                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                        DECEMBER 3, 2010
                            No. 09-15320
                                                           JOHN LEY
                        Non-Argument Calendar
                                                            CLERK
                      ________________________

                D. C. Docket No. 08-00333-CR-J-25-MCR


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JOHNNIE MELVIN PORTER,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                           (December 3, 2010)

Before TJOFLAT, EDMONDSON, and WILSON, Circuit Judges.
PER CURIAM:



       Defendant-Appellant Johnnie Melvin Porter appeals his convictions for

selling a firearm to a convicted felon, 18 U.S.C. § 922(d)(1), and for making a false

statement to federal authorities, 18 U.S.C. § 1001(a)(2).1 No reversible error has

been shown; we affirm.

       On appeal, Defendant challenges the sufficiency of the evidence on his

convictions. He argues that the government’s chief witness, Edward Tyrone

Ballard, was incredible as a matter of law: Ballard’s testimony about when he

bought the Hi-Point from Defendant was impossible because Defendant did not yet

have the gun himself. Defendant also argues that Ballard’s testimony was flawed

materially by bias and disputed by other parties to the extent that no rational trier

of fact could rely on it to sustain a conviction.

       We review the sufficiency of the evidence de novo; and we ask whether,

after viewing the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor, a

reasonable trier of fact could have found the essential elements of the crime



       1
         The accusations in the indictment included that Defendant sold a 9-millimeter Hi-Point
pistol (the “Hi-Point”) to a convicted felon and that Defendant later told federal authorities the
Hi-Point had been stolen.

                                                 2
beyond a reasonable doubt. United States v. Spoerke, 568 F.3d 1236, 1244 (11th

Cir. 2009). The jury is responsible for weighing and resolving conflicts in the

evidence. United States v. Pearson, 746 F.2d 787, 794 (11th Cir. 1984).

       Determining witness credibility is the “sole province” of the jury. United

States v. Hamaker, 455 F.3d 1316, 1334 (11th Cir. 2006). And we will not disturb

the jury’s verdict on appeal unless the testimony is incredible as a matter of law.

United States v. Flores, 572 F.3d 1254, 1263 (11th Cir.), cert. denied, 130 S.Ct.

561, 562, 568 (2009). “Testimony is only ‘incredible’ if it relates to facts that the

witness could not have possibly observed or events that could not have occurred

under the laws of nature.” Id. (citations and quotation omitted).

       Here, conviction on both counts turns on the single issue of whether

Defendant sold the Hi-Point. If Defendant sold the Hi-Point, this fact necessarily

negates his theory that the gun was stolen and renders false his statements to that

effect. See United States v. McCarrick, 294 F.3d 1286, 1290-91 (11th Cir. 2002)

(explaining that, on occasion, a false statement charge and the underlying charge

will both be contingent on the jury’s finding of a single fact).2


       2
          The other elements of the offenses are not in dispute. On the firearm count, Defendant
conceded that he knew Ballard was a convicted felon. United States v. Peters, 403 F.3d 1263,
1268 (11th Cir. 2005) (listing the elements of a section 922(d) offense). And on the false
statement count, Defendant conceded that he made a statement to federal agents which, if indeed
false, was material and intentional and within the agents’ purview. McCarrick, 294 F.3d at 1290
(listing the elements of a section 1001 offense).

                                               3
       Ballard, Defendant’s cousin, testified that he bought the Hi-Point from

Defendant at Defendant’s house for $190 and that Defendant’s girlfriend, Shameka

McCray, and Ballard’s girlfriend, Danielle Tran, both were present at the

transaction as was Defendant’s father.3 Ballard earlier had given Defendant $50 as

a down payment for the Hi-Point. Ballard could not remember the exact date he

bought the Hi-Point, but stated that it was about a month or two before early

September 2006, when he had gone to a local shooting range with Defendant,

McCray, and Tran. Tran’s testimony corroborated Ballard’s account that he

bought the Hi-Point from Defendant in the summer of 2006, as well as the people

present at the transaction. And a police officer’s testimony corroborated that

Ballard gave Defendant a $50 down payment for the gun.

       That Ballard’s testimony had weaknesses is without doubt. He was a

convicted criminal, and his criminal behavior was a source of bias in that it gave

him incentive to cooperate.4 And Ballard’s recollection of the transaction was

affected by his admitted substance abuse at the time. His account of when he

purchased the gun is unclear and, as Defendant notes, suggests that he purchased



       3
          Trial testimony revealed that police officers discovered the Hi-Point during a routine
traffic stop of Ballard. A background check disclosed that Ballard was a convicted felon.
       4
        In exchange for his testimony against Defendant, Ballard received a 5-year drug
sentence when the government could have sought a minimum 10-year sentence and additionally
charged him with firearms offenses.

                                                 4
the Hi-Point from Defendant before Defendant had even received it himself on 6

August 2006. But these weaknesses do not make Ballard’s testimony legally

incredible.

      Other witnesses corroborated material aspects of Ballard’s account of the

transaction, including where it took place and who was present. Ballard admitted

he could not be certain about the timing of the purchase and explicitly left open the

possibility that the sale could have been in August. As such, this account did not

render it physically impossible that Ballard purchased the Hi-Point after Defendant

received it in August 2006. The date of sale was a point of conflict in the

government’s central theory that Defendant sold Ballard the gun, which the jury

was entitled to resolve in the government’s favor by concluding that Ballard

bought the Hi-Point from Defendant at some point after Defendant already had

possession of it. See Pearson, 746 F.2d at 794.

      And by testifying himself, Defendant placed his own credibility

at issue. We have concluded that when a criminal defendant chooses to testify on

his own behalf, his statements, “if disbelieved by the jury, may be considered as

substantive evidence of the defendant’s guilt,” meaning that the jury may conclude

that the opposite of his testimony is true. United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995) (emphasis in original). Here, Defendant admitted at trial to



                                          5
changing repeatedly his story about the location from which the firearm was stolen

and provided inconsistent justifications for those changes.5 Defendant also

testified that Ballard personally confessed to stealing the Hi-Point but that

Defendant did not call the police or tell investigating agents because he did not

think to do so. Defendant maintained on the stand that he was surprised when

agents later informed him that the Hi-Point was recovered from Ballard. The jury

was entitled to disbelieve Defendant’s account that the Hi-Point was stolen from

him and to conclude that the opposite was true.

       In sum, the evidence developed at trial presented two stories that stood in

conflict to each other. The jury decided to credit one while discrediting the other,

resulting in Defendant’s conviction. We see no reason to undermine the jury’s

credibility determination and no reason to disturb the jury’s verdict. See United

States v. Yost, 479 F.3d 815, 818-19 (11th Cir. 2007) (we will disturb a guilty

verdict only if “no trier of fact could have found guilt beyond a reasonable doubt”).

       AFFIRMED.




       5
         Defendant initially told investigating officers that the theft occurred out of his father’s
truck, which was parked in front of the house that Defendant shared with his father. But later, he
told officers that the theft occurred in the parking lot of a Best Buy retail store.

                                                 6
