NOT RECOMMENDED FOR FULL-TEXT PUBLICATON

File Name: 14a0296n.06

No. 13-5696

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARIO COMMON,

Defendant-Appellant.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF TENNESSEE

OPINION

Before: MOORE and ROGERS, Circuit Judges; and NIXON, District Judge.

*

KAREN NELSON MOORE, Circuit Judge. Mario Common appeals from a jury 

conviction for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

He argues that his conviction should be overturned because the evidence against him was 

“incredible as a matter of law” and was insufficient to support the verdict. Because we find 

nothing in the testimony supporting the conviction that was physically impossible or against the 

laws of nature, we defer to the jury’s factual determinations. Accordingly, we AFFIRM.

On April 4, 2012, in the early hours of the morning, four Chattanooga police officers 

responded to a 911 call for a domestic disorder involving a weapon. R. 33 (Trial Tr. at 70) (Page 

ID #130). The officers were directed to an address on Newton Street, near its intersection with 

North Orchard Knob. The officers knew this neighborhood in East Chattanooga as a high-crime 

 

*

The Honorable John T. Nixon, Senior United States District Judge for the Middle 

District of Tennessee, sitting by designation.
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area with significant gun violence. Id. at 23 (Page ID #83). Upon arriving at the intersection, 

they parked their squad cars and proceeded on foot up Newton Street. Id. at 17 (Page ID #77).

When they turned onto Newton Street, the officers spotted a man in the middle of the 

street with what appeared to be a pistol in his hand. He was pointing the pistol at a woman or a 

small group of individuals. Officer Nelson testified that he saw the silhouette of a pistol and 

Officers Bramlett and Winbush both recalled that they saw a small silver gun in the man’s hand.

Id. at 19, 45, 71 (Page ID #79, 105, 131). When the woman saw the police arriving, she shouted 

to tell them that the man had a gun. Id. at 44 (Page ID #104). The officers instructed everybody 

to get on the ground. Instead of immediately complying, the man walked toward the house to the 

edge of the yard and then tossed the object he was holding. Id. at 45, 72 (Page ID #105, 132).

He then walked back down the driveway while shouting that he did not have anything, and lay

on the ground. He was taken into custody and later was identified as defendant Mario Common.

While one of the officers took Common into custody, the others searched the yard for the 

object they had seen him toss away. They recovered a small, silver gun in the grass behind the 

house. The police did not take photographs of the gun before removing it, and the officers’ 

testimony varies regarding the precise location of the gun. Officer Nelson testified that he and 

Officer Young found the gun “[i]n the back of that residence . . . just at the woodline.” Id. at 19 

(Page ID #79). The distance from the middle of Newton Street, where the officers first observed 

Common, to the tree line at the back of the property was 156 feet. Id. at 68 (Page ID #128). 

However, Officers Bramlett and Winbush testified that the gun was recovered from the 

backyard, about ten feet away from the driveway. Id. at 47, 72 (Page ID #107, 132). Officer 
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Winbush testified that when he found the gun, “there was a lot of condensation on the ground, 

but the weapon didn’t appear to have any kind of moisture on it. There were no indentions into 

the ground where it was, and it didn’t look like it had been there any period of time.” Id. at 73 

(Page ID #133).

At trial, Common stipulated that he was a felon and that the handgun recovered from the 

yard had traveled in interstate commerce. Id. at 11, 88 (Page ID #71, 148). Thus, the sole issue 

for the jury to decide was whether Common had knowingly possessed a firearm. See 18 U.S.C. 

