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

Southern District of Iowa.



## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 04-12 23

___________ United States of Americ a, * * Appellee, * * Appeal from the United States
v. * District Court for the * Southern District of Iowa. Demarko S. Walker, * * Appellant

. *

___________ Submi tted: Oc tober 19, 2004 Filed: Ja nuary 13, 2005

___________ Before M ORRIS SHEPP ARD ARNOLD , BOW MAN, a nd RILEY, Circuit Judges.

___________ RILEY, Circuit Judge.
After a jury convicted Dem arko Wa

lker (W alker) of

being a fe lon in possess ion of a firearm in violation of 18 U.S.C. § 922(g)(1), the district court 1 entered j udgmen t and sentence d Walke r t o 112 mon ths imp risonm ent. W alker app eals, ar guing the district court er

roneously admit ted certa in testim ony at t rial, and erroneously denied Walker ’s post- trial m

otions for j udgmen

t of acquit

tal or for a new tr ial. We af

fir m.-2-

I. BACKGROUND On May 13 , 2003, O fficer Chad Corn

well (O fficer

Cornw ell) of the Des Moines (Iowa) Police Dep a rtme nt (DMPD ) pulled ove r a Merc ury G rand Mar quis (Mer cur y) for speed ing, for not disp laying a front li cense pla

te, and f or having a cracked windshiel d. Off

icer Cor nwell tal ked with th e driver of the Mer cury, Otto Gipson (Gipson) , who had

no identifi c ation and said his driver’s license was suspended. Officer Cornwell then askedWalker, who was the fr ont-seat passenger and only oth er occupa

nt, to iden tify h imsel f. Wa lker ident ified him self as Joh

n Smit h, and gave O fficer

Cornwel l a false

date of bir

th and a fal se social security
nu mb er. While O fficer Cornwel l returne d to his polic e cruiser to check th e inform ation given t o him, two other DMPD po lice off

icers ar rived.

Officer Cornwell inform edone of the newly arrived officers, Officer Stewart Barnes (Offic er Barne s), that Gipson was driv ing on a suspe nded licens e, the passenger may have provid ed f

alse in form ation, an d a beer bo ttle was on the floorboard between the driver and passenger. Officer Ba rnes approached th e Mercury and asked Gipson to step out of and behi nd the veh icle. While another officer kept Gipson under observation at the rear

of the vehicle, Officer Barnes talked to W alker, who remained in the passenger seat. O fficer Barnes asked Walker a

few ques tions, and Walker still did n ot provide hi s real ide ntity, age or date of birth. Officer

Barnes removed th e be er b ot tl e fr om th e Me rcu ry an d i nfo rmed Wal ker th ere was a pr ob lem.

Officer Cornwel l then learned Walker had given false information, inform ed Officer Barnes of

this finding, and approa ched the pa ssenge r -si de o f th e Mer cur y. As Officer Cornwell approached the vehicle, O fficer Ba rnes to ld Offic er Cornw ell that Walker needed

to be removed

from the vehicl e. Wa

lker then s lid across to the driv er’s seat, put

the car in gear, a

nd sped awa

y. O fficer

Barnes gr

abbed onto th e vehicle as it sped o ff, and was dragged to the next intersection while yelling at Walker to stop t he vehicle. As the Mercury approached the intersection, Walker-3-

sloweddown and told Officer Barnes to let go. When Walker sped up again, Officer Barnes le t go and hit th e pavem ent.

