. Officer Cornwell then asked Walker, who was the front-seat passenger

and only other occupant, to identify himself. Walker identified himself as John

Smith, and gave Officer Cornwell a false date of birth and a false social security

number. While Officer Cornwell returned to his police cruiser to check the

information given to him, two other DMPD police officers arrived.

Officer Cornwell informed one of the newly arrived officers, Officer Stewart

Barnes (Officer Barnes), that Gipson was driving on a suspended license, the

passenger may have provided false information, and a beer bottle was on the

floorboard between the driver and passenger. Officer Barnes approached the Mercury

and asked Gipson to step out of and behind the vehicle. While another officer kept

Gipson under observation at the rear of the vehicle, Officer Barnes talked to Walker,

who remained in the passenger seat. Officer Barnes asked Walker a few questions,

and Walker still did not provide his real identity, age or date of birth. Officer Barnes

removed the beer bottle from the Mercury and informed Walker there was a problem.

Officer Cornwell then learned Walker had given false information, informed

Officer Barnes of this finding, and approached the passenger-side of the Mercury.

As Officer Cornwell approached the vehicle, Officer Barnes told Officer Cornwell

that Walker needed to be removed from the vehicle. Walker then slid across to the

driver’s seat, put the car in gear, and sped away. Officer Barnes grabbed onto the

vehicle as it sped off, and was dragged to the next intersection while yelling at

Walker to stop the vehicle. As the Mercury approached the intersection, Walker
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slowed down and told Officer Barnes to let go. When Walker sped up again, Officer

Barnes let go and hit the pavement.

Lieutenant Leesa Shoemaker (Lieutenant Shoemaker), a veteran of over

eighteen years with the Polk County Sheriff’s Office, received an emergency radio

broadcast that a DMPD officer was down, and that the fleeing Mercury was in close

proximity to her patrol vehicle. When Lieutenant Shoemaker spotted the Mercury

swerving in traffic, she followed it in her marked Ford Explorer (Explorer).

Lieutenant Shoemaker engaged her emergency lights and siren, but the Mercury

accelerated, running stop signs and a stop light. Walker drove the Mercury 70 miles

per hour through a residential area with a speed limit of 25 miles per hour. While

driving between 60 and 70 miles per hour, Walker twice leaned over to the passengerside of the vehicle, causing Lieutenant Shoemaker to lose sight of Walker.

Walker then ran a red light at another intersection and struck a van. Walker

exited the Mercury and fled on foot. Lieutenant Shoemaker continued to pursue

Walker in her Explorer. After Walker ran behind a residence, Lieutenant Shoemaker

exited her Explorer and pursued Walker on foot. Finally, Lieutenant Shoemaker

caught Walker and forced him to the ground. Lieutenant Shoemaker held Walker

until DMPD officers arrived to assist, at which time she transferred custody of Walker

to them.

Lieutenant Shoemaker returned to the intersection where Walker collided with

the van. Based on Walker’s movements during the chase, Lieutenant Shoemaker

testified she believed Walker had a gun in the Mercury. When Lieutenant Shoemaker

reached the Mercury, she told a DMPD officer “there’s a gun in that car.” The

DMPD officer and Lieutenant Shoemaker then searched the Mercury, finding a

firearm in the front passenger-side “between the seat frame where the seat bolts into

the floorboard and the floorboard.” The gun was fully loaded, but contained no
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usable fingerprints. An empty beer bottle and a portable CD player were found on

the right front floorboard.

Shortly after Walker was arrested, DMPD Detective Terry Mitchell (Detective

Mitchell) interviewed Walker. Walker told Detective Mitchell he owned the Mercury

and also admitted lying about his name, because he believed there was an arrest

warrant out on him. Walker said an officer bent down to look under the seat when

the officer told Walker his age and date of birth did not add up. Walker told

Detective Mitchell he then moved behind the wheel and drove off, because he had

given false information and because he thought he was going to be arrested based on

his belief there was an outstanding arrest warrant on him. According to Walker’s

parole officer, an arrest warrant had been issued. Walker asserted he stopped at the

intersection and asked the police officer who was hanging onto the Mercury to please

let go, which the officer did. Finally, Walker told Detective Mitchell no guns or

contraband were in the Mercury.

Walker had purchased the Mercury a day earlier from Clifton Easley (Easley),

who had known Walker for five years. Easley’s fiancee is Walker’s first cousin.

Easley had obtained the Mercury from a used-car business ten days earlier. After

acquiring the Mercury, Easley thoroughly cleaned the interior, including vacuuming

and shampooing the carpet. Easley also repaired the floorboard. Easley claimed he

never saw a firearm inside the Mercury. Easley previously had been convicted of

aggravated domestic abuse with the intent to inflict serious injury while displaying

a weapon. 

The government charged Walker with being a felon in possession of a firearm.

The parties stipulated (1) the firearm was a functional Baikal/Imez .380 pistol that

had been manufactured outside of Iowa and had traveled in interstate commerce, and

(2) Walker had been convicted of a felony. Walker made a pretrial motion in limine

to preclude Lieutenant Shoemaker from testifying she believed Walker may have
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been reaching for a firearm while leaning toward the passenger seat and she told

another officer at the scene “there’s a gun in that car.” Walker argued such testimony

involved speculation and hearsay. The district court denied the motion.