§ 922(g); United States v. Caraway, 411 F.3d 679, 682 (6th Cir. 2005). After the government 

rested, Common made a motion for judgment of acquittal pursuant to Federal Rule of Criminal 

Procedure 29. R. 33 (Trial Tr. at 89) (Page ID #149). He argued that there were “major 

inconsistencies” in the testimony of the witnesses and that the 911 caller was not present to 

testify. Id. at 90–93 (Page ID #150–53). The district court denied the motion, explaining that 

“what struck [him] about the three witnesses’ testimony was how consistent it was” and that 

“any discrepancies . . . in the testimony were easily explained by [the officers’] positional 

differences in the way they approached the scene.” Id. at 95 (Page ID #155). Common did not

call any witnesses or present any evidence on his own behalf, and he did not renew the Rule 29 

motion after declining to put on a case. The jury convicted Common on a single count of being a 

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). R. 30 (Judgment) (Page 

ID #53). The district court then sentenced him to 240 months of imprisonment. Id. (Page ID 
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#54). Common filed this timely appeal of his conviction, arguing that the evidence against him 

was “incredible as a matter of law.”

1

I. SUFFICIENCY OF THE EVIDENCE

At its core, Common’s appeal is a sufficiency-of-the-evidence claim. He contends that

the testimony used to support his conviction was incredible as a matter of law, and by extension 

that there was insufficient evidence to support the jury verdict. When an appellant claims that 

the evidence produced at trial was insufficient to support a conviction, we must determine 

whether “after viewing the evidence in the light most favorable to the government, any rational 

trier of fact could have found the elements of the crime beyond a reasonable doubt.” United 

States v. Beddow, 957 F.2d 1330, 1334 (6th Cir. 1992) (citing Jackson v. Virginia, 443 U.S. 307, 

319 (1979)); see also United States v. Morrow, 977 F.2d 222, 230 (6th Cir. 1992) (en banc). We 

may reverse a judgment of conviction only if it was “not supported by substantial and competent 

evidence upon the record as a whole.” Beddow, 957 F.2d at 1334 (citations omitted). “It is not 

necessary for the evidence to exclude every reasonable hypothesis except that of guilt.” Id. In 

conducting our review, “we may not reweigh the evidence, reevaluate the credibility of 

witnesses, or substitute our judgment for that of the jury.” United States v. Martinez, 430 F.3d 

317, 330 (6th Cir. 2005). Accordingly, the defendant faces a “very heavy burden,” United States 

v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006) (citation omitted), to overcome the “strong 

presumption in favor of sustaining a jury conviction.” United States v. Peters, 15 F.3d 540, 544 

(6th Cir. 1994).

 

1Common does not appeal the procedural or substantive reasonableness of his sentence.
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Before turning to the merits of Common’s claim, we must address whether he has waived 

his sufficiency of the evidence claim by failing formally to renew it at the close of the defense 

case. Ordinarily, when “a defendant does not renew his motion for judgment of acquittal for 

insufficiency of the evidence at the close of all of the proofs, appellate review is limited to 

determining whether there was a ‘manifest miscarriage of justice.’” United States v. Price, 134 

F.3d 340, 350 (6th Cir. 1998) (quoting United States v. Cannon, 981 F.2d 785, 789 (5th Cir. 

1993)); see also United States v. Kuehne, 547 F.3d 667, 696–97 (6th Cir. 2008). However, the 

waiver rule applies only when the defense presents its own witnesses or other evidence. See 

Price, 134 F.3d at 350 (“[W]hen the defendant moves for judgment of acquittal at the close of 

the government’s case-in-chief, and defense evidence is thereafter presented but the defendant 

fails to renew the motion at the close of all of the evidence, he waives objection to the denial of 

his earlier motion absent a showing of a manifest miscarriage of justice.”) (emphasis added); 

United States v. Black, 525 F.2d 668, 669 (6th Cir. 1975) (“The rule is settled that when a 

defendant introduces evidence, he waives any objection to the denial of his motion to acquit at 

the close of the government’s case.”). In United States v. Kubeck, 487 F.2d 1256 (6th Cir. 1973), 

we explained:

The rationale of [the waiver rule] was that the presentation of a defense served as 

a withdrawal of the acquittal motion, and therefore, a new motion was required at 

the close of defendant’s case to preserve the evidentiary point as a ground of 

appeal. In our case, however, [the defendant] offered no evidence after he had 

rested, and consequently he did not withdraw his original acquittal motion. Thus, 

[the defendant] is not now barred from raising the sufficiency of the evidence 

point at this time.
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Id. at 1258. Because Common declined to present any evidence after the government rested its 

case, we apply the ordinary standard of review for a defendant’s challenge to the sufficiency of 

the evidence.

