                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1581
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *    Appeal from the United States
      v.                                *    District Court for the Western
                                        *    District of Missouri.
Travis Bryant,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 9, 2003

                                  Filed: November 20, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Travis Bryant was convicted of being a felon in possession of a firearm, see
18 U.S.C. § 922(g)(1), and the district court1 sentenced him to 120 months in prison.
On appeal, Mr. Bryant challenges both his conviction and his sentence. For the
reasons stated below, we affirm.




      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
                                            I.
       Mr. Bryant first contends that the evidence presented was insufficient to
support his conviction because the government failed to show that he possessed a
firearm. We review the sufficiency of the evidence to sustain a conviction de novo.
United States v. Fitz, 317 F.3d 878, 881 (8th Cir. 2003). "On a challenge to the
sufficiency of the evidence supporting a criminal conviction we must view the
evidence 'in the light most favorable to the government, resolving evidentiary
conflicts in favor of the government, and accepting all reasonable inferences drawn
from the evidence that support the jury's verdict.' " United States v. Abfalter, 340
F.3d 646, 654-55 (8th Cir. 2003) (quoting United States v. Erdman, 953 F.2d 387,
389 (8th Cir. 1992), cert. denied, 505 U.S. 1211 (1992)). A jury verdict will be
upheld if it is supported by substantial evidence, United States v. Cruz, 285 F.3d 692,
697 (8th Cir. 2002), which "exists if a reasonable jury could have found the defendant
guilty beyond a reasonable doubt," Fitz, 317 F.3d at 881.

      The government's case relied on the testimony of two men, Gary McElroy and
Johnny Wells, who were shot at following a traffic mishap with Mr. Bryant; both of
them identified Mr. Bryant as the shooter. It is true that two people living in the
neighborhood testified that after the shots were fired they looked outside their home
and saw a different man holding a gun. But where a defendant "points out conflicting
testimony and evidence, ... we are mindful that the jury was charged with the duty of
resolving such conflicts and making credibility determinations." United States v.
Tucker, 169 F.3d 1115, 1117 (8th Cir. 1999). The testimony of Mr. McElroy and
Mr. Wells that Mr. Bryant was the man who shot at them is clearly sufficient to
support a finding beyond a reasonable doubt that Mr. Bryant possessed a firearm.

                                          II.
       Mr. Bryant also maintains that the district court erred by refusing him a new
trial because of a variance between the facts alleged in the indictment and the
evidence offered at trial. "Whether a variance exists, and, if so, whether that variance

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prejudiced [Mr. Bryant], are questions of law that we review de novo." United States
v. Stuckey, 220 F.3d 976, 979 (8th Cir. 2000).

        Comparing the indictment to the evidence presented at trial reveals that there
was no variance. The indictment charged that Mr. Bryant, "having been convicted
of ... crimes ... punishable by imprisonment for a term exceeding one year, ... did
knowingly and intentionally possess in and affecting commerce a firearm ... together
with ammunition." At trial, the government presented evidence that Mr. Bryant was
a felon who had possessed a firearm that had traveled in interstate commerce. The
district court therefore did not err in refusing Mr. Bryant a new trial.

                                           III.
       Mr. Bryant next asserts that the district court erred by allowing the government
to misstate the law during its rebuttal portion of closing arguments. Specifically,
Mr. Bryant contends that the jury was misled as to the elements of the offense by the
following statements of the prosecutor: "It only comes down to one question. Was
Travis there? Was Travis there? .... If you believe that he was there, then it is your
duty, I submit, to convict him." Mr. Bryant maintains that these statements suggested
to the jury that his mere presence at the scene was sufficient to support a guilty
verdict. To prevail, Mr. Bryant must demonstrate that the prosecutor's argument was
improper and prejudicial to his right to a fair trial. United States v. Beeks, 224 F.3d
741, 745 (8th Cir. 2000).


      We agree with the district court that the statements were not improper.
Looking at the entirety of the trial, it is clear that Mr. Bryant was attempting to create
reasonable doubt about whether he was even at the scene. He denied being there in
statements to a law enforcement officer but was placed at the scene by three
witnesses. The prosecutor's statements taken out of context might seem at first
improper, but, in a trial where the defendant denied being at the scene and based his


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defense on misidentification, casting doubt on his story and reminding the jury of
other witnesses' testimony placing him at the scene was quite obviously proper
argument.


       Additionally, the statements had no prejudicial effect on Mr. Bryant's
substantive rights. To determine whether the prosecutor's argument prejudicially
affected Mr. Bryant, we look at the cumulative effect of the argument, the strength
of the properly admitted evidence of the defendant's guilt, and any curative actions
taken by the district court. United States v. Johnson, 968 F.2d 768, 771 (8th Cir.
1992). Taking these considerations into account, we conclude that if there was error
here it was harmless.


        We do not believe that the cumulative effect of the remarks of the prosecutor
was significant. The statements were made during closing arguments, and at no time
during the trial did the prosecutor maintain that Mr. Bryant should be convicted if he
was at the scene but was not the shooter. Because Mr. Bryant denied being there,
placing him at the scene was a necessary condition, though not a sufficient one, for
his conviction, and we note that the evidence at trial tended to show that if Mr. Bryant
was present at the scene, he was indeed the shooter. The district court's instructions
to the jury, moreover, were clear that in order for the government to prevail, there had
to be proof beyond a reasonable doubt that Mr. Bryant possessed a firearm.


