                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     June 28, 2012
                                   TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 11-2211
 VERNON LEE BAKER,                             (D.C. No. 1:08-CR-01680-PJK-1)
                                                           (D.N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge. **


      Pursuant to 18 U.S.C. § 922(g), a felon may not possess either a firearm or

ammunition. And, of course, for a defendant to be found guilty of this offense, the

Government must prove that a defendant “possessed” the firearm or ammunition. In

this case, a jury convicted Defendant Vernon Lee Baker of being a felon in

possession of a firearm and ammunition. But Defendant argues the Government did

not present sufficient evidence to the jury to support a finding he possessed a firearm

      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
and ammunition. Defendant appeals pursuant to 28 U.S.C. § 1291. “We review

sufficiency of the evidence claims de novo, asking only whether, taking the

evidence—both direct and circumstantial, together with reasonable inferences to be

drawn therefrom—in the light most favorable to the government, a reasonable jury

could find [Defendant] guilty beyond a reasonable doubt.” United States v. Davis,

437 F.3d 989, 993 (10th Cir. 2006). Applying this standard, we hold a reasonable

jury could find Defendant guilty beyond a reasonable doubt and affirm.

                                          I.

      Our story begins on a June evening outside the Sandia Vista apartments in

Albuquerque, New Mexico. Patricia Guereca, a resident of the apartment complex,

hosted her neighbor as well as five children ranging from ages two to eleven for

dinner.   The children were playing on Guereca’s apartment’s balcony when,

according to Guereca, she observed Defendant, who resided in the apartment across

from hers, “messing around with a gun” in the apartment complex’s well-lighted

parking lot. ROA vol. 4, 173, 180. Defendant, leaning on a white, older model car

resembling a Buick, spoke to Guereca’s neighbor. Guereca testified the neighbor

instructed Defendant to put the gun away because of the children. Guereca described

the gun as “big and black.” Id. at 176. Although Guereca admitted she knew little

about guns, she stated the gun was “big enough” for her to “see it and be like, whoa.”

Id. At that point, Guereca and her neighbor gathered the children inside and Guereca

testified Defendant placed the gun in the trunk of the white automobile and left. Id.

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at 177. Guereca then testified Defendant returned to the parking lot, removed the

gun from the trunk, and wiped it.      Id. at 179, 181.    Guereca further testified

Defendant handled “bullets.” Id. at 181. Guereca again made the children go inside

the apartment and she called law enforcement. Id. at 179. When calling law

enforcement, Guereca provided a false name because she “didn’t want any of this to

come back to [her].” Id. at 183.

      Two officers arrived on the scene in response to the telephone call, but the

officers found no one in the parking lot. Id. at 217. One of the officers approached

Defendant, who was on an apartment balcony, to ask about the ownership of the

Buick. Id. at 219. As the officer spoke with Defendant, the officer observed

Defendant matched the clothing description as well as the physical features of the

man provided in the dispatch notification. Id. at 220. Like Guereca, Defendant

provided a false name to the officers. Id. at 222. Defendant claimed ownership of

the automobile, but denied having a weapon in the vehicle. Id. at 226. The officers

soon discovered, however, that the automobile belonged to Defendant’s nephew.

Officers asked to search the trunk. Id. at 227. Defendant denied them access to the

trunk. Id. at 226. A field technician then sealed the automobile and law enforcement

transported the vehicle to a secure facility until it could obtain a warrant to search

the automobile. Id. at 262. Law enforcement obtained a warrant and found a loaded

Mossberg shotgun in the trunk of the automobile. Id. at 265.

      Law enforcement conducted a DNA analysis of the gun’s pump handle, grip

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area, and trigger and guard area. In addition, law enforcement swabbed four separate

shotgun casings. On three of the four casings, law enforcement detected no DNA

profiles. Id. at 358. On the fourth casing, law enforcement excluded Defendant as

a possible contributor of the DNA. Id. at 357. As to the trigger and guard area of

the gun, law enforcement also excluded Defendant as a possible contributor of the

DNA. Id. at 357. The pump handle area of the gun contained too much DNA for law

enforcement to make a determination whether Defendant contributed to the DNA.

Id. at 363. Law enforcement, however, could not exclude Defendant as a possible

contributor to the DNA on the grip area of the gun. Id. at 357. Law enforcement’s

forensic scientist determined that the DNA found on the grip area most likely

consisted of a mixture of at least three individuals. Id. at 364. The forensic scientist

next determined the DNA on the grip area most likely came from Defendant and two

unknown individuals rather than three unknown individuals. Id. at 365.