Common argues that the evidence offered against him was insufficient to support his 

conviction because the testimony of the officers was “incredible as a matter of law.” Our sister 

circuits have cautioned when reviewing similar claims that “it is not our role, when reviewing the 

sufficiency of the evidence, to second-guess a jury’s credibility determinations.” United States v. 

Radziszewski, 474 F.3d 480, 485 (7th Cir. 2007) (internal quotation marks omitted); see also 

United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009); United States v. Gadison, 8 F.3d 

186, 190 (5th Cir. 1993). Rather, “attacks on witness credibility are simply challenges to the 

quality of the government’s evidence and not to the sufficiency of the evidence.” United States 

v. Farley, 2 F.3d 645, 652 (6th Cir. 1993). We may reverse a credibility determination only 

when it was “‘physically impossible for the witness to observe that which he or she claims 

occurred, or impossible under the laws of nature for the occurrence to have taken place at all.’”

United States v. Davis, No. 92-1370, 1992 WL 392974, at *1 (6th Cir. Dec. 21, 1992) (quoting 

United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir. 1989)); see also Caraway, 411 F.3d at 

682 (noting that “courts need not blindly accept implausible stories swallowed by jurors” if the 

testimony “defies physical realities”) (citation omitted). Thus, “the test for incredibility of a 

witness is an extremely stringent one.” Gadison, 8 F.3d at 190 (internal quotation marks

omitted).
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Common argues that the officers’ testimony was not credible because it was “impossible 

under the laws of nature” for one of two reasons: (1) it was physically impossible for Common

to have thrown the pistol from the middle of the street to the tree line at the back of the property

or (2) it is against the laws of nature that Common could toss the pistol into dewy grass without 

getting it wet. First, Common claims that it is physically impossible to toss the small handgun 

underhanded from the middle of Newton Street to the tree line at the back of the property 156 

feet away. Even if that is true, Common’s argument is without merit because the officers did not 

testify that they saw Common toss the gun from the middle of the street, and they were not clear 

about where the gun was found. Instead, they testified that Common walked up to the edge of 

the yard before he tossed the gun. R. 33 (Trial Tr. at 45, 72) (Page ID #105, 132). Common has 

not provided any evidence that it would be physically impossible to toss the gun from the edge of 

the yard to the tree line. Furthermore, Officer Bramlett testified that the gun was recovered only 

about ten feet away from the driveway. Id. at 47 (Page ID #107). To the extent that the officers 

gave inconsistent testimony regarding the precise location of the gun, we must defer to the jury’s 

credibility determination regarding which testimony to believe. See United States v. Jefferson, 

149 F.3d 444, 445 (6th Cir. 1998). Accordingly, Common’s first argument is without merit.

Second, Common argues that Officer Winbush’s testimony was incredible because he 

asserted that, although “there was a lot of condensation on the ground,” the gun was dry when he 

retrieved it and had not left an indentation in the ground. R. 33 (Trial Tr. at 73) (Page ID #133).

There is nothing improbable about this testimony: The gun landed in the grass only a few 

minutes before it was recovered, and it is entirely possible that water would not have collected 
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on the gun in that short amount of time. Officer Winbush’s testimony about the gun’s failure to 

make an indentation in the ground or to collect condensation supported his inference that it had 

only recently landed in the location in which it was found. Even if it were extremely unlikely 

that a gun could have landed in a dewy lawn without accumulating any moisture, the sequence of 

events described by Officer Winbush is not physically impossible. See Davis, 1992 WL 392974, 

at *2 (“Whether the testimony is implausible or difficult to believe is a question for the jury.”).

Therefore, Common’s second argument is also without merit.

The jury did not have to believe testimony that violated the laws of physics in order to

accept the officers’ testimony as credible. From the testimony produced at trial, the jury could 

have rationally concluded that Common was in possession of the gun that the officers found in 

the yard. Accordingly, the jury’s verdict was supported by “substantial and competent 

evidence.” See Beddow, 957 F.2d at 1334.

