                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 11-3190
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Antoine Porter,                        *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 16, 2012
                                Filed: August 2, 2012
                                 ___________

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
                           ___________

SHEPHERD, Circuit Judge.

       Antoine Porter was charged with being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Porter was convicted after a jury trial and was
sentenced to 33 months imprisonment. Porter appeals his conviction arguing the
district court1 erred in denying his motion for judgment of acquittal based on
insufficient evidence and erred in overruling Porter’s objection to statements made
by the Government’s counsel during closing arguments. We affirm.


      1
        The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
                                          I.

       On July 21, 2010, Officers Joshua Becherer and Jason Chambers conducted
surveillance of a Phillips 66 gas station on Broadway Street in St. Louis, Missouri.
The officers observed a red Dodge Charger pull into the gas station parking lot and
observed the driver, who turned out to be Porter, exit the vehicle clutching the pocket
of his shorts with his hand. Officer Becherer was trained in how to identify an armed
gunman and believed the way the driver was clutching his pocket indicated he was
carrying a weapon. The officers observed the driver remove an object from his
pocket, place it underneath his vehicle behind his tire, and go into the gas station.
Through Officer Becherer’s training, he had learned that it was common for an armed
gunman to remove his weapon from his person to conceal it before entering a location
where he would be for a period of time.

       When Porter exited the gas station, the officers identified themselves as
policemen and asked if Porter would speak with them. Eventually, Officer Becherer
searched the area under Porter’s vehicle where he had observed Porter place an object
and found a firearm. Porter informed the officers that he was “the muscle” of the gas
station, that the gas station was a violent area, and that those were the reasons why
he carried a weapon.

      Porter was charged with being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). Porter pled not guilty to the charge and went to trial. He
was convicted by a jury and now appeals.

                                          II.

       At the close of the Government’s case, Porter made a motion for acquittal
based on insufficient evidence under Federal Rule of Criminal Procedure 29. The
court denied the motion, and Porter now appeals that ruling. We “‘review[] de novo

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a district court’s denial of a motion for judgment of acquittal.’” United States v.
Augustine, 663 F.3d 367, 373 (8th Cir. 2011) (citation omitted). A judgment of
acquittal must be entered for “‘any offense for which the evidence is insufficient to
sustain a conviction.’” United States v. Vega, 676 F.3d 708, 721 (8th Cir. 2012)
(quoting Fed. R. Crim. P. 29(a)), petition for cert. filed, (U.S. June 21, 2012) (No. 11-
11081). “‘In reviewing the sufficiency of the evidence to support a guilty verdict, we
look at the evidence in the light most favorable to the verdict and accept as
established all reasonable inferences supporting the verdict.’” Augustine, 663 F.3d
at 373 (quoting United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000)).

       Under 18 U.S.C. § 922(g)(1), “the government must prove the defendant (1)
had previously been convicted of a crime punishable by a term of imprisonment
exceeding one year, (2) knowingly possessed a firearm, and (3) the firearm was in or
[a]ffecting interstate commerce.” United States v. Varner, 678 F.3d 653, 656 (8th
Cir. 2012). Porter challenges the sufficiency of the evidence as to the second
element: that he knowingly possessed the firearm. Porter’s principal argument is that
the firearm had no identifiable fingerprints or DNA on it when it was recovered. He
also argues that Officer Becherer could not “visually verify” that the item he saw
Porter place under his car was a firearm. Finally, Porter argues that the trial testimony
contradicted the statement Porter allegedly made to the officers that he was the
“muscle” of the gas station because Porter’s uncle testified that Porter did not provide
security for the station.

       As to Porter’s attack on the sufficiency of the evidence regarding the lack of
fingerprints or DNA found on the firearm, “forensic evidence is not necessary” for
a firearms conviction. Varner, 678 F.3d at 657. Officer David Menendez, a firearms
examiner, testified he only discovers fingerprints on firearms in three to five percent
of cases; thus, he was not surprised that he did not discover fingerprints on the seized
weapon.



