                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-3569
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the District
David John Martin, also known as        * of Minnesota.
David Jon Martin, also known as         *
David Munckin, also known as Joseph *
Martin, also known as Little Dave,      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 10, 1999

                                 Filed: June 10, 1999
                                  ___________

Before BEAM and HEANEY, Circuit Judges, and GOLDBERG,1 Judge of the United
      States Court of International Trade.
                                    ___________

BEAM, Circuit Judge.

      David John Martin was convicted of being a felon in possession of a firearm.
See 18 U.S.C. § 922(g). Although Martin never actually possessed the firearm, he was


      1
       The Honorable Richard W. Goldberg, Judge for the United States Court of
International Trade, sitting by designation.
convicted on a theory of "constructive possession" and sentenced to 120 months in
prison. We find the evidence insufficient, and therefore reverse and vacate.

I.    BACKGROUND

       In reviewing the sufficiency of the evidence, we look at the evidence in the light
most favorable to the verdict, with all reasonable inferences drawn in favor of the
government. See United States v. Davis, 154 F.3d 772, 786 (8th Cir. 1998), cert.
denied, 119 S. Ct. 1072, 1078, 1090 (1999). On December 6, 1997, G.M., a juvenile,
his mother, and another man and woman arrived at a pawn shop. At the pawn shop,
G.M.'s mother retrieved a rifle and purchased ammunition. The shop owner asked the
group if they were going rabbit hunting. In response, the man with G.M. said they were
going deer hunting and planned to shoot the deer in the neck. He made this statement
while pointing his index finger at his neck. The man who made this statement was
identified as Martin.

       Later that same day, G.M. and Martin visited someone else's home. Donald
Hoagland was also present at that location. Hoagland had previously been involved in
an altercation in which he beat and kicked G.M.'s mother, causing injuries requiring
two surgeries. G.M., Martin, Hoagland, and others sat around and talked for about five
minutes. Just before leaving, Martin asked G.M. "Are you going to do that then?" The
two then left only to return shortly thereafter.

       While Martin and G.M. were still outside, Martin said "grab the gun." When
they returned to the house, G.M. had the rifle retrieved earlier at the pawn shop and
asked Hoagland if he was ready to die. G.M. reminded Hoagland of what he had done
to his mother. Martin then told G.M. two or three times to "hurry up." G.M. shot
Hoagland numerous times. G.M. and Martin fled the scene, but turned themselves in
the next day. Martin agreed to help the police locate the rifle that was discarded by
G.M.

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       Martin was indicted on two counts; aiding and abetting attempted murder, and
being a felon in possession of a firearm. After the evidence was presented, the aiding
and abetting count was dismissed by the district court. The jury convicted Martin on
the firearm charge.

       Martin argues on appeal that the prosecution's case relied on inadmissible
hearsay. Furthermore, he argues that even with the inadmissible hearsay, the evidence
is insufficient to support the jury verdict.

II.   DISCUSSION

      We review evidentiary decisions by the district court for abuse of discretion, see
United States v. Roach, 164 F.3d 403, 408 (8th Cir. 1998), and test the sufficiency of
the evidence to determine if the facts support the verdict. See Davis, 154 F.3d at 786.
We uphold the verdict only if "it is supported by substantial evidence." United States
v. Plenty Arrows, 946 F.2d 62, 64 (8th Cir. 1991).

       The contested evidence in this case involves the testimony of a psychologist, one
R. Owen Nelson, Ph.D. Dr. Nelson was asked by the public defender to interview
G.M. for a psychological assessment to assist in the "disposition" or sentence in G.M.'s
juvenile proceedings. During the interview, G.M. told Dr. Nelson, among other things,
that Martin was the one who had accompanied him and his mother to the pawn shop.
This was the only evidence placing Martin at the pawn shop. Several more statements
by G.M. concerning the events of December 6, were also admitted through the
testimony of Dr. Nelson.

      The United States argues that this hearsay falls under an exception for statements
made for medical diagnosis or treatment, see Fed. R. Evid. 803(4), or as statements
against interest. See Fed. R. Evid. 804(b)(3). Martin argues that admission of this
hearsay does not meet an exception and violates his rights under the Confrontation

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Clause. We have very serious reservations about the admissibility of this evidence, but
need not answer this question, since even if admitted, the evidence is insufficient to
support the verdict.

      The only element of the crime in question is whether Martin knowingly
possessed a firearm. As indicated, there is no evidence of actual possession by Martin.
The United States relies on "constructive or joint possession." United States v.
Boykin, 986 F.2d 270, 274 (8th Cir. 1993). To this end, the jury was instructed that,

      [A] person has possession of something if the person knows of its
      presence and has physical control of it or knows of its presence and has
      the power and intention to control it. More than one person can be in
      possession of something if each knows of its presence and each has the
      power and intention to control it.

Tr. at 47 (June 4, 1998).

       The Eighth Circuit model jury instruction similarly provides that, "[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." Eighth Circuit Model Jury
Instructions, Criminal 8.02 (West 1996). The United States suggests that the "most
powerful evidence" of constructive possession is the fact that Martin was with G.M.
through the entire episode. Far from powerful for this purpose, this evidence, at best,
indicates that Martin was in a position to influence G.M. It is, however, insufficient
to prove power and intention to exercise dominion and control over the rifle.

      The United States also relies on the statements "are you going to do that then?,"
"hurry-up," and "grab the gun" to suggest that Martin was directing G.M. We are not
persuaded. The evidence shows that G.M. had a personal vendetta against Hoagland


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and not that he was some puppet acting at the behest of Martin. The final piece of
evidence the United States relies on to support the verdict is the fact that Martin agreed
to help the police locate the rifle which G.M. had discarded. Knowledge of the
possible location of a firearm here is not a showing of power and intention to exercise
dominion and control over an object.

      The district court itself found the evidence of possession to be "a close question."
United States v. Martin, No. Cr 98-15, memo. op. at 1 (D. Minn. June 29, 1998).
Upon reviewing the record, we conclude that the evidence is insufficient to support the
verdict.

III.   CONCLUSION

      For the foregoing reasons, we reverse and remand this matter to the district court
with directions to vacate the conviction and dismiss the case.

       A true copy.

             Attest:

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




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