At trial, Gipson, who is Walker’s brother-in-law, testified he did not know a

firearm was in the Mercury, and he did not see a firearm in the Mercury. Andre

Bomar, who is Walker’s friend and had ridden in the Mercury, testified he never saw

a firearm in the Mercury nor had he and Walker ever discussed a firearm. When

Lieutenant Shoemaker testified at trial that she told another police officer at the scene

“there’s a gun in that car,” Walker objected on the ground the statement was based

on speculation, but the district court overruled the objection and allowed the jury to

consider the statement.

After a two-day trial, a jury found Walker guilty. During trial and after trial,

Walker moved for judgment of acquittal, arguing the government had not proved

beyond a reasonable doubt Walker “had the intent to exercise dominion and control

over a firearm, which is an essential element of the charge.” Walker also contended

“[t]here hasn’t been any evidence that he had knowledge of [the firearm’s] presence

in the vehicle.” In the alternative, Walker moved for a new trial. Denying Walker’s

motions for judgment of acquittal and for a new trial, the district court entered

judgment against Walker and sentenced him to 112 months imprisonment.

On appeal, Walker contends he is entitled to judgment of acquittal because

“the evidence [at trial] was insufficient for a rational jury to find beyond reasonable

doubt that he knowingly and intentionally possessed the handgun.” In a similar vein,

Walker contends the district court abused its discretion in denying Walker’s motion

for a new trial, because the jury’s verdict was against the weight of the evidence.

Finally, Walker contends the district court abused its discretion by allowing

Lieutenant Shoemaker to testify at trial “on the ultimate issue of fact,” that she
2Section 922(g)(1) makes it “unlawful for any person who has been convicted

in any court of, a crime punishable by imprisonment for a term exceeding one year

. . . to . . . possess in or affecting commerce, any firearm or ammunition; or to receive

any firearm or ammunition which has been shipped or transported in interstate . . .

commerce.”

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believed Walker was leaning over to the Mercury’s passenger-side to retrieve a

firearm.

II. DISCUSSION

A. Sufficiency of the Evidence

Walker argues the district court erroneously denied his motion for judgment

of acquittal, because there was insufficient evidence to support the guilty verdict for

being a felon in possession of a firearm. Walker “confronts a high hurdle with this

argument, as we must employ a very strict standard of review on this issue.” United

States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004). We “view the evidence in the light

most favorable to the government, resolving evidentiary conflicts in favor of the

government, and accepting all reasonable inferences drawn from the evidence that

support the jury’s verdict.” Id. (citation omitted). “We may reverse only if no

reasonable jury could have found [Walker] guilty.” Id.

To convict Walker under 18 U.S.C. § 922(g)(1),2

 the government had to prove

beyond a reasonable doubt: “(1) [Walker] had previously been convicted of a crime

punishable by a term of imprisonment exceeding one year; (2) [Walker] knowingly

possessed a firearm; [and] (3) the firearm has been in or has affected interstate

commerce.” United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004). The

parties stipulated to the first and third elements, thereby requiring the government to

prove only that Walker knowingly possessed a firearm.

The government could prove Walker knowingly possessed the firearm if he had

actual or constructive possession of the firearm, and possession of the firearm could
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have been sole or joint. United States v. Eldridge, 984 F.2d 943, 946 (8th Cir. 1993).

“Constructive possession of the firearm is established if the person has dominion over

the premises where the firearm is located, or control, ownership, or dominion over the

firearm itself.” United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993). When

firearms have been found in a vehicle’s trunk, our court has stated a defendant “had

dominion and control over the firearms because he had control of the keys to the

trunk of the car.” Eldridge, 984 F.2d at 946; see also United States v. Hiebert, 30

F.3d 1005, 1009 (8th Cir. 1994) (affirming a felon-in-possession conviction because

the defendant “had control over the rifle, as it was found in the vehicle that he was

driving”).

Sufficient evidence supports the jury’s conviction. Walker owned the Mercury,

and he was initially seated in the front passenger seat, under which the firearm was

later discovered. Gipson, who was driving Walker’s Mercury, testified he knew

nothing about a firearm in the vehicle. Easley extensively cleaned the Mercury before

Walker purchased it. No firearm was found during the cleaning. When Officers

Barnes and Cornwell asked Walker for his identification, Walker lied about his name,

date of birth, age, and social security number. Walker fled police after an officer

leaned into the vehicle and appeared to search under the front seat where the firearm

was concealed. Finally, Walker’s actions during the car chase are equally

incriminating, as Walker twice leaned over to the front passenger seat that concealed

the firearm. See United States v. Flenoid, 718 F.2d 867, 868 (8th Cir. 1983) (per

curiam) (affirming felon-in-possession conviction based only on the arresting

officer’s testimony he saw the defendant “bend down and reach under the car seat”

where the firearm was actually found, even though the car’s passenger testified the

defendant did not reach beneath the seat and no one had ever seen the defendant

actually possess the firearm).

