IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10176
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD CARLDERON SMITH, JR.,
also known as Richard Calderon Smith,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-135-1
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October 26, 2001
Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Richard Carlderon Smith, Jr., appeals from the jury conviction
of being a felon in possession of a firearm. Smith argues that the
district court erred in denying his motion for a judgment of
acquittal pursuant to Fed. R. Crim. P. 29(c) because the evidence
was insufficient to prove beyond a reasonable doubt that he
possessed the firearm, either directly or constructively.
This court reviews the denial of a motion for a judgment of
acquittal de novo. United States v. Garcia, 242 F.3d 593, 596 (5th
1
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Cir. 2001). The court “views all evidence, whether circumstantial
or direct, in the light most favorable to the Government with all
reasonable inferences to be made in support of the jury’s verdict.”
United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997). The
court does not review the weight of the evidence or the credibility
of the witnesses. Garcia, 242 F.3d at 596.
Possession of a firearm may be actual or constructive and may
be proven by circumstantial evidence. United States v. De Leon,
170 F.3d 494, 496 (5th Cir. 1999). Where a premises is jointly
occupied, there must be “some evidence supporting at least a
plausible inference that the defendant had knowledge of and access
to the weapon or contraband.” United States v. Mergerson, 4 F.3d
337, 349 (5th Cir. 1993).
The jury could have rationally believed that Larine Mojica’s
statements to the officers that Smith was going for the gun and
that the smock belonged to Smith were more credible than her trial
testimony given the trial testimony that the smock would not fit
her, Smith was in the bedroom and very close to the closet, the
closet door was partially open, the clothes in the closet were
parted at the smock, and the handle of the gun was protruding from
the pocket of the smock. Accordingly, the judgment of the district
court is AFFIRMED.
2