*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in 5TH CIR. R. 47.5.4.

-1-

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30933

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DAVID LEE BARNHART,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

(97-CR-10020-1)

April 30, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

Following a jury trial, David Lee Barnhart was found guilty of unlawful possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Barnhart appeals, contending the government failed

to prove beyond a reasonable doubt that he knowingly possessed the firearm. We AFFIRM.

I. FACTS AND PROCEEDINGS

OnNovember 23, 1996, Louisiana State Trooper CharlesTonyRawson(“TrooperRawson”)

was on patrol on Interstate 49. Trooper Rawson observed a pickup truck swerve off the roadway

onto the shoulder for approximately 300 feet. When Trooper Rawson stopped the vehicle, the
-2-

suspect, David Lee Barnhart (“Barnhart”), exited his vehicle and approached the patrol car. When

Barnhart arrived at the patrol car, he presented an Oklahoma driver's license and the vehicle

registration.

As a standard procedure for trooper safety, Trooper Rawson asked Barnhart whether there

were any weapons in the vehicle. Barnhart did not answer. When Trooper Rawson repeated the

question, Barnhart responded that there was a shotgun behind the seat. Trooper Rawson conducted

an NCIC check and learned that Barnhart had two prior felony convictions and that Barnhart was on

parole. Trooper Rawson approached the vehicle and saw the shotgun. After Trooper Rawson

obtained Barnhart's consent to search the pickup, he located a 12 gauge, double-barreled shotgun

loaded with two rounds of ammunition. Barnhart was arrested for being a felon in possession of a

firearm.

At trial, Appellant's son, Damon Barnhart (“Damon”) testified that he had borrowed

Appellant's pickup truck on November 21 and November 22 to move fromOcean Springs, Louisiana

to Longview, Texas. Further, Damon testified that the shotgun belonged to him and that he

inadvertently left the shotgun in the pickup when he moved.

Barnhart testified that initially he did not know that the shotgun wasin the vehicle. Barnhart

said that he realized the shotgun was in the pickup when he swerved to miss a vehicle on the

interstate. When Barnhart slammed on the brakes, there was a bang against the back seat that made

him aware that the shotgun was there. 

At the conclusion of the government's case, counsel for Appellant moved for judgment of

acquittal under Federal Rule of Criminal Procedure 29, claiming insufficient evidence to support

voluntary and intentional possession of a firearm. The district court denied this motion. Appellant

further moved for judgment of acquittal or, alternatively, for a new trial. The district court denied

these motions and the jury found Appellant guilty. The district court sentenced Appellant to a prison

term of 54 months. 

II. DISCUSSION
 

1Barnhart's focus on the sufficiency of the evidence leads us to conclude that he appeals the

denial of the Motion for Judgment of Acquittal. 

-3-

As the sole issue on appeal, Barnhart contends the district court erred in concluding that the

government proved beyond a reasonable doubt that Barnhart knowingly possessed the firearm in

violation of 18 U.S.C. § 922(g)(1).1

This Court reviews the district court's denial of a Motion for Judgment of Acquittal de novo.

See United States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998). The Court examines “whether, based

on the totality of evidence at trial, and all reasonable inferences therefrom, and in a light most

favorable to the Government, a rational juror could find all elements of an offense beyond a

reasonable doubt.” United States v. Greenwood, 974 F.2d 1449, 1456 (5th Cir. 1992) (citing Jackson

v. Virginia, 443 U.S. 307, 319 (1979)). 

To support a conviction under 18 U.S.C. § 922 (g)(1), the government must prove beyond

a reasonable doubt that the defendant: (1) has been convicted of a felony; (2) knowingly possessed

a firearm; and (3) the possession of the firearm was in or affecting interstate commerce. See United

States v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988). 

Appellant contends the government failed to prove that he “knowingly” possessed a firearm.

Possession may be actual or constructive. See United States v. Munoz, 150 F.3d 401, 416 (5th Cir.

1998) (citing United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992)). Actual possession

means that the defendant knowingly has direct control over a thing at a given time. See id. (citing

United States v. Randall, 887 F.2d 1262, 1268 (5th Cir. 1989)). Constructive possession means

ownership, dominion, or control over a thing, or control over the premises where the thing is found.

See id. (citing United States v. Torres, 114 F.3d 520, 524 (5thCir. 1997)). Possession can be shown

via direct or circumstantial evidence. See id. (citing United States v. Garza, 118 F.3d 278, 283 (5th

Cir. 1987)). 

At trial, Appellant testified that he owned the vehicle where the firearm was located and that

he knew the firearm was in the vehicle. We hold that the evidence, when viewed in the light most
-4-

favorable to the government, supportsthat a rational juror could find beyond a reasonable doubt that

the Appellant constructively possessed the firearm. 

III. CONCLUSION

The district court's decision to deny the Motion for Acquittal is AFFIRMED.