     Case: 09-10280     Document: 00511028493          Page: 1    Date Filed: 02/17/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 17, 2010
                                     No. 09-10280
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RYAN DENNIS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-109-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Ryan Dennis appeals his jury conviction and resulting 288-month prison
sentence for being a felon in possession of a firearm. Dennis argues that the
evidence was insufficient to sustain his conviction and also that the district court
abused its discretion in overruling his evidentiary objection, pursuant to Rule
403 of the Federal Rules of Evidence, to the admission of his witness’s prior
inconsistent statement.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                No. 09-10280

      Dennis contends that the evidence is not sufficient to support the jury’s
verdict. Although Dennis moved for a judgment of acquittal at the close of the
Government’s case-in-chief, he failed to renew the motion at the close of all
evidence. Therefore, review is limited to whether there has been a “manifest
miscarriage of justice,” which occurs when the record is devoid of evidence of
guilt or if the evidence on a key element of the offense is so tenuous that a
conviction would shock the conscience. See United States v. Miller, 576 F.3d 528,
530 & n.2 (5th Cir.) (internal citations and quotation marks omitted), cert.
denied, 130 S. Ct. 652 (2009); United States v. Smith, 203 F.3d 884, 887 (5th Cir.
2000) (same).
      In order to return a verdict of guilty, the jury had to determine that the
Government proved that Dennis was previously convicted of a felony and
knowingly possessed a firearm that was in or affected interstate commerce. See
United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005); § 922(g)(1). Dennis
does not dispute that he was previously convicted of a felony or that the gun
traveled in interstate commerce; however, he challenges the sufficiency of the
evidence to establish knowing possession. The knowledge element for possession
of contraband is rarely proven by direct evidence, see United States v. Lopez, 74
F.3d 575, 577 (5th Cir. 1996); however, knowledge can be established by
inference and circumstantial evidence. United States v. Garcia-Flores, 246 F.3d
451, 454 (5th Cir. 2001).
      The Government presented sufficient evidence to establish that Dennis
constructively possessed the weapon by having “knowledge of and access to” the
weapon. See United States v. Anderson, 559 F.3d 348, 353 (5th Cir.) (internal
citations and quotation marks omitted), cert. denied, 129 S. Ct. 2814 (2009).
Contrary to Dennis’s argument, it is immaterial that he did not live at the house
where the weapon was discovered because residence is not determinative of the
issue. United States v. De Leon, 170 F.3d 494, 497 (5th Cir. 1999). The evidence



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revealed that Dennis was more than a “casual visitor” to the location and that
he had the permission and authority to keep personal items in the residence. Id.
       During a two-week surveillance period and prior to executing a search
warrant on the residence, officers observed Dennis enter the house at will on
multiple occasions. A neighbor, Beatries Edwards, testified that she saw Dennis
at the residence almost every day and believed that he lived there based on her
own observations. Dennis also received personal mail from the City of Fort
Worth at the residence, and felt comfortable enough to leave a traffic citation in
the bedroom, where officers discovered three weapons.         Moreover, Dennis
expressed knowledge of intimate details of the weapons, such as the number of
bullets each weapon contained or whether or not the weapon was operable, and
admitted to agents that he had previously handled the weapons.
       A review of the sufficiency of the evidence does not include a review of
witnesses’ credibility or the weight of the evidence, as such determinations are
within the jury’s sole province. United States v. Parker, 505 F.3d 323, 331 (5th
Cir. 2007); United States v. Myers, 104 F.3d 76, 78-79 (5th Cir. 1997).           In
addition, it is immaterial that Dennis did not own the gun because establishing
ownership is not necessary to prove possession. United States v. Jones, 133 F.3d
358, 362 (5th Cir. 1998). Dennis has not shown that his conviction resulted in
a “manifest miscarriage of justice,” and the record is not devoid of evidence to
demonstrate that Dennis knowingly possessed a firearm. Smith, 203 F.3d at
887.
       Dennis argues that the district court abused its discretion by overruling
his Rule 403 objection and allowing the Government to enter into evidence a
prior statement made by Sherrian Allen, the mother of Dennis’s child and the
occupant of the residence where the weapons were discovered. Allen testified
that Dennis did not live with her, that she owned the pistols found in the
bedroom, and that Dennis had no knowledge of the weapons. The Government
attempted to impeach Allen by introducing a prior inconsistent written

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statement in which she told agents that Dennis had owned one of the guns for
four years and that she had seen him handle another.
      The standard for reviewing an alleged Rule 403 violation is “especially
high” and requires a showing of a “clear abuse of discretion.” United States v.
Setser, 568 F.3d 482, 495 (5th Cir.) (United States v. Fields, 483 F.3d 313, 354
(5th Cir. 2007)), cert. denied, 130 S. Ct. 437 (2009). “Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” F ED. R. E VID. 403. This court has explained that “all
probative evidence is by its very nature prejudicial;” therefore, district courts
should exclude evidence in limited circumstances and only in such cases where
the “prejudicial effect substantially outweighs the probative value.” United
States v. Powers, 168 F.3d 741, 749 (5th Cir. 1999) (internal citations and
quotations omitted). It is within the sound discretion of the district court to
balance the probative value of evidence against its prejudicial effect. United
States v. Dula, 989 F.2d 772, 778 (5th Cir. 1993).
      Here, the admitted evidence was highly probative because the Government
sought to admit Allen’s prior inconsistent statement, not for the truth of the
matter asserted, but, rather, to impeach her credibility. In contrast, the
prejudicial effect of the admitted evidence was minimal. Because there was
sufficient evidence, absent the statement, for the jury to conclude that Dennis
at least constructively possessed the firearm, any error in admitting the prior
statement was harmless. United States v. Hawley, 516 F.3d 264, 268 (5th Cir.
2008), cert. denied, 129 S. Ct. 994 (2009). Moreover, the district court properly
admonished the jurors that they were to consider Allen’s prior inconsistent
statement only in evaluating her credibility and not for the truth of the
statement’s contents. The jury is presumed to have followed the district court’s
instructions. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 762-63 (5th

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Cir. 2008) (finding no error in admitting a prior inconsistent statement as
impeachment evidence where the district court provided the proper limiting
instructions to the jury).
      Dennis’s argument that the district court erred in not providing an on-the-
record balancing of the statement’s probative and prejudicial value is equally
without merit. On-the-record findings are generally required only where counsel
requests a recitation of the balancing and where the balancing occurs in the
context of an analysis involving extrinsic evidence. United States v. Maceo, 947
F.2d 1191, 1199 & n.4 (5th Cir. 1991). Dennis’s counsel did not request that the
district court provide an on-the-record balancing, and in light of the fact that the
evidence in question did not involve extrinsic acts, the district judge was not
required to provide such a balancing in open court. Id. The district court did not
abuse its discretion in admitting Allen’s prior inconsistent statement because the
statement’s prejudicial effect did not “substantially outweigh” its probative
value. See Powers, 168 F.3d at 749. Accordingly, the judgment is AFFIRMED.




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