Lieutena ntLeesa Shoemaker (Lieutenant Shoemaker), a v e teran of over eighteen year s with the Polk County Sheriff ’s Off ice, re ceived an emer

gency radio broadcast that a DMPD officer was down, and that the flee ing Mercury was in cl ose proximity to her patr

ol vehicle . Whe n Lieut enant Shoemaker spotted the Mercury
swerv ing in traffic, she followed it in her ma rked Ford Explorer (Explorer )

. Lieutena ntShoemaker engaged her em ergency lights and siren, but the Mercury acceler ated, running stop s igns and a st op light. Walker drove the Mercury 70 miles per hour through

a reside ntial a rea wit

h a speed limit of

25 mile s per hour. While driving between

60 and 70 mile s per hour, Walke r twiceleaned ove r 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 Merc ury an d fled on fo ot. Lieutenant Sho emaker c ontinued to pur sue Walker in her Explorer. After W alker ranbehind a residence, Lieutenant Shoemaker exit ed her E xplorer and pursued Walker on foot. Finally, L ieutenant Shoemaker caught Walker

and force d him to the ground. Lieutena nt Shoemaker held

Walk e r until DMPD of

ficers a rrived to ass is t, a t wh ich time she transferred custody of Walker to th em.

Lieutena ntShoemaker

returned to the intersec tion where Walk er collide d with the van . Based on Walker’s m ovements during the chase, Lieutenant Shoem ak e r testifiedshe believ ed Walker had a gun in the Mercury. W

hen Lieutenant Shoemaker reached the Mercury, she told a DMPDofficer “ there’ s a gun in that car .” The DMPD officer and Lieutenant Shoemaker then searched the M ercury, f inding a firearm in the fro ntpassenger-side “between the seat fra me where the seat

bolts into the floorboarda nd the floor board.” The gun w as fully loaded, b ut containe d no-4-

usable fingerpr

ints. An empty

beer bottl e and a por

table CD playe r were

found on the right f ront floor board.
Shortly after W alker wa s arrest ed, DMP D Dete ctive Te rry M itchell ( Detective Mitchell) interviewed Walker. W alker told Detective Mitchell he owned the Mercury and also adm

itted lying about h is n ame, because h e believe d there w as an arrest
warran t out on him. Walker said an offic er bent down to look under the seat when the office r told W alke r his age a nd date of b irth did not a dd up. W alker told Detective Mitchell he then moved behind the wheel and drove off, becau s e he had given false inf

orma tion and because h e thought

he was going to be arr

ested base d on his belief there was a

n outstand ing a rrest warran t on h im. Accord ing t o Walke r’s parole officer, an

arrest warrant had been issued. Walker asserted he stopped at the intersec tionand asked t

he police o fficer

who was hanging onto t

he Mercu ry to p lease let go , which theofficer

did. Finally, Walker

told Dete ctive Mitc hell no guns or
con trab and were in t he M ercu ry.

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

), who had known Walker for five y ears. Easley’ s fiancee i s Walke r’s first cousin. Easley had ob ta ined the Mercury from a used-car business ten days earlier. A fter acquiring the Merc ury, Easley

thoroughly

cleaned t he interio r, includ

ing vacuum

ing and shampooing the carpet. Eas ley also repaire d the floo rboard. Easley claim ed he
never saw a fi rea rm inside t he Mercur y. E asley previously

had been c onvicted of aggravateddomes tic abuse with the intent to inf lict seri ous injury

while disp laying a weapon.

The governm ent charg ed Walker with being a fe lon in possess ion of a fi rea rm. The parties st

ipulated ( 1) the fir

earm was a funct ional Baikal/Imez .380 pistol that had been manufactur

ed outside of

Iowa and had trave led in

interstat e comm

erce, and (2) Walker had

bee n co nvi cted of a f

elo ny. Walke r ma de a pretr ial m otion in lim

ine to precludeLieutena

nt Shoemake r fr om tes tifying she belie ved Wal ker m ay hav e-5-

been rea chi ng for a fi rea rm w hile leani n g toward t he passenger seat an d she told another officer at th e scene “there’s a gun in that car.” Walker argued such testim

ony involved spe culation a

nd hearsa y. T he distric t court den ied the m otion.