       We also think that the government's evidence, especially the identification by
Mr. McElroy and Mr. Wells and the testimony of another witness, Dorothy Hicks,
presented a strong case against Mr. Bryant. Ms. Hicks, a passenger in the shooter's
car on the night of the incident, identified Mr. Bryant as the driver. Mr. McElroy and
Mr. Wells testified that it was the driver, and not a passenger, who fired a gun at
them, and they specifically identified Mr. Bryant as the shooter. When strong


                                          -4-
evidence is presented against a defendant, minor missteps by the prosecutor do not
warrant a new trial. Cf. United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996).


       Furthermore, although the district court took no curative action in response to
Mr. Bryant's attorney's objection to the prosecutor's statements, it offered to do so.
After Mr. Bryant's counsel objected to the remarks, the prosecutor, fearing that the
defense might try to use the statements as an issue on appeal, urged the court to
instruct the jury that Mr. Bryant's mere presence at the scene was not sufficient for
a conviction. The district court agreed to do so if Mr. Bryant's counsel so requested,
but his attorney declined the offer. Mr. Bryant thus cannot now argue that a curative
instruction should have been given. See United States v. Francisco, 410 F.2d 1283,
1289 (8th Cir. 1969).
                                          IV.
       Mr. Bryant argues that the district court erred by giving the jury a supplemental
instruction defining the word "possession." He contends that when combined with
the government's rebuttal closing argument, the supplemental instruction
constructively amended the indictment.


        The district court gave the jury Eighth Circuit Model Jury Instruction No. 8.02,
which defines actual possession as "knowingly" having "direct physical control over
a thing, at a given time" and constructive possession as "the power and intention at
a given time to exercise dominion or control over a thing." The instruction also notes
that either type of possession may be sole or joint. Id. Mr. Bryant's attorney objected
to the instruction contending that it would be overemphasized since it was not given
until after closing arguments and the attorneys had not argued the definitions. The
district court then offered to allow both sides to argue the possession element to the
jury, but Mr. Bryant's attorney refused. As another ground for her objection,
Mr. Bryant's counsel asserted that, coupled with the prosecutor's statements in closing


                                          -5-
arguments that we have discussed, the instruction would "confuse the jury and could
lead to the wrong verdict." She did not offer the district court an alternative
instruction.


       On appeal, Mr. Bryant contends that the combination of the instruction and the
prosecutor's closing rebuttal argument constructively amended the indictment from
alleging sole, actual possession of the firearm to alleging constructive possession of
it. A constructive amendment of the indictment effected by instructions to the jury
is reversible error per se. United States v. Begnaud, 783 F.2d 144, 147 n.4 (8th Cir.
1986). Constructive amendments, however, occur only when "instructions in effect
allow[] the jury to convict the defendant of an offense different from or in addition
to the offenses alleged in the indictment." Id. at 147. Mr. Bryant's indictment stated
simply that he possessed a firearm without any qualification as to whether the
possession was actual or constructive. Our review of the record reveals, moreover,
that the government did not argue or introduce evidence of constructive possession
during the trial. Even if the government had actually introduced evidence attempting
to show that Mr. Bryant constructively possessed a gun, however, that would not have
constituted an amendment of the indictment since the indictment did not specify what
kind of possession Mr. Bryant was charged with. Neither the prosecutor nor the
district court by its supplemental instruction altered the essential elements of the
offense of being a felon in possession of a firearm, which was the charge that
appeared in the indictment.


      Although the indictment was not constructively amended, and the instruction
accurately stated the law, see United States v. Smith, 104 F.3d 145, 148 & n.2 (8th
Cir. 1997); United States v. Ali, 63 F.3d 710, 715-16 (8th Cir. 1995), the jury
nonetheless might have been confused by the instruction's reference to constructive
possession, a matter, as we have said, that the evidence in the case did not raise. We
are convinced, however, that the error, if any, in giving the supplemental instruction

                                         -6-
was harmless because no jury would have concluded that Mr. Bryant was in
constructive possession of a firearm on the basis of the evidence before it.


                                          V.
       Over Mr. Bryant's objection, the district court enhanced his sentence by four
levels for possessing a firearm "in connection with another felony offense." See
U.S.S.G. § 2K2.1(b)(5). The state of Missouri had charged Mr. Bryant with several
qualifying felonies based on the events leading up to this trial, including first-degree
assault for shooting at Mr. McElroy and Mr. Wells. While those state charges were
later dismissed, the relevant sentencing guideline is clear that the phrase " 'felony
offense' ... means any offense (federal, state, or local) punishable by imprisonment for
a term exceeding one year, whether or not a criminal charge was brought, or
conviction obtained." U.S.S.G. § 2K2.1, comment. (n.7); see also United States v.
Fredrickson, 195 F.3d 438, 439 (8th Cir. 1999) (per curiam).


       "We review the district court's application of the sentencing guidelines de novo
and its factual findings for clear error." United States v. Rohwedder, 243 F.3d 423,
425 (8th Cir. 2001). Mr. Bryant argues that there was insufficient evidence that he
was the shooter to warrant the sentence enhancement. We disagree. The evidence
that we have already rehearsed was more than sufficient to support the district court's
finding that Mr. Bryant committed other contemporaneous felonies "in connection
with" illegally possessing a firearm.


                                          VI.
       For the reasons indicated, we affirm the judgment and the sentence of the
district court.
                        ______________________________


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