      At trial, a defense expert testified law enforcement should have tested

Defendant’s nephew and that law enforcement should have compared the nephew’s

sample to the DNA on the grip area to confirm Defendant could not be excluded as

a contributor. Defendant argued the absence of his nephew’s DNA sample rendered

law enforcement’s statistical analysis unreliable.

                                          II.

      The sole issue before us on appeal is whether the jury had sufficient evidence,

taken in the light most favorable to the Government, to convict Defendant of being

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a felon in possession of a firearm. “We do not question the jury’s credibility

determinations or its conclusions about the weight of the evidence.” Davis, 437 F.3d

at 993.   Importantly, “[t]he evidence necessary to support a verdict need not

conclusively exclude every other reasonable hypothesis and need not negate all

possibilities except guilt. Instead, the evidence only has to reasonably support the

jury’s finding of guilt beyond a reasonable doubt.” Id.

      The government must establish three elements beyond a reasonable doubt to

obtain a conviction under 18 U.S.C. 922(g)(1): “(1) the defendant was previously

convicted of a felony; (2) the defendant thereafter knowingly possessed a firearm;

and (3) the possession was in or affecting interstate commerce.” United States v.

Kitchell, 653 F.3d 1206, 1228 (10th Cir. 2011). At trial, defendant stipulated the

first and third prongs were met. Accordingly, possession is the only prong at issue.

                                        A.

      On appeal, Defendant’s challenge to his conviction first focuses on the

accuracy of law enforcement’s DNA analysis. Defendant argues his nephew had

access to the gun, as well as the trunk of the automobile. Because of this access,

Defendant contends law enforcement should have tested his nephew’s DNA against

the sample found on the gun. Defendant asserts he and his nephew likely have DNA

genetic markers in common. In addition, Defendant states one of his DNA markers

was absent from the sample found on the gun.        Defendant further argues law

enforcement should have used substrate controls to test the background DNA and

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should have eliminated DNA transfer as a means of depositing the DNA on the gun. 1

      Defendant also challenges Guereca’s eyewitness testimony. Defendant asserts

Guereca testified vaguely, particularly with respect to a description of the gun.

Defendant claims Guereca “was never asked to identify the Mossberg Maverick

Arms, Model 88, 12-gauge shotgun, Serial No. 21 MV38998L, that was listed in the

indictment.” Defendant argues the Government failed to link him to the gun named

in the indictment and the element of possession cannot be met because the jury

cannot infer the “big and black” object was the same object as the gun in the

indictment.

                                        B.

      We turn now to the evidence presented at trial, starting with Guereca’s

eyewitness testimony. Guereca testified she saw Defendant, a man she recognized

as her neighbor, holding a gun in a “pretty bright” parking lot. ROA vol. 4, 173,

180. Although she could not identify the gun as a Mossberg, she clearly identified

the object as a big and black gun. Id. at 176. She testified Defendant wiped the gun

and she saw him with “bullets.” Id. at 181. Guereca testified Defendant placed the

gun in the trunk before leaving the parking lot the first time and removed the gun

from the trunk when he returned the second time. Id. at 177, 179. Mark Andrew


      1
        According to Defendant’s expert, “substrate” is a location where one can
collect evidence. ROA vol. 4, 414. Therefore, substrate controls would test
surrounding locations such as the trunk and surfaces in the automobile to provide
information about the background DNA present at the crime scene.

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Krueger, the detective with the Albuquerque Police Department who executed the

search warrant of the automobile trunk, testified he found a loaded Mossberg shotgun

in the trunk of the automobile. Id. at 265. Moreover, Guereca not only identified

Defendant’s physical characteristics at the scene, but also identified Defendant later

at a photo array and at trial. Id. at 175, 188, 190. Guereca additionally identified

the gun at trial. The district court admitted the Mossberg listed in the indictment as

Government’s Exhibit 1. Guereca stated, “[Exhibit 1] looks like the gun that he had

. . . and it was big like that.” Id. at 189.

       We need not consider Defendant’s arguments as to the DNA analysis because

the eyewitness testimony from Guereca provides ample evidence to support the

jury’s verdict. Based on Guereca’s testimony, a jury could find Defendant held a

big, black gun in the parking lot and placed that gun in the trunk of his nephew’s

automobile. Because Guereca saw Defendant place the gun in the trunk and remove

it from the trunk, the jury could conclude Defendant had access to the trunk of the

automobile where law enforcement found the gun. The jury did not have to pile

inference upon inference to conclude Defendant knowingly possessed that gun. We

“do not question the jury’s credibility determinations or its conclusions about the

weight of the evidence.” Davis, 437 F.3d at 993. Accordingly, Defendant’s




                                               7
conviction is AFFIRMED.




                          Entered for the Court,



                          Bobby R. Baldock
                          United States Circuit Judge




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