                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 2 1998
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 vs.                                                    No. 97-3330
                                                  (D.C. No. 97-CR-40016)
 EARL GENE RAMSEY,                                       (D. Kan.)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT      *




Before PORFILIO , KELLY , and HENRY , Circuit Judges.         **




       Mr. Ramsey appeals from his conviction of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 87

months, followed by three years of supervised release. Our jurisdiction arises under

28 U.S.C. § 1291, and we affirm.

       Mr. Ramsey’s sole issue on appeal is the sufficiency of the evidence. He



       This order and judgment is not binding precedent, except under the doctrines
       *

of law of the case, res judicata, and collateral estoppel. This court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment
may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
          After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material assistance
in the determination of this appeal.  See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
The cause is therefore ordered submitted without oral argument.
contends that the evidence is insufficient to establish constructive possession of the

firearm because the officers testifying at trial presented mutually exclusive accounts

of Mr. Ramsey’s relationship to the firearm that was discovered.

       To prove a violation of § 922(g)(1), the government was required to show

Mr. Ramsey’s knowing possession of a firearm.        See United States v. Capps , 77 F.3d

350, 352 (10th Cir.), cert. denied , 518 U.S. 1027 (1996). Although the government

may rely upon actual or constructive possession,        see United States v. Taylor , 113

F.3d 1136, 1144-45 (10th Cir. 1997), the evidence in this case when viewed in the

light most favorable to the government was sufficient for a rational trier of fact to

find actual possession beyond a reasonable doubt--that Mr. Ramsey had physical

control over a firearm, and dropped it on the ground prior to being apprehended.

Merely because one of the officers from a different vantage point did not observe

Mr. Ramsey concealing or dropping a firearm did not preclude the jury from

believing the other officer who so testified.

        Contrary to Mr. Ramsey’s position, the issue is whether a reasonable jury

could have found possession beyond a reasonable doubt, not whether the evidence

in this case is consistent with both innocence and guilt.    See United States v. Hooks ,

780 F.2d 1526, 1530-31 (10th Cir.),     cert. denied , 475 U.S. 1128 (1986). Moreover,

conflicts in the officers’ testimony about other matters, i.e., who handcuffed Mr.

Ramsey and whether a magazine was inserted in the firearm, were for the jury to


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consider in deciding credibility and such conflicts are presumed to have been

resolved in favor of the prosecution.   See Jackson v. Virginia , 443 U.S. 307, 326

(1979).

       AFFIRMED.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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