                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3140
                                    ___________

United States of America ,               *
                                         *
                      Appellee,          *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Timmie Durrell Cole, Sr.,                *
                                         *
                                         *
                     Appellant.          *
                                    ___________

                              Submitted: May 12, 2004
                                 Filed: August 25, 2004
                                  ___________

Before WOLLMAN, HEANEY, and MURPHY, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.

       Timmie D. Cole, Sr. was convicted of possession of crack cocaine with intent
to distribute and conspiracy to distribute crack cocaine. He received a mandatory life
sentence. On appeal, he challenges the sufficiency of the evidence to sustain his
conviction for possession of crack with intent to distribute. He further argues that the
district court erred by failing to grant a mistrial and in denying his request for a
missing witness jury instruction. For the reasons discussed below, we affirm.
                                  BACKGROUND

       On January 4, 2002, Jaime Hollingshed, a government informant, purchased
13.2 grams of crack cocaine in a sale arranged by Cole. On the evening of January
31, 2002, Hollingshed contacted Cole again and was directed to an apartment where
he purchased 6.1 grams of crack cocaine directly from Cole. Cole was arrested in a
raid conducted pursuant to a search warrant at that apartment in the early morning
hours of February 1, 2002. During the raid, law enforcement agents observed a large
black arm in a blue short-sleeved t-shirt break out a living room window and jam
something into the screen. A search of the apartment revealed 121.2 grams of cocaine
base packaged in small bags caught in the screen of the broken window.

        Agents questioned Kristina Harrington, a resident of the apartment, after the
raid. On February 15, 2002, she wrote and notarized a letter claiming the drugs
belonged to her and her sister. On April 3, 2002, Kristina Harrington signed a proffer
agreement with the government, promising to tell the truth. She did not mention the
letter to authorities before or after signing the proffer agreement. At Cole’s trial, she
testified that the statements in the letter were false, and that it was written under
pressure from the mother of Cole’s children.

        During the trial, the prosecution called Walter Euring to testify about an
alleged jail-house confession made to him by Cole. When asked when he met Cole,
Euring stated that he had “first met Timmie [Cole] when he first got out of prison
probably about ‘97, ‘96, somewhere around there.” (Trial Tr. Vol. IV at 562.) This
statement was made in violation of a pre-trial order excluding any reference to Cole’s
prior bad acts. Cole moved for a mistrial based on the violation and the statement’s
potential prejudicial effect on the jury. The district court1 agreed that Euring’s


      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.

                                          -2-
testimony was a violation of the pre-trial order, but found it was not sufficiently
prejudicial to warrant a mistrial. Instead, the district court offered to have that portion
of Euring’s statement stricken from the record, and to instruct the jury to disregard
the statement. Cole, not wanting to emphasize the statement, chose not to have the
jury so instructed.

       Cole’s charges stemmed from an ongoing investigation that began with the
arrest of Tyrone Parrow. Although Parrow was listed as a prosecution witness, the
government decided not to call Parrow to testify. Cole requested that the government
explain the reason for the change, but citing trial strategy, the government declined
to answer. Cole also decided not to call Parrow as a defense witness. At the end of
the trial, Cole requested a missing witness jury instruction as to Parrow. The court
denied the request to give the instruction, stating that it would be incorporating a
defense argument into the jury instruction. The court, however, did allow Cole to
present the missing witness issue during closing arguments.

       Cole was convicted of possession with intent to distribute crack cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and conspiracy to distribute crack
cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). He was sentenced to life
in prison. On appeal, Cole contends that the evidence at trial was insufficient to
establish actual or constructive possession of the drugs.2 He further argues that the
district court committed reversible error by failing to grant a mistrial, and by failing
to properly instruct the jury as to the missing witness.




      2
        Cole does not challenge the sufficiency of the evidence for his conspiracy to
distribute cocaine conviction.

                                           -3-
                                    ANALYSIS

I. Sufficiency of the Evidence

       When reviewing a jury verdict for sufficiency of the evidence, we view the
evidence in the light most favorable to the jury’s verdict, overturning it only if no
reasonable jury could conclude that the government has proven all the elements
beyond a reasonable doubt. United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir.
1997). Cole argues that his conviction for possession with intent to distribute cannot
stand because there was insufficient evidence to prove beyond a reasonable doubt that
he actually or constructively possessed narcotics. To sustain a conviction under 21
U.S.C. § 841, the jury “must find that the evidence supports that (1) the defendant
knowingly possessed [a controlled substance] and (2) that defendant intended to
distribute the [controlled substance].” United States v. Wesley, 990 F.2d 360, 364-65
(8th Cir. 1993). Constructive possession is proven by showing that a defendant “had
ownership, dominion, or control over the contraband itself, or dominion over the
premises in which the contraband is concealed.” United States v. Schubel, 912 F.2d
952, 955 (8th Cir. 1990).

      We first dispose of Cole’s argument that the witnesses at trial were not
credible, and therefore their testimony was insufficient to support a finding of
constructive possession. It is the task of the jury to evaluate the credibility of
witnesses. United States v. Enriquez, 201 F.3d 1072, 1074 (8th Cir. 2000). Cole has
provided no ground for us to deviate from this rule, thus we find his argument
regarding witness credibility unavailing.

      Cole next contends that since he did not live in the apartment, the drugs could
not be his. After careful review of the record, we agree with the district court that
Cole had ownership, dominion, and control over the narcotics found during the raid.
Although Cole was not a legal resident of the apartment, possession can also be

                                         -4-
demonstrated through the defendant’s ownership, dominion, or control over the
drugs. Schubel, 912 F.2d at 955. Harrington testified that on three or four occasions
Cole brought baseball-sized chunks of crack cocaine to her apartment where he broke
them apart and packaged them into smaller parcels. She also testified that on the
evening of January 31, 2002, Cole used her living room to cut and package cocaine.