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       Although forensic evidence was absent, there was ample evidence to support
the jury’s conviction. Officer Becherer testified that the area where Porter placed the
object was well illuminated due to numerous lights surrounding the parking lot.
Officer Becherer also testified that he observed Porter place what he believed was a
weapon under Porter’s vehicle; that no one other than Porter had access to the area
under the vehicle; that Officer Becherer did in fact seize a firearm from under the
vehicle; and that Porter confessed his reasons for possessing the firearm. To the
extent that Porter quibbles with Officer Becherer’s recitation of the events including
the Officer’s description of the visibility conditions at the station and of Porter’s
admission that he was the muscle of the station, such “arguments go directly to the
officer[’s] credibility . . . , a determination that is uniquely within the province of the
jury.” Varner, 678 F.3d at 657. Accordingly, the court did not err in denying Porter’s
motion for acquittal.

                                           III.

       In addition to challenging the sufficiency of the evidence, Porter argues the
district court erred in overruling his objection to statements made by the
Government’s counsel during closing arguments. Porter called his uncle, Raymond
Porter, as his only witness, and Raymond Porter testified that at the time of Porter’s
arrest, employees typically parked their cars in an area of the parking lot where there
was no lighting. However, Officer Becherer testified the light was sufficient to
enable him to observe Porter placing the object beneath his car. In his closing
argument, the Government’s counsel stated:

            There was one witness provided by the defense, Mr. Porter,
       Raymond Porter. . . . He was not there that night. . . . Who was there?
       The defendant, and also two police officers, and they testified
       unequivocally to what they saw that night. They didn’t hesitate.



                                           -4-
       Porter argues these statements violated Porter’s right not to testify, which is
guaranteed by the Fifth Amendment, because the statements suggested to the jury that
Porter’s failure to testify indicated his guilt. The district court overruled Porter’s
objection to these statements, finding they were not “an inappropriate comment on
the defendant’s right not to testify,” because the statements referred to the testimony
of others and not of the defendant.

       “[P]rosecutorial misconduct occurs when the prosecutor comments at trial,
directly or indirectly, on the defendant’s failure to testify.” United States v. Triplett,
195 F.3d 990, 995 (8th Cir. 1999). “Indirect references to a defendant’s failure to
testify are . . . prohibited if they . . . are such that the jury would naturally have
understood them as a comment on defendant’s failure to testify.’” Sidebottom v.
Delo, 46 F.3d 744, 759 (8th Cir. 1995) (quoting Pollard v. Delo, 28 F.3d 887, 890
(8th Cir. 1994)). “‘[T]he trial court has broad discretion in controlling closing
arguments[,] and this court will not reverse absent a showing of an abuse of
discretion.’” Triplett, 195 F.3d at 995 (citation omitted).

       Porter relies on United States v. Triplett to support his contention that the jury
would have understood Government’s counsel’s arguments as a comment on Porter’s
failure to testify. In Triplett, the defendant was tried for possession with the intent
to distribute heroin. Triplett, 195 F.3d at 992. In the rebuttal portion of closing
arguments, the Government counsel stated: “What you didn’t hear was evidence that
the defendant didn’t possess the drugs. You never heard that. You never heard
evidence that the defendant didn’t know that he possessed the drugs.” Id. at 994. We
noted that the Government’s theory was that Triplett acted alone in distributing
heroin. We reasoned that

              [t]he jury, therefore, would have reasonably understood the
      prosecutor’s statement—“What you didn’t hear was evidence that the
      defendant didn’t possess the drugs”—as a reference to Triplett’s silence
      at trial because, according to the government’s own theory of the case,

                                           -5-
      no one other than Triplett himself could have testified about his
      possession of the drugs.

Id. at 995.

       We find Triplett distinguishable from the case at hand. The Government’s
counsel here merely sought to negate Porter’s main argument at trial: that diminished
visibility conditions at the gas station would have prevented the officers from seeing
what Officer Becherer testified they saw. We think the counsel’s statements:

           There was one witness provided by the defense, Mr. Porter,
      Raymond Porter. . . . He was not there that night. . . . Who was there?
      The defendant, and also two police officers, and they testified
      unequivocally to what they saw that night.

would have been fairly interpreted by the jury as the Government’s attempt to point
out that the testimony as to the visibility conditions was one witness’s word against
another, but only one of the witnesses was actually present to observe the visibility
conditions. This jury argument was not a comment on Porter’s failure to testify but
instead was merely an analysis of the testimony presented. Accordingly, the district
court did not abuse its discretion in overruling Porter’s objection to the statements.

                                         IV.

      For the foregoing reasons, we affirm.
                      ______________________________




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