                                      _____________

                                       No. 96-1850
                                      _____________

United States of America,                    *
                                             *
        Plaintiff - Appellee,                *    Appeal from the United States
                                             *    District Court for the
        v.                                   *    District of South Dakota.
                                             *
Mike Smith,                                  *
                                             *
        Defendant - Appellant.               *


                                      _____________

                         Submitted:       July 11, 1996

                                 Filed: January 3, 1997
                                    _____________

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.

        A jury found Mike Smith guilty of possession of a firearm by a felon,
in   violation     of   18   U.S.C.   §   922(g)(1)   (1994).   Smith   appeals   his
conviction, challenging the district court's1 response to a jury question
and its denial of Smith's motions for a judgment of acquittal.           We affirm.


                                             I.


        Mike Smith is a felon and was on supervised release on August 12,
1995.       That morning, he drove his father's pickup to the town of Parmelee,
South Dakota.      Smith flagged down Officer Hermus Lone Dog, a police officer
for the Rosebud Sioux Tribe.          Officer Lone




        1
      The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
Dog stopped and spoke to Smith and noticed signs of intoxication.       Smith
told the officer he had been drinking.


       Officer Lone Dog placed Smith under arrest for driving under the
influence of alcohol.   When Smith resisted Officer Lone Dog's attempt to
handcuff him, the officer summoned help from Officer Kevin Swalley.       The
two officers handcuffed Smith and placed him in the back seat of the patrol
car.    While being handcuffed, Smith said, "I'm going. I'm going back."
(Tr. at 25.)


       Officer Swalley proceeded to move Smith's pickup off the road where
it was blocking traffic, so that it could be inventoried and towed.     As he
moved the seat forward to accommodate his stature, Officer Swalley observed
the butt end of a 30-30 caliber rifle lying behind the seat and a red box
in the pickup door that contained 30-30 caliber rifle bullets.         He told
Officer Lone Dog about his observations, and Officer Lone Dog then took the
weapon and ammunition from the pickup back to his patrol car.    Smith became
quite agitated when he saw the firearm and the ammunition, and began
knocking his head against the cage in the patrol car and kicking the rear
window.   He said, "I know I'm going back, I'm on [f]ederal probation."
(Id. at 33-34.)


       Smith was charged with possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1).        The case proceeded to trial, and a
jury returned a guilty verdict.      Smith twice moved for a judgment of
acquittal, but the district court denied both motions.      Smith appeals.


                                     II.


       Under 18 U.S.C. § 922(g)(1), a person "who has been convicted in any
court of a crime punishable by imprisonment for a term exceeding one year"
may not possess any firearm or ammunition.     Smith argues that the district
court erred in denying his motions




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for acquittal.     He claims there was insufficient evidence to establish
beyond a reasonable doubt that he knowingly possessed the rifle.


     Our standard of review on this issue is quite narrow.          United States
v. Cunningham, 83 F.3d 218, 222 (8th Cir. 1996).         "We review the denial of
a motion for judgment of acquittal based upon sufficiency of the evidence
by viewing the evidence in the light most favorable to the verdict."
United States v. Johnson, 56 F.3d 947, 956 (8th Cir. 1995).              We give the
government   the   benefit   of   all   the   reasonable   inferences    that   could
logically be drawn from the evidence.         Cunningham, 83 F.3d at 222.    We must
uphold the verdict if the evidence so viewed is such that "there is an
interpretation of the evidence that would allow a reasonable-minded jury
to find the defendant guilty beyond a reasonable doubt."                Id. (quoting
United States v. White, 81 F.3d 80, 82 (8th Cir. 1996)). "The verdict may
be based in whole or in part on circumstantial evidence."           United States
v. Alvarado-Sandoval, 997 F.2d 491, 493 (8th Cir. 1993).


     The government put on several witnesses to prove its case.                   The
government first called Smith's sister, Mary Olguin, as a hostile witness.
Olguin testified that she owned the 30-30 rifle and that it had been
hanging on a wall in her parents' house for several years.        Olguin said she
had placed it in the pickup during the first week of August without her
father's knowledge.    She said the rifle did not work, and she wanted her
father to take it to Valentine, Nebraska, to be fixed.


     Smith's father also testified.       He stated that the only people living
in his home on August 12, 1995, besides himself, were his wife, his
daughter Kathleen who was disabled, and Smith.           Smith's father said that
he had not placed the rifle in the pickup and that his daughter Kathleen
was incapable of doing so.    He told the jury he does not own any guns and
had not bought any bullets in several




                                          3
years.    He also testified that he does not allow anyone to drive his pickup
unless he is present, but Smith has a key that fits the ignition of the
pickup.


     Finally, Smith's mother testified.            She stated she had last seen the
rifle hanging on the wall of her home on August 10, 1995. She testified,
as her husband had, that her daughter Kathleen would be incapable of
placing the rifle in the pickup.             Mrs. Smith also testified that she had
not placed the rifle in the pickup, has never bought any bullets, and had
never seen the bullets the officers found in the pickup.               She told the jury
that she and her husband normally took their car, rather than the pickup,
to shop in Valentine.       They rarely used the pickup.


     The jury could reasonably have inferred that Olguin fabricated her
story.    In contrast to her claim that she had put the rifle in the pickup
during the first week of August, her mother testified to seeing the rifle
hanging on the wall as late as August 10.                Olguin's alleged reason for
putting the rifle in the pickup is also suspect, because her parents
normally take their car, instead of their pickup, to shop in Valentine.
The jury reasonably could have concluded that Olguin was attempting to
cover for her brother and therefore could have disregarded Olguin's
testimony     as   incredible.     We   would      not   disturb    such   a   credibility
determination.        See United States v. Martinez, 958 F.2d 217, 218 (8th Cir.
1992) ("It is the sole province of the jury to weigh the credibility of a
witness.").