       Jamie Hollingshed, who purchased crack from Cole on January 4 and
January 31, 2002, corroborated Harrington’s testimony about the events leading up
to and during the raid. Hollingshed testified that he spoke with Cole four times on
January 4, 2002, to arrange the first buy, which eventually took place at a location
chosen by Cole. Hollingshed bought crack on the evening of January 31, 2002, a few
hours before the early morning police raid at the apartment on February 1, 2002. The
purchase was arranged through phone calls to Cole, who provided Hollingshed with
directions to Harrington’s apartment and was there when he arrived. Hollingshed
described how Cole personally removed the drugs from the couch and handed him the
quantity that he purchased. All of these events demonstrate that Cole had control
over the drugs.

       Cole next alleges that Special Federal Officer (SFO) McAuliffe and Officer
Smull of the emergency services team gave testimony at trial that was contradictory
to actual events during the raid. While we construe this as essentially an attack on the
officer’s credibility, which we do not consider, we are willing to address it to the
extent Cole is arguing there is insufficient evidence to show possession and control
of the narcotics. After reviewing the officers’ testimony, we do not find their
testimony to be inconsistent.

        SFO McAuliffe testified that he saw a black arm with a blue-sleeved t-shirt
stick something through a window of the apartment. Two officers on the entry team
testified that Cole was the only male wearing a blue t-shirt in the living room of the



                                          -5-
apartment at the time of the raid.3 The drugs seized in the raid were found stuck in
a living room window screen. One officer testified that he observed blood droplets
on Cole’s arm, and an FBI Special Agent testified that Cole complained of cuts on
his hand after the raid.

       In short, the evidence presented at Cole’s trial was more than sufficient to
convict him of possession of crack cocaine with intent to distribute. Accordingly, we
will not disturb the jury verdict.

II. Mistrial

       Cole next argues that the district court erred in failing to grant a mistrial when
a government witness mentioned that Cole had been in prison, in violation of a pre-
trial order excluding evidence of any of Cole’s prior bad acts. We review a trial
court’s denial of a motion for a mistrial for an abuse of discretion. United States v.
Flores, 73 F.3d 826, 830-31 (8th Cir. 1996). The prejudicial effect of any improper
testimony is determined by examining the context of the error and the strength of the
evidence of the defendant’s guilt. United States v. Nelson, 984 F.2d 894, 897 (8th
Cir. 1993). “The district court ‘[i]s in a far better position to measure the effect of an
improper question on the jury than an appellate court which reviews only the cold
record.’” Id. (Citations omitted.)




      3
         Officer Smull entered the living room of the apartment only a few seconds
after the first knock by the search team. He testified that Cole was behind the couch,
near the window where the drugs were found. After being ordered to the floor, Cole
moved toward Officer Smull and fell on the ground. Cole argues that this testimony
cannot be accurate because his large girth would not allow him to fit into the small
area behind the couch. The jury was presented with photographs and diagrams of the
living room layout, and the jurors had the opportunity to evaluate this argument.
Accordingly, we find Cole’s argument unpersuasive.

                                           -6-
       The district court granted a pre-trial order excluding evidence of any of Cole’s
prior bad acts. Cole moved for a mistrial when Euring mentioned that he met Cole
when Cole was first released from prison. The district court denied the motion, but
offered to instruct the jury to disregard the statement. Cole declined the instruction
because he felt it would only emphasize the testimony.

       In the face of the strong evidence and wide array of testimony against Cole, one
objectionable statement by a prosecution witness was not sufficient to create
prejudicial error. See, e.g., United States v. Flores, 73 F.3d 826, 831-32 (8th Cir.
1996) (holding that one statement from a witness referring to prior bad acts was not
grounds for a mistrial when evaluated against the other evidence); United States v.
Muza, 788 F.2d 1309, 1312-13 (8th Cir. 1986) (same). Therefore, we find that the
district court did not err in refusing to grant a mistrial.

III. Missing Witness Instruction

       Cole finally argues that the trial court erred by refusing to give a missing
witness instruction to the jury when the government decided not to call Parrow to
testify. The decision to give a missing witness instruction is largely within the
discretion of the trial court, United States v. Johnson, 562 F.2d 515, 517 (8th Cir.
1977), thus we review denial of a request for a missing witness instruction for an
abuse of that discretion, United States v. Luvene, 245 F.3d 651, 655 (8th Cir. 2001).
The purpose of a missing witness instruction is to notify the jury that the
prosecution’s decision not to call a witness that is peculiarly within the government’s
control “may give rise to the inference that the witness would have given testimony
unfavorable to the government.” Luvene, 245 F.3d 651, 655 (8th Cir. 2001). A
missing witness instruction is generally not appropriate where the defense does not
show that the government possesses the sole power to produce the witness. United
States v. Martinez-Figueroa, 363 F.3d 679, 682 (8th Cir. 2004).



                                         -7-
        When Cole first learned that the government was not going to call Parrow as
a witness, he was informed that it was a matter of trial strategy and that the
government would not provide a reason for the decision. The government suggested
that Cole could call Parrow as a defense witness, and Cole indicated that he had made
a call to Parrow’s attorney. In the end, Cole decided not to call Parrow to testify.

      We find that Cole has not established that Parrow was unavailable as a defense
witness. Accordingly, the district court did not abuse its discretion by refusing to
provide a missing witness instruction to the jury.

                                 CONCLUSION

      Finding each of Cole’s claims of error unavailing, we affirm his conviction.
                     ______________________________




                                         -8-