At trial, Gipso n, who is Walker’s b rother-in -law, testifi ed he did n ot 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 fir ear m in the Mercury nor had he and Walker ever discussed a firearm. When Lieutena ntShoemaker testified at trial that she told ano ther polic e office r at the scene “there’s a gun in that

car,”Walke r objec ted on the gr ound the state ment was based
on speculati on, but the district c ourt overr uled the obj ection and allowed t he jury to consider t he statem ent.
After a two-day trial , ajury found Walker gu ilty. During tr ial and af ter tria l, Walker moved f

or judgment of acquittal, arguing the governm ent had not proved beyond a reasona ble doubt W alker “

had the inte nt to exerc ise dominion and control
over a firearm, which is an essen tial elem ent of the c harge.”

Walke r also contended “[t]here hasn’t been any evidence that he had knowledge of [the firear m’s] presence in the vehicle.” In the alternative, Walker moved fo r a new t rial. D enying Walker’s motions for judg

ment o f acquit

tal and for a new trial, the district court entered judgm ent against

Walke r and sentenced him to 112 m onths im

prisonm ent.

On appeal, Walke r contends he is entitl ed to ju dgment of acquitt al becaus e “theevidence[at trial] was insuffici ent for a rational j ury to find bey ond reasona ble doubt that he know ingly a

nd intentionally poss essed the h andgun.” I n a similar vein, Walker contends the district court abused its d iscretion in deny ing Walker’s m

otion for a new tr ial, bec ause the jury ’s ve rdict was against the weight of the evidence. Fin all y, Walke r contends the distric t court abu sed its disc retion by allowing Lieutena ntShoem aker to te sti fy at trial “ on the ultim

ate issue o f fact, ” that she2 Section 922(g)(1) make s it “u

nlawful f or any person who has been convicted in any c ourt of, a crime punishable by im prisonment for a term

exceeding one year

. . . to . . . possess in or affecting comm erce, any fire arm

or am muniti on; or to re ceive any firearm or am

munition which has been shipped or tran sporte d in inter state . . . commerce.” -6- believed Walker was leaning over to the Mercury ’s passenger-s ide to retrieve a fir ear m.

II. DISCUSSION A. Sufficiency of the Evidence W alker argues the district court erroneously denied his motion for judgmen t of acquittal, because there was insuf ficient e vidence to support the g uilty verdict f or being a fe lon in possess ion of a fire arm. Walke r “c onfronts a high hurdle wi th this argum ent, as we m

ust employ a ver

y strict standard of review on this issue.” United States v. Cook , 356 F.3 d 913, 917 (8th Cir. 2004). We “view the eviden ce in the l ight most favorabl e to the gov ernment, resolving e videntiary conflicts in favor of

the go vernm ent, and accepting all reasonable inferences drawn from the eviden ce tha t support the jury’s ver

dict.” Id. (citatio n omitte d). “ We may re verse only if no reasonable jury could have found [Walker ] guilty.” Id.

To convict Walker under 1 8 U.S.C. § 922(g)(1), 2 the governm ent had to pr

ove beyond a reasona

ble doubt: “ (1) [Walker] had previously been convicted of a cri me punishable b y a te rm of

impr isonme nt exceed

ing one year ; (2) [W alker] knowingly possessed a fire ar m; [a

nd] (3) the fire arm has been in or has aff ected interstate commerce.” UnitedStates v. Ma xwell , 363 F.3 d 815, 818 (8 th Cir. 20 04). The parties stipulated

to the fir stand third e leme nts, thereby requiring the governm

ent to pro ve o nl y th at W alk er k no win gl y po ss ess ed a fir ear m.

The gove rnment could prove Walker knowingly possessed the firearm if h e ha d actual or constru ctive posse ssion of the fire arm, and possessi on of the firearm could-7-

have been sole o r joint. United St ates v. E ldridge , 984 F.2d 943, 946 (8th Cir. 1993). “Cons tructive possession of the firearm is establis hed if the p erson has do minion over the premises wher

e the firearm

is located , or contr

ol, owne rship, or dom inion over t he firearm itself.” United St ates v. B oykin , 986 F.2d 27 0, 274 (8t h Cir. 1993 ). Whe n fir ear ms have been found in a vehicle’s trunk, our court has stated a defendant “had do mi nion an d control over the firearm s because he had contr ol of the ke ys to the trunk of the car.” Eldridge , 984 F.2 d at 946; see also United Stat es v. Hi ebe rt , 30 F.3d 1005, 1009 ( 8th Cir. 1994 ) (affirming a felon- in-possessi on convictio n because the defendant “had control over the rifle, as it was fo und in the vehicle that he was driving”).