     Considering the remaining evidence, the jury could have believed
Smith's parents' testimony that neither they nor their daughter Kathleen
had moved the rifle from the wall of their home to their pickup.                  The jury
could then have found that Smith was the only person who had access both
to his father's pickup and to the rifle, and it was he who had placed the
rifle and the bullets in the pickup.              Having reached this finding, it is
indeed    a   small    logical   step   to    conclude    that     Smith   knowingly   had
constructive




                                              4
possession of the rifle at the time he was arrested.                    Smith's agitation
when he saw that the officers had found the rifle and the ammunition and
his statements about having "to go back" support this conclusion.


      Viewing the evidence in this light, we find that it was sufficient
to support the verdict.         The district court did not err in denying Smith's
motions for a judgment of acquittal.


      Smith's second argument on appeal concerns the district court's
response    to   a   question     the    jury      posed   regarding    the    elements     of
section 922(g)(1).     During jury deliberations, the jury sent a note to the
district court, asking:         "Does constructive possession mean you have to
know that an item is in your presence in order to possess that item[?]".
(Suppl. Tr. at 2.)     The district court prepared the following answer:                   "In
response to the question from the jury, although you are to consider all
of   the   instructions,    you    might       consider    Instruction       number   16   and
Instruction number 15A."         (Id.)     The court then solicited comments from
both parties regarding the proposed response.


      Defense counsel objected and submitted the following response:                   "Yes,
a person must know that he has an item in his presence to make it
constructive possession."       (Id. at 3.)          The district court rejected defense
counsel's    proposal,     fearing      that    it    might   cloud    the   definition    of
constructive possession already submitted to the jury in Instruction 16.
The court was concerned that defense counsel's response would force the
jury to wrestle with two different definitions, one of which is more
restrictive than the other.             The court therefore decided to answer the
jury's question with the court's originally proposed statement, referring
the jury to the instructions as a whole and specifically to instructions
Number 16 and Number 15A.         Smith contends this decision was an abuse of
discretion.




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     When   responding   to    a   jury's       explicit   request   for   supplemental
instructions, the trial judge must take great care "to insure that any
supplemental    instructions       are   accurate,     clear,    neutral,    and   non-
prejudicial."    United States v. Skarda, 845 F.2d 1508, 1512 (8th Cir.
1988).   "The response to a jury request for supplemental instructions is
a matter within the sound discretion of the district court."               Id. (quoting
United States v. White, 794 F.2d 367, 370 (8th Cir. 1986)).


     The district court in this case did not abuse its discretion.                  The
court referred the jury members to the instructions that answered their
question, including Instructions Number 16 and Number 15A.                  Instruction
Number 16, which was patterned after Eighth Circuit Model Jury Instruction
No. 8.02, accurately stated the legal definitions of the various types of




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possession, including constructive possession.2   See United States v. Ali,
63 F.3d 710,




     2
      Instruction Number 16 stated:

          The law recognizes several kinds of possession.           A
     person may have actual possession or constructive
     possession. A person may have sole or joint
     possession.

          A person who knowingly has direct physical control
     over a thing, at a given time, is then in actual
     possession of it.

          A person who, although not in actual possession,
     has both the power and the intention at a given time to
     exercise dominion or control over a thing, either
     directly or through another person or persons, is then
     in constructive possession of it.

          If one person alone has actual or constructive
     possession of a thing, possession is sole. If two or
     more persons share actual or constructive possession of
     a thing, possession is joint.

          Whenever the word "possession" has been used in
     these instructions it includes actual as well as
     constructive possession and also sole as well as joint
     possession.

(Appellee's Adden. at 2.)

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716 (8th Cir. 1995) (noting our frequent approval of this instruction).
This instruction explicitly requires a determination that the defendant
intended to exercise dominion over something in order to find that he had
constructive possession of it.     Reference to this instruction should have
answered the jury's question regarding the required mental state for
constructive possession.       In addition, Instruction Number 15A further
clarified any ambiguity the jury might have had regarding the element of
"knowingly."3     The   court's   reference      to   these   two   instructions   was
responsive to the jury's question and gave the jury an accurate statement
of the law.   We see no abuse of discretion in the district court's refusal
to   risk   confusion   with   another,       slightly   different   instruction.



                                      III.


      Accordingly, we affirm the judgment of the district court.




      3
      Instruction Number 15A was incorporated into the jury
instructions at Smith's request. It was taken from the Ninth
Circuit Pattern Jury Instructions, see 9th Cir. Crim. Jury Instr.
5.06 (1995), and is the instruction recommended by the Committee
on Model Criminal Jury Instructions for the Eighth Circuit for
situations when an instruction on the "knowingly" issue is
necessary, see Manual of the Model Criminal Jury Instructions for
the District Courts of the Eighth Circuit § 703 commentary at 432
(1996). Instruction Number 15A stated:

           An act is done knowingly if the defendant is aware
      of the act and does not act through ignorance, mistake,
      or accident. The government is not required to prove
      that the defendant knew that his acts or omissions were
      unlawful. You may consider evidence of the defendant's
      words, acts, or omissions, along with all the other
      evidence, in deciding whether the defendant acted
      knowingly.

(Appellee's Adden. at 1.)


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A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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