II. CONFRONTATION CLAUSE

In addition to the claim raised by Common’s counsel on appeal, Common submitted a 

supplemental pro se brief arguing that his Confrontation Clause rights were violated by 1) the 

playing of two 911 calls at trial and 2) the testimony of officers regarding what the 911 caller had 

said. Although we ordinarily decline to address pro se arguments when a defendant is 

represented by counsel on appeal, see United States v. Morrow, 497 F. App’x 583, 587 (6th Cir. 

2012) (citing United States v. Williams, 641 F.3d 758, 770 (6th Cir. 2011)), whether or not we 

consider Common’s constitutional claims in the instant case makes no difference to the outcome.

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the 
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witnesses against him.” U.S. Const. amend. VI. Therefore, testimonial hearsay statements are 

admissible only when the declarant is unavailable to testify and the defendant had an opportunity 

before trial to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 53–54 (2004).

Testimony is “[a] solemn declaration or affirmation made for the purpose of establishing or 

proving some fact” which may take the form of a formal statement to law-enforcement officers.

Id. at 51–52 (internal quotation marks omitted). “Statements are nontestimonial when made in 

the course of police interrogation under circumstances objectively indicating that the primary 

purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis 

v. Washington, 547 U.S. 813, 822 (2006) (describing a particular 911 call as a nontestimonial 

statement made in the face of an ongoing emergency); see also Michigan v. Bryant, 131 S. Ct. 

1143, 1157–60 (2011); United States v. Ballew, 491 F. App’x 589, 591 (6th Cir. 2012).

Common did not object on Confrontation Clause grounds during trial when the 

government played a tape of the 911 calls for the jury. See R. 33 (Trial Tr. at 13–15) (Page ID 

#73–75). Accordingly, we review this issue for plain error. United States v. Deitz, 577 F.3d 672, 

683 (6th Cir. 2009). The statements made during the 911 call were not testimonial in nature 

because they were made to assist the police in responding to a dangerous situation, namely a man 

in possession of a gun, while the caller faced an ongoing emergency. Therefore, the 

Confrontation Clause was not violated by the statements’ admission, either through the playing 

of the tapes themselves or through the testimony of the officers.2 Moreover, any Confrontation 

 

2Common also appears to argue that the officers’ testimony that they heard the female 

victim shout “he’s got a gun” after they arrived at the scene was a Confrontation Clause 
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Clause violation would have been harmless under the circumstances. The substantive truth of 

the 911 caller’s statements (e.g. that “he’s got a gun”) was not necessary to the government’s 

case because other testimony established that Common was in possession of a firearm. See 

United States v. Savoires, 430 F.3d 376, 382 (6th Cir. 2005). Importantly, each of the testifying 

officers independently described having seen a gun or pistol in Common’s hand. See United 

States v. Hearn, 500 F.3d 479, 485 (6th Cir. 2007); cf. United States v. Nelson, 725 F.3d 615, 

621 (6th Cir. 2013) (concluding that the admission of a hearsay statement that a man matching 

the defendant’s description had a gun was not harmless because “no officer testified to having 

seen [the defendant] possess a gun”). Accordingly, there is no merit to Common’s pro se 

argument that his Confrontation Clause rights were violated.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Common’s conviction for being a felon in 

possession of a firearm.

 

violation. At trial, Common’s attorney did not object when the first two officers testified 

regarding the victim’s statements. See R. 33 (Trial Tr. at 18, 44) (Page ID #78, 104). She raised 

an objection when the third officer gave similar testimony, id. at 71 (Page ID #131), but then 

withdrew it after the government argued that the testimony was admissible under the excited 

utterance exception to the hearsay rule. See Fed. R. Evid. 803(2). As with the 911 statements, 

the female victim’s statements after the police officers arrived at the scene of the crime were 

nontestimonial in nature. Therefore, the Confrontation Clause was not violated by the officers’ 

testimony.