            Case: 13-11488    Date Filed: 12/17/2013   Page: 1 of 4


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 13-11488
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 5:12-cr-00005-WTM-JEG-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

KENNETH BRYAN RISER,

                                                           Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                       ________________________

                             (December 17, 2013)

Before PRYOR, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

     Kenneth Bryan Riser appeals his conviction for possessing a firearm as a
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convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). At trial, the

government’s cooperating witness testified that Riser offered him $18,000 to get

Riser a gun. The witness contacted the police and agreed to set up a fake sale of a

9 mm. pistol. The witness recorded his subsequent conversations with Riser and

wore a wire to the deal. The next day, Riser and the witness went to the deal

location to get the gun from an undercover officer, who posed as the seller. The

officer testified that Riser showed up at the deal location; asked about the gun,

which had been placed in a bag inside a boot; settled on a price of $120 for the gun

and eight bullets; wrote a check for that amount; and then took possession of the

gun. An arresting officer testified that when law enforcement agents appeared,

Riser had the gun in the bag but dropped it back into the boot prior to his arrest.

Riser testified in his own defense. He asserted that he went to the deal location to

pay off a debt for his friend, the witness, and that he never saw or touched a gun.

On appeal, Riser argues that there was insufficient evidence to prove that he

actually or constructively possessed a firearm.

      We review challenges to the sufficiency of the evidence de novo, viewing

the evidence in the light most favorable to the government. United States v.

Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). We will not disturb a guilty verdict

unless, based on the evidence in the record, no trier of fact could have found guilt

beyond a reasonable doubt. United States v. Silvestri, 409 F.3d 1311, 1327 (11th


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Cir. 2005).

        To support a conviction for possession of a firearm by a convicted felon, the

government must prove three elements: (1) that the defendant was a convicted

felon, (2) that the defendant was in knowing possession of a firearm, and (3) that

the firearm was in or affecting interstate commerce. United States v. Wright, 392

F.3d 1269, 1273 (11th Cir. 2004). Possession can be actual or constructive. Id.

To establish constructive possession, the government must produce evidence

showing ownership, dominion, or control over the contraband itself or the vehicle

in which it was concealed. Id.

        Credibility questions are for the jury, and we assume that the jury answered

them all in a manner that supports its verdict. Jiminez, 564 F.3d at 1285. A jury is

free to choose among alternative, reasonable interpretations of the evidence. Id.

Testimony will not be considered incredible as a matter of law, unless it is

testimony that on its face cannot be believed, i.e., testimony as to facts that the

witness could not have possibly observed or events that could not have occurred

under the laws of nature. United States v. Thompson, 422 F.3d 1285, 1291 (11th

Cir. 2005). A defendant’s own testimony, if disbelieved by the jury, may be

considered as substantive evidence of the defendant’s guilt. Jiminez, 564 F.3d at

1285.

        There was sufficient evidence for the jury to reasonably convict Riser of


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possessing a firearm as a convicted felon. Riser only challenges the sufficiency of

the evidence as to the second element of the offense: his knowing possession of a

firearm.

      First, the evidence shows that Riser actually possessed a gun. Riser offered

a police contact $18,000 to get him a gun, went with the contact to the deal

location, wrote a check for the gun, and took possession of it. Although Riser

testified to an entirely different version of the meeting and claimed that he never

saw or touched a gun, the jury was entitled to believe the testimony of the

government’s witnesses, which was corroborated by audio recordings, over Riser’s

testimony. Jiminez, 564 F.3d at 1285. Contrary to Riser’s argument, none of this

testimony is incredible as a matter of law. See Thompson, 422 F.3d at 1291.

Further, Riser’s own testimony supports his conviction. Because the jury

necessarily disbelieved his testimony, it was permitted to consider the testimony as

substantive evidence of his guilt. See id. Alternatively, the jury could have

reasonably concluded that Riser constructively possessed the gun because he

acquired ownership of it when he wrote a check for it. Wright, 392 F.3d at 1273.

      AFFRIMED.




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