Walker contends all of this evidence can be explained in a way that supports

his claim of innocence. However, the jury rejected Walker’s explanations. We will
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not disturb the jury’s reasonable verdict. See United States v. Anderson, 78 F.3d 420,

422 (8th Cir. 1996) (“The evidence need not exclude every reasonable hypothesis of

innocence, and we may not disturb the conviction if the evidence rationally supports

two conflicting hypotheses.”).

B. Motion for a New Trial

Walker contends the district court abused its discretion in denying the motion

for a new trial, again arguing the weight of the evidence does not support the jury’s

guilty verdict. Federal Rule of Criminal Procedure 33(a) authorizes a district court

to “vacate any judgment and grant a new trial if the interest of justice so requires.”

When a motion for new trial is made on the ground that the

verdict is contrary to the weight of the evidence, the issues are far

different from those raised by a motion for judgment of acquittal. The

question is not whether the defendant should be acquitted outright, but

only whether he should have a new trial. The district court need not

view the evidence in the light most favorable to the verdict; it may

weigh the evidence and in so doing evaluate for itself the credibility of

the witnesses. If the court concludes that, despite the abstract

sufficiency of the evidence to sustain the verdict, the evidence

preponderates sufficiently heavily against the verdict that a serious

miscarriage of justice may have occurred, it may set aside the verdict,

grant a new trial, and submit the issues for determination by another

jury. This authority should be exercised sparingly and with caution;

nevertheless, the trial court has wide discretion in deciding whether to

grant a new trial in the interest of justice.

United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). The district court

considered Walker’s motion for a new trial and, in exercising its wide discretion,

decided the interest of justice did not require a new trial. Not surprisingly, an

appellate court reviews the district court’s “denial of a motion for a new trial for

abuse of discretion and will reverse only if the evidence weighs heavily enough
3Although not critical to our holding in this case, our court recently has

explained that “[w]e review de novo the district court’s interpretation and application

of the rules of evidence, and review for an abuse of discretion the factual findings

supporting its evidentiary ruling.” United States v. Smith, 383 F.3d 700, 706 (8th Cir.

2004) (citing United States v. Blue Bird, 372 F.3d 989, 993 (8th Cir. 2004)).

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against the verdict that a miscarriage of justice may have occurred.” United States

v. Red Elk, 368 F.3d 1047, 1053 (8th Cir. 2004) (citation omitted).

We exert little effort in concluding the district court did not abuse its wide

discretion in denying Walker’s motion for a new trial. Sufficient evidence supports

the jury’s verdict. Walker’s conviction does not evince a serious miscarriage of

justice such that we must reject the jury’s verdict or the district court’s sense of

justice.

C. Officer’s Testimony

Walker contends “[t]he district court abused its discretion in allowing

Lieutenant Shoemaker to speculate that [Walker] was reaching for a gun during their

high-speed car chase.” Walker then maintains the district court’s erroneous

evidentiary decision prejudiced him, arguing Lieutenant “Shoemaker’s unfounded

opinion was the only evidence that [Walker] had knowledge of the weapon’s presence

and the intention to exercise dominion and control over it.” We review a district

court’s evidentiary decisions under an abuse of discretion standard,3 but, “[e]ven if

the district court erred in admitting the evidence, we will not reverse if the admission

of the evidence was harmless.” United States v. Velazquez-Rivera, 366 F.3d 661,

666 (8th Cir. 2004); see Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.”). We see no

reason to discuss the niceties of the district court’s rulings on Walker’s motion in

limine and objection at trial. No obvious error of law or abuse of discretion is

apparent. Instead, we focus on the impact of the court’s rulings, and conclude any

error was harmless.
4Walker has requested leave to file a supplemental brief on the applicability of

Blakely v. Washington, 124 S. Ct. 2531 (2004), which we have denied. However, we

reserve ruling on the applicability of the Blakely reasoning to this case until the

Supreme Court issues its opinions in United States v. Booker and United States v.

Fanfan.

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We reach this conclusion based on our firm belief Lieutenant Shoemaker’s

testimony that Walker reached for a gun or had a gun in his car was inconsequential

to the jury’s verdict. Had the district court precluded Lieutenant Shoemaker from

testifying she told another officer “there’s a gun in that car” or that she believed

Walker had been reaching for a gun during the high-speed chase, the jury was still

presented with evidence more than sufficient to convict Walker. The jury heard

evidence that (1) Walker owned the Mercury, which recently had been detailed with

no firearm being found; (2) Gipson, the driver, knew nothing about a firearm being

in the vehicle; (3) Walker lied about his name, age, date of birth and social security

number; (4) Walker, upon seeing a police officer look under the front seat, moved to

the driver’s seat and fled, leading Lieutenant Shoemaker on a dangerous, high-speed

car chase; and (5) during the chase, Walker twice leaned over to the front passenger

seat where the firearm was concealed. The record does not support the conclusion

the disputed portions of Lieutenant Shoemaker’s testimony made the case against

Walker.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.4

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