     Case: 15-41473      Document: 00513724908         Page: 1    Date Filed: 10/19/2016




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

                                    No. 15-41473                               FILED
                                  Summary Calendar                      October 19, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANTHONY JEROME SMITH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:14-CR-72-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Anthony Jerome Smith was convicted by a jury of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He
argues that the trial evidence was insufficient to support his conviction
because the government did not establish that he knowingly possessed a
firearm. Smith preserved his challenge to the sufficiency of the evidence, so




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41473

our review is de novo. See United States v. Frye, 489 F.3d 201, 207 (5th Cir.
2007).
      When the evidence and all reasonable inferences from it are viewed in
the light most favorable to the jury’s verdict, a rational jury could have found
that there was sufficient evidence to establish that Smith constructively
possessed a gun. See United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th
Cir. 2014) (en banc); United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012);
United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992). Although not
dispositive because Smith was not the sole occupant of the home where the gun
was found, the evidence established that he had a degree of dominion and
control over the home. See United States v. Hinojosa, 349 F.3d at 200, 203-04
(5th Cir. 2003); United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999).
Smith was a regular resident at the home occupied by his occasional girlfriend,
Keisha Douglas, her mother, and her child by Smith. He occasionally lived
there; he stayed there overnight for extended periods of time, including on the
night before the gun was found; he kept personal items at the home and was
seen there by officers; and he had mail in his name delivered to that home. See
De Leon, 170 F.3d at 496-97; United States v. Ybarra, 70 F.3d 362, 366 (5th
Cir. 1995).
      The evidence further supports the inference that Smith had the ability
to exercise dominion or control over the gun. See De Leon, 170 F.3d at 496.
The jury could have reasonably inferred that, because the firearm was kept in
a home that Smith often visited and occupied because of his close relationship
with a person who lived there, he could access the gun easily. Cf. United States
v. McKnight, 953 F.2d 898, 903 (5th Cir. 1992) (approving use of jury
instruction stating that dominion or control may be exercised directly or
through another person).



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                                  No. 15-41473

      The evidence also supports the inference that Smith was familiar with
the gun and knew about its presence in the home. See United States v. Meza,
701 F.3d 411, 419 (5th Cir. 2012). The gun was found in plain view in a place
that was conveniently accessible and plainly visible to Smith. See id. at 421.
There was no evidence to link Douglas or her mother to the gun, so the jury
could have reasonably inferred that Smith – given the degree of his exercise of
dominion over the home – knew about the gun and that its presence in the
home was connected to him. See Terrell, 700 F.3d at 760.
      Evidence recovered from cell phones seized from Smith further support
the conclusion that he had knowledge of the gun and access to it. See Meza,
701 F.3d at 419. There was a photograph of a gun on Smith’s cell phone, and
it was determined to be the same gun that was found at Douglas’s home. This
is strong circumstantial evidence that Smith knew about the gun and
controlled it even if, as he asserts, the picture does not prove that he actually
possessed it. See id. at 421. Also, text messages recovered from Smith’s cell
phones reflect that Douglas (1) advised Smith, without refutation, that she
found his gun; (2) believed that he was “dumb” for having it despite a prior
felony conviction; and (3) turned it over to police in retaliation for a domestic
dispute with Smith.       The messages further reflect that, on learning that
Douglas gave the gun to police, Smith, who did not disavow the gun as his,
criticized Douglas, calling her a “snitch,” and expressed an understanding that
he was subject to federal prosecution, and likely conviction, because Douglas
gave the gun to police.
      Smith contends that the gun cannot be attributed to him because there
was no evidence that he owned the firearm and that other people, especially
Kevin Reeves, had access to Douglas’s home. Ownership, however, is not
necessary for constructive possession. See United States v. Jones, 133 F.3d



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358, 362 (5th Cir. 1998); § 922(g)(1). Smith’s claim that Reeves was responsible
for the gun was raised at trial, and the jury did not find that theory persuasive.
We will not second-guess the jury’s conclusion, see United States v. Ramos-
Garcia, 184 F.3d 463, 466 (5th Cir. 1999), or deem the evidence to be
insufficient simply because it fails to exclude every reasonable hypothesis of
innocence or support every conclusion except that of guilt, see United States v.
Anderson, 174 F.3d 515, 522 (5th Cir. 1999).
      The judgment of the district court is AFFIRMED.




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