                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 16, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 UNITED STATES OF AM ERICA

               Plaintiff-Appellee,                      No. 05-6190
          v.                                         (W . D. Oklahoma)
 TOM M Y R UIZ,                                   (D.C. No. 04-CR -208-F)

               Defendant-Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **


      Tommy Ruiz was convicted after a jury trial of one count of possessing a

firearm after having been convicted of a crime punishable by imprisonment for a

term exceeding one year, a violation of 18 U.S.C. § 922(g)(1). The district court




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.


      **
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34( A )(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
sentenced him to 92 months’ imprisonment, followed by three years’ supervised

release.

      In this appeal, M r. Ruiz argues that the evidence was insufficient to support

the § 922(g)(1) charge. W e disagree and therefore affirm his conviction.



                                 I. BACKGROUND

      On August 2, 2004, Sergeant Jim Lilly, an investigator with the Oklahoma

County Sheriff’s office, attempted to serve an arrest warrant on a fugitive named

Tiffany Forester. Sergeant Lilly had received information indicating that M s.

Forester might be found at a house in Oklahoma City where M r. Ruiz was living.

Sergeant Lilly and several other officers arrived at the house around 7:30 or 8:00

p.m. Bonnie Howard, who was M r. Ruiz’s former sister-in-law, answered the

door. She told Sergeant Lilly that no one else was there, and she gave him

permission to look for the fugitive.

           W hile conducting a protective sweep, Reserve Deputy Jason Ruegge

found a locked room in the northeast part of the house. Deputy Ruegge heard

voices inside the room, but he could not determine whether they came from a

television set or from other people.

      According to Sergeant Lilly, M s. Howard told him that she did not have a

key to the locked room and did not have access to it. She added that M r. Ruiz

was the only person with access to the room.

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      W hile the officers were continuing the protective sweep, M r. Ruiz arrived

at the house. He gave Sergeant Lilly a key to the locked room, and Sergeant Lilly

opened the door. Inside a cabinet above a closet, Sergeant Lilly found the firearm

that is the subject of this prosecution— a Glock pistol with .40 caliber ammunition

loaded in the magazine. According to Sergeant Lilly, M r. Ruiz told him that a

friend had left the pistol there. Sergeant Lilly responded that he did not intend to

arrest M r. Ruiz, but he did seize the pistol. Officers obtained a latent fingerprint

from the pistol, but later discovered that it did not belong to M r. Ruiz.

      Several other witnesses testified at trial about M r. Ruiz’s connection to the

pistol. Jeff Reed, a detective with the Oklahoma City Police Department, stated

that in the course of investigating a drive-by shooting on the following day

(August 3, 2004), he interviewed M r. Ruiz. M r. Ruiz told him that officers had

seized a Glock .40 caliber pistol and that he had obtained it from an ex-gun dealer

in Norman, Oklahoma. Detective Reed interviewed M r. Ruiz again on September

9, 2004. This time, M r. Ruiz stated that a friend had obtained the pistol and that

the bedroom where it had been found belonged to his father, not him.

      Karen Hess, a special agent with the Bureau of Alcohol, Tobacco, and

Firearms testified that she interviewed M r. Ruiz on October 24, 2004, after he had

been arrested for this firearm offense. She stated that M r. Ruiz told her that it

was M s. How ard who had obtained the pistol but that he did not know that M s.

Howard had it. He added that the bedroom where the pistol had been found


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belonged to his father. However, M r. Ruiz said, his father would give him the

key when his father went to work.

      At trial, M s. Howard testified in M r. Ruiz’s defense. She told the jury that

the room in which the pistol was found belonged to M r. Ruiz’s father and that

she, M r. Ruiz, and M r. Ruiz’s father all had keys to it. She explained that she had

obtained the pistol from Andre W illiams, the father of her baby. She had put it in

the cabinet but did not tell M r. Ruiz that she had done so. She only told M r. Ruiz

about the pistol as the officers were searching the room.



                                 II. D ISC USSIO N

      M r. Ruiz now argues that the evidence is insufficient to support his

conviction under 18 U.S.C. § 922(g)(1). He maintains that the evidence raises

only a suspicion of guilt.

      W e engage in de novo review of the sufficiency of the evidence supporting

a conviction. United States v. Bowen, 437 F.3d 1009, 1014 (10th Cir. 2006).

W e consider whether, “taking the evidence–both direct and

circumstantial–together with reasonable inferences to be drawn therefrom–in the

light most favorable to the government, a reasonable jury could find [M r. Ruiz]

guilty beyond a reasonable doubt.” United States v. Allen, 235 F.3d 482, 492

(10th Cir. 2000) (internal quotations omitted). “W e do not question the jury’s

credibility determinations or its conclusions about the weight of the evidence.”


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Id. “The evidence necessary to support a verdict need not conclusively exclude

every other reasonable hypothesis and need not negate all possibilities except

guilt. Instead, the evidence only has to reasonably support the jury’s finding of

guilt beyond a reasonable doubt.” United States v. Pulido-Jacobo, 377 F.3d 1124,

1129 (10th Cir. 2004) (internal quotation marks and citation omitted).

      To prove a violation of § 922(g)(1), the government must establish the

following elements beyond a reasonable doubt: (1) that the defendant was

previously convicted of a felony; (2) that the defendant thereafter knowingly

possessed a firearm or ammunition; and (3) that the possession was in or affecting

interstate commerce. United States. v. Colonna, 360 F.3d 1169, 1178 (10th Cir.

2004). Here, M r. Ruiz’s has disputed only the second element— knowing

possession.

      “Possession” under § 922(g)(1) may be actual or constructive. See United

States v. M ills, 29 F.3d 545, 549 (10th Cir. 1994). “[C]onstructive possession

exists where the defendant has the power to exercise control or dominion over the

item.” United States v. Lopez, 307 F.3d 1207, 1212 (10th Cir. 2004). In most

cases, “[d]ominion, control, and knowledge . . . may be inferred when a defendant

has exclusive possession of the premises” where the object is found. M ills, 29

F.3d at 549.




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      In cases of joint occupancy, the government “must present evidence to

show some connection or nexus between the defendant and the firearm or other

contraband.” Id. “W hile caution must be taken that the conviction not be

obtained by piling inference on inference, an inference of constructive possession

is reasonable if the conclusion flows from logical and probabilistic reasoning.”

United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999) (internal

quotation marks omitted). To sustain a conviction for constructive possession,

the government must present “evidence supporting at least a plausible inference

that the defendant had knowledge of and access to the weapon.” United States v.

Hien Van Tieu, 279 F.3d 917, 922 (10th Cir. 2002) (internal quotation marks

omitted); see also M ills, 29 F.3d at 549-50.

      Applying these standards, we conclude that the evidence is sufficient to

permit the jury to infer that M r. Ruiz had knowledge and access to the Glock

pistol and therefore constructively possessed it. The jury heard evidence that M r.

Ruiz had admitted that he had obtained the pistol from a N orman gun dealer.

Although the jury heard contrary statements–both from M s. Howard and from M r.

Ruiz himself–we may not second-guess its decision about the weight of this

evidence. M oreover, even if it did not believe that M r. Ruiz owned the pistol, it

could still reasonably conclude, from testimony about his having a key to the

room and knowing where the pistol was located, that he had “knowledge of and

access to the weapon.” Hien Van Tieu, 279 F.3d at 922.


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                      III. CONCLUSION

Accordingly, we AFFIRM M r. Ruiz’s conviction.



                                     Entered for the Court,



                                     Robert H. Henry
                                     United States Circuit Judge




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