Sufficie nt evidence s upports the jury’s conviction. W alker owned the Mercury , and he was initi ally s eated in th e front passenger seat, under which the firearm was later discovere d. Gip son , who was driving Walker’s Mercury, testified he knew nothing about a firearm in the vehicle. Easley extensivel

y cle aned theMercury before Walker purchased

it. No f irearm was found

during th e cl eaning. When Officers Barnes and

Cornwell asked Walker for his identification, W alker lied about his name, date of birth, a ge , and social security number . Walker fled police after a n officer leanedinto the vehicle and appearedto searc h under the front sea t where the firearm
was conceale d. Finall

y, W alker’ s actions du ring the car c hase are

equally incrim inating, as Walker twice leaned over to the front passenger seat that concealed the firearm. See United St ates v. F lenoid , 718 F.2 d 867, 868 (8th Ci r. 1983) (per
cur iam) (affir

ming f elon-in-po ssession con

viction base d only on th e a rresting officer’s testimony

he saw the defen dant “

bend down a

nd reach u

nder the c ar seat” where th e fi rea rm w as actual ly foun d, even th ough the car ’s passe nger testi fied the defendant did not rea ch beneath

the seat a

nd no one ha d ever s een the de fendant actually possess the firearm ).

Walker contends al l of this evi dence ca n be explained in

a way that support s his claim of innocenc e. However, the jury rejected Walker’s explan ations. We wi ll-8-

not disturb the jury’s reasonab le verdict

. See United St ates v. A nderson , 78 F.3d

420, 422 (8th Cir. 1996) (“ The evide nce need no t exclude e very r easonable hypothe sis of innocence, and we m

ay not d isturb the c onviction

if the evidence rationall

y suppor ts two conflicting hypotheses.”).

B. Motion f

or a New Tri al Walker contends the district court abused its discretio n in deny ing the motion for a newtrial , again argui ng th e weig ht of the ev iden ce doe s not supp ort th e jury’s guilty verdi ct. Federal Rule of Criminal Procedure 33(a) authorizes a district court to “vacate any judgment an d grant a ne w trial if the interest o f justice so requires.”

W hen a motion for new trial is m

ade on the g

round that t

he verdict is contrar

y to the weight of

the evidenc e, the issues are far differe nt from

those rais ed by a

motion for judg ment o f acquittal . The question is not whether the defen dant should be

acquitted outright, but only whether he should have a new tri al. Th e district court nee d not view the eviden ce in the l ig ht most fa vorable to the verdict; it may weigh the eviden ce and in

so doing evalua

te for its elf the c redibility of the witnesse s. If the

court c o ncludes that, despite the abstract sufficiency

of the evidence to sustain the verdict , the evidence preponderates sufficie ntly he avily a gainst the v erdict tha

t a serious misca rriage of justic e ma

y have occurre d, it m ay set

aside the v erdict, grant a new tr ial, and s ubmit t he issues for determination by another jury. This autho rity s hould be ex ercised s paringly and with c aution; nevertheless, the trial court has wide discre tion in deciding w

hether to grant a new trial in the interest of justice.

