1

The Honorable Henry Autrey, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2810

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Cory Bradley, *

*

Defendant-Appellant. *

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Submitted: December 15, 2006

Filed: January 11, 2007

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Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Cory Bradley was convicted by a jury of possession of a firearm by a felon in

violation of 18 U.S.C. § 922(g)(1), and the district court1

 sentenced him to ninety four

months imprisonment. Bradley appeals, arguing that there was insufficient evidence

to support his conviction because the government did not prove that he knowingly

possessed a firearm within the meaning of 18 U.S.C. § 922(g). 
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On August 29, 2004, St. Louis County police officer Chris Ormerod observed

a vehicle driving without headlights. Ormerod stopped the vehicle and spoke with the

driver, Samella Hogan, and discovered she was driving with only a learner's permit.

He then asked Bradley, who was sitting in the passenger seat, if he had a driver license

because Hogan was only permitted to drive if she was accompanied by a licensed

driver. Bradley replied that he did not have any identification. 

Ormerod asked Hogan to step outside the car. While Ormerod was speaking

with her, he noticed Bradley lean down and touch the floorboard of the vehicle.

Another officer arrived at the scene and stayed near the rear of the vehicle while

Ormerod went over to the passenger side to speak with Bradley. Ormerod asked

Bradley to get out of the car because he thought he had been trying to hide something.

Ormerod asked Bradley whether he was carrying anything illegal. Bradley replied,

"I have nothing on me – go ahead and check." Ormerod patted him down, and felt a

small plastic bag in his front pants pocket. When he saw Bradley looking over his

right shoulder toward the floorboard of the car, Ormerod shined his flashlight on the

floorboard and saw the handle of a gun. Ormerod attempted to handcuff Bradley so

he could investigate the situation safely, but Bradley pushed him and adopted a

fighting stance. Ormerod then grabbed his right wrist, but Bradley resisted and tried

to break away. Ormerod told him he was placing him under arrest for assaulting a

police officer, and Bradley escaped and fled on foot. The officers ran after him, and

Ormerod used a taser to stop him. 

After Bradley was placed under arrest, Ormerod returned to the car and seized

a fully loaded .38 caliber revolver from under the passenger seat where Bradley had

been sitting. A background check from the police vehicle revealed Bradley had two

outstanding warrants, and a search incident to Bradley's arrest found marijuana and

crack cocaine in his front pants pocket inside a plastic bag. It was later discovered

that Bradley had previously been convicted of a felony. 
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Bradley was indicted on one count of being a felon in possession of a firearm

and eventually decided to proceed pro se at trial after the district court declined to

appoint a fourth lawyer to represent him, having already removed three prior attorneys

at his request. Standby counsel was appointed, and during trial Bradley

crossexamined the government's witnesses. In his opening statement and closing

argument Bradley told the jury that the government did not prove he knowingly

possessed the handgun. The jury found him guilty, however. 

On appeal Bradley challenges the sufficiency of the evidence. He argues that

the government did not prove that he knowingly possessed the firearm by failing to

demonstrate either actual or constructive possession of it. Given the jury verdict in

favor of the government, we must draw all reasonable inferences from the evidence

in the light most favorable to the prosecution. United States v. Davis, 449 F.3d 842,

845 (8th Cir. 2006). We will only reverse if no reasonable jury could have found the

defendant guilty. United States v. Brave Thunder, 445 F.3d 1062, 1064 (8th Cir.

2006).

The government was required to prove that Bradley had been previously

convicted of a crime punishable by imprisonment of more than one year, that he

knowingly possessed a firearm, and that the firearm had been in or affected interstate

commerce. See United States v. Brown, 422 F.3d 689, 691-92 (8th Cir. 2005). On

appeal Bradley only challenges the second element. The government can prove that

Bradley knowingly possessed the firearm by showing that he had actual or

constructive possession of it. Id. at 692. Constructive possession can be established

by showing ownership, dominion, or control over the gun. United States v. Davis,

449 F.3d 842, 846 (8th Cir. 2006). Constructive possession may be based on

circumstantial evidence which is "intrinsically as probative as direct evidence."

United States v. Patterson, 886 F.2d 217, 219 (8th Cir. 1989) (per curiam) (quoting

United States v. Holm, 836 F.2d 1119, 1124-25 (8th Cir. 1988)). 
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Bradley argues that the government did not prove he had constructive

possession of the firearm because he did not have dominion or control over the vehicle

driven by Hogan and because access and close proximity to a firearm are insufficient

to demonstrate constructive possession. See United States v. Cruz, 285 F.3d 692, 697

(8th Cir. 2002). He points out that the officers did not find any of his personal items

in the car, that the government did not demonstrate that he owned the car, and that he

was not the driver of the vehicle.

 Although mere physical proximity is insufficient to establish constructive

possession, the jury could find that Bradley had control over the firearm since it was

seized from a location immediately below his seat where it was found protruding from

underneath in plain view. See United States v. Johnson, 18 F.3d 641, 647-48 (8th Cir.

1994) (finding passenger controlled a firearm when gun protruded from bag within

two feet of him). Ormerod testified that Bradley's repeated movements to reach down

or check the area where the firearm was found suggested he was attempting to hide

it. See United States v. Maloney, 466 F.3d 663, 667 (8th Cir. 2006). The gun was

fully loaded, and Bradley resisted Ormerod and attempted to flee the scene, only being

taken into custody with the assistance of a taser. See United States v. Walker, 393

F.3d 842, 846-47 (8th Cir. 2005) (body movements that appeared to be an attempt to

hide a weapon and fleeing the scene support an inference of constructive possession).

We conclude the evidence presented by the government was sufficient to support the

jury's verdict that Bradley had constructive possession of the gun. 

Accordingly we affirm the judgment of the district court.

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