U.S. v. Ovalle, (10th Cir. 2002)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 01-1476

v.

(D.C. No. 01-CR-26-1-N)

JUAN CARLOS OVALLE,

(D. Colorado)

Defendant - Appellant.

ORDER AND JUDGMENT
name="txt*">(*)

Before KELLY, McKAY, and

MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

Mr. Ovalle appeals his conviction pursuant to 18 U.S.C. § 922(g)(1) for

illegally possessing a firearm after having been previously convicted of a felony.

After a jury trial, the district court sentenced Mr. Ovalle to eighty-four months of

imprisonment to be followed by three years of supervised release. Mr. Ovalle

timely appeals his conviction and sentence to this court.

The sufficiency of evidence to support a criminal conviction is a question

of law that we review de novo. See United States v. Hanzlicek,

187 F.3d 1228,

1239 (10th Cir. 1999). We view the evidence in the light most favorable to the

government and determine whether "any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt." Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); Hanzlicek, 187 F.3d at

1239.

A conviction pursuant to 18 U.S.C. § 922(g)(1) requires the government to

prove three elements: 1) that the defendant was a previously convicted felon; 2)

that the defendant knowingly possessed a firearm; and 3) that the possession was

in or affecting interstate commerce. See United States v. Hishaw, 235 F.3d

565,

571 (10th Cir. 2000). Defendant contests only the second element that he

knowingly possessed a firearm.

At trial, two police officers testified that Mr. Ovalle was riding in the front

passenger seat of a car that held three other men. The car windows were not

tinted. The two police officers followed the car after seeing it make an illegal

turn. There was testimony that the officers activated their lights to pull the car

over, but the driver of the pursued car accelerated. The officers observed the

front seat passenger toss a black handgun and magazine out of the front window

before the driver finally pulled over. Based on this evidence, the jury found that

Mr. Ovalle possessed the firearm in question. Mr. Ovalle claims that no

reasonable jury could have found that he possessed the firearm because it was

nighttime, the police officers had an obstructed view of the car, the front window

was broken, and no physical evidence linked Appellant to the gun or magazine.

Defendant's arguments call into question the police officers' credibility.

This court may "not use this evaluation as a chance to second-guess the jury's

credibility determinations[] nor . . . reassess the jury's conclusions about the

weight of the evidence presented." United States v. Beers, 189 F.3d 1297, 1301

(10th Cir. 1999) (quotation omitted). We have carefully reviewed the briefs, the

district court's disposition, and the record on appeal. The record contains

specific evidence supporting the jury's conclusion that Mr. Ovalle possessed the

firearm in question. Viewing the evidence in the light most favorable to the

government, we hold that a "rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319.

The conviction and sentence are AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge

FOOTNOTES

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*. 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 10th Cir. R. 36.3.

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