UnitedStates v. Lincoln

, 630 F.2 d 1313 , 1319 (8th Cir. 1980). The district court considered Walke r’s m

otion for a

new trial and , i n exercis ing its wide discretio n, decidedthe interest of justice did not require a new trial. Not surprisingly, an appella te court re views the

district c ourt’s “ denial of a motion for a new

trial for abuse of discre tion and wi ll rever se only if the evi dence weighs hea vily en ough3 Although not c ritic al to our holding in this case, our court recently has explained that “ [w]e

review de novo the di strict cou rt’s int erpreta

tion and appl ication of the rules of evidence, and revie w for an abuse of di scretion t

he factual findings supporting

its evidentiary ruling.” United St ates v. S mith , 383 F.3d 700, 706 (8th Cir. 2004) (citing United States v. Blue Bird , 372 F.3d 989, 993 (8th Cir. 2004)). -9- against the verdict that a miscarriage of j ustice may have oc curred.” United States v. Red E lk , 368 F.3d 1047, 1053 (8th Cir. 2004) (citation omitted).

We exert little effort in co nclud ing the distr ict court d

id not abuse its wide discretio n in denyin g Walke r’s m otion for a new tr ial. Suf ficient e vidence sup ports the jury’s ver

dict. Walker’s conviction does not evince a seriou s misc arriage

of justice such that we must rejec t the jury’s ver dict or the district court’s sen se of justice.

C. Officer’s Testimony Walker contends “ [t]he d

istrict c ourt abu sed its disc retion in allowing Lieutena ntShoemaker to speculate that [W alker] was reaching for a gun during

their high-speed car cha se. ” Walker then m aintains th e district

court’ s erroneo us evidentiary

decision pre

judiced him, arguing Lieutenant “ Shoemaker’s unfounded opinion was th e on ly evidence that [Walker] had knowledge of the weapon’s presence and the intenti on to e xercise dominion and control over it.” We re view a district court ’s evidentia

ry dec isions under

an abuse of

dis cre tion standar

d, 3 but, “ [e]ve n if the district court erred

in adm itting the e vidence, we will not rever se if the a dmissi on of the evidence was harmless.” United States v. Velazquez-Rivera , 3 66 F. 3d 661, 666 (8th Cir. 2004); see Fed. R. Cr im. P. 5 2(a ) (“An y error, de fect, irregular ity, or variance that does not affect substantial rights must be disregarded.”). We see n o
reason to discuss th e nicetie s of th e district court’ s rulings on Walker’ s motio n in limine and objection at trial. No obvious error o f law or abuse of di scretion i s apparent. Ins tead , we fo cus on the im pact of the

court’ s rulings, and conclud e any
error w as harm

less.4 Walker has reque sted leave

to file a s upplem ental brie f on the app licability of Blakely v. Wa shington , 124 S. Ct. 2531 (2 004), which we have deni ed. However, we re serve ruling on the applicability of the Blakely reasoning to this case

until the Sup reme Court issue s its opinions i n Unite d States v. Booker and United St ates v. Fanfan

. -10- We reach thi s conclusi on ba sed o n our firm bel ief Lie uten ant Sh oemaker ’s testim ony that Walker reached for a gun or had a

gun in his car was inconsequential to the jury ’ s verdict. Had the d istrict c ourt prec luded Lieutenant Sho emaker from testify ing she told another officer “there’ s a gun in that car” or t hat she believed Walker had been reaching for a gun during the h igh-speed c hase, the jury was still presentedwith evidence m ore th a n sufficient to convict Walker. The jury heard evidence that (1) Walker owned the Mercury , whichrecently had been detailed with no firear m bein g found; (2) Gipson, t he driver , knew no thing about a firearm being in the vehic le; (3) W alker lie d about his name , age, date of bir th and social security number; (4) Wa

lker, upon

seeing a police officer

look under t

he front se at, m oved to the driver’ s seat and f

led, lea ding Lieutena

nt Shoemaker on

a dangerous, high-speed
car chase; an d (5) durin g the chase, Walker tw ice leane d over to the front passenger seatwhere the firea rm was concealed. T he record do es not suppor t the concl

usion the disputed por

tions of Li eutenant S hoema ker’s t estim on y ma d e the case against Walker.

III. CONCLUSION For the f oregoing re asons, w e affir m the judgm ent of the d

istrict c ourt. 4

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