[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15, 2009
No. 08-12341 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00178-CR-W-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER KENDELL RUSH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(June 15, 2009)
Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Christopher Kendell Rush appeals his convictions for possession of a
firearm by a convicted felon and possession of ammunition by a convicted felon,
both in violation of 18 U.S.C. § 922(g)(1). Rush asserts the trial court erred in
denying his motion for judgment of acquittal because the evidence presented at
trial was insufficient to allow a reasonable juror to find beyond a reasonable doubt
he possessed the firearm and ammunition found in the vehicle in which he was
riding. We disagree.
The following evidence, which was presented at trial, was sufficient to
support the jury’s finding that Rush constructively possessed the firearm and
ammunition: (1) the firearm was found in the glove compartment, in close
proximity to the passenger seat in which Rush was sitting, and the ammunition was
found underneath the seat; (2) Rush appeared extremely nervous and kept reaching
underneath the passenger seat; (3) Rush provided officers with a false name and
then fled; and (4) once Rush was apprehended, officers found on his person five
spent shell casings of the same caliber as the firearm and ammunition in the
vehicle. Viewing this evidence together and in the light most favorable to the
Government, there was a sufficient basis for a reasonable jury to find Rush guilty
of constructively possessing the firearm and ammunition.
Rush also asserts Officer Warren’s testimony was not credible because,
although he testified that live rounds were found in Rush’s pocket, the report
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Warren wrote the night of the incident does not mention the recovery of any live
rounds from Rush’s person. While it is true Warren’s report contradicted his
testimony in this way, Warren explained the inconsistency, stating it had been a
while since the incident occurred and conceding it was possible that no live rounds
were found in Rush’s pockets. As explained above, Rush’s conviction did not rest
solely on this evidence. Furthermore, credibility determinations are to be made by
the jury and the fact Warren’s testimony contained one inconsistency, for which he
offered an explanation, does not necessarily discredit the remainder of his
testimony, most of which was corroborated by Officer Kovacic’s testimony. See
United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006) (holding “[t]he
jury gets to make any credibility choices, and [this Court] will assume that they
made them all in the way that supports the verdict”).
In conclusion, the evidence presented at trial, when viewed in the light most
favorable to the Government, was sufficient to allow a reasonable jury to find Rush
constructively possessed the firearm and ammunition. Accordingly, we affirm
Rush’s convictions.
AFFIRMED.
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