     Case: 16-30155       Document: 00513758007         Page: 1     Date Filed: 11/14/2016




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

                                     No. 16-30155
                                                                                      Fifth Circuit

                                                                                    FILED
                                   Summary Calendar                         November 14, 2016
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                  Plaintiff - Appellee

v.

MARCUS MILTON,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:15-CR-68-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Marcus Milton challenges his jury-trial conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The
sole claim on appeal is that the evidence was insufficient to support his
conviction because it did not establish he knowingly possessed the firearm,
which was found in the trunk of a vehicle parked outside his residence.
Because Milton preserved this issue in district court through a motion for


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-30155

judgment of acquittal after the Government’s case (he did not present
evidence), review is de novo. E.g., United States v. Frye, 489 F.3d 201, 207 (5th
Cir. 2007).
      Louisiana Probation Officers, including Milton’s, arrived at his residence
in December 2014 to arrest him for violating the conditions of his parole. After
arresting Milton, the Officers searched a vehicle parked in front of his
residence.    Next to that vehicle, they identified and searched a vehicle
belonging to Milton’s girlfriend.    Milton’s probation officer had seen him
driving, working on, or with this second vehicle on three prior dates. Within
the vehicle, Officers found two traffic tickets issued to Milton while he was
driving it, an envelope with his name on it, his social security card, and a .40
caliber semi-automatic firearm. DNA evidence obtained from the firearm’s
grip indicated Milton had physically possessed the firearm.
      As noted, Milton maintains the evidence was insufficient to support his
conviction because it did not establish he had knowing possession of the
firearm. In support, he claims: his conviction should be vacated because the
evidence gives equal, or nearly equal, circumstantial support to a theory of
guilt and a theory of innocence (discussed infra as the equipoise rule); there
was no direct evidence that he had control over the vehicle in which the firearm
was found, or knowing possession of it; there were only a few pieces of evidence
connecting him to the vehicle; and the DNA evidence was not conclusive and
could have been transferred to the firearm from other items in the trunk.
      When considering the sufficiency of the evidence, all evidence,
circumstantial or direct, is viewed “in the light most favorable to the
Government with all reasonable inferences to be made in support of the jury’s
verdict”. United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012) (internal
brackets and citation omitted).     The jury may choose among reasonable



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constructions of the evidence. United States v. Mitchell, 484 F.3d 762, 768 (5th
Cir. 2007). Along that line, “[t]he weight and credibility of the evidence are the
sole province of the jury”, United States v. Parker, 505 F.3d 323, 331 (5th Cir.
2007); and it is not necessary that the evidence exclude every reasonable
hypothesis of innocence, United States v. Alaniz, 726 F.3d 586, 601 (5th Cir.
2013). In sum, a verdict will be upheld if any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. United
States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
      To obtain a conviction under 18 U.S.C. § 922(g)(1), the Government must
prove beyond a reasonable doubt: (1) defendant previously had been convicted
of a felony; (2) defendant possessed a firearm; and (3) it traveled in, or affected,
interstate commerce. United States v. Guidry, 406 F.3d 314, 318 (5th Cir.
2005). Again, Milton contests only whether there was sufficient evidence that
he knowingly possessed the firearm.
      Possession may be actual or constructive, and may be proved by
circumstantial evidence. United States v. Meza, 701 F.3d 411, 419 (5th Cir.
2012). Constructive possession may be found if defendant has ownership,
dominion or control over the item, or dominion or control over the premises in
which the item is found. Id. (citing United States v. De Leon, 170 F.3d 494, 496
(5th Cir. 1999)). Constructive possession may be joint with others. United
States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992). The statute at issue
criminalizes possession, and ownership is not necessary.          See § 922(g)(1);
United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998). The evidence merely
must support a plausible inference that a defendant knew of, and had access
to, the weapon. See Meza, 701 F.3d at 419. Whether “constructive possession




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exists is not a scientific inquiry”, and the court must “employ a common sense,
fact-specific approach”. Id. (internal quotation marks and citation omitted).
      Although the DNA evidence was not conclusive, the weight to be given
this evidence was within the sole province of the jury. See id. at 420. Milton’s
contention that the DNA evidence could have been transferred to the firearm
from other items in the trunk is unavailing because, as noted, the evidence
“need not exclude every reasonable hypothesis of innocence”.        Id. at 418.
Further, Milton’s reliance on the equipoise rule is misplaced:        our court
explicitly abandoned use of the rule. See Vargas-Ocampo, 747 F.3d at 301–02.
A rational juror could have reasonably inferred from the evidence linking
Milton to the vehicle and the firearm that he had constructive possession of
the firearm. See id. at 301. Accordingly, viewing the evidence in the light most
favorable to the prosecution, a rational juror “could have found the essential
elements of the crime beyond a reasonable doubt”. Meza, 701 F.3d at 418.
      AFFIRMED.




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