Appeal from the United States District Court for the Eastern District of Missouri.
The opinion of the court was delivered by: Shepherd, Circuit Judge.
Submitted: April 16, 2012
Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
Antoine Porter was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Porter was convicted after a jury trial and was sentenced to 33 months imprisonment. Porter appeals his conviction arguing the district court erred in denying his motion for judgment of acquittal based on *fn1 insufficient evidence and erred in overruling Porter's objection to statements made by the Government's counsel during closing arguments. We affirm.
On July 21, 2010, Officers Joshua Becherer and Jason Chambers conducted surveillance of a Phillips 66 gas station on Broadway Street in St. Louis, Missouri. The officers observed a red Dodge Charger pull into the gas station parking lot and observed the driver, who turned out to be Porter, exit the vehicle clutching the pocket of his shorts with his hand. Officer Becherer was trained in how to identify an armed gunman and believed the way the driver was clutching his pocket indicated he was carrying a weapon. The officers observed the driver remove an object from his pocket, place it underneath his vehicle behind his tire, and go into the gas station. Through Officer Becherer's training, he had learned that it was common for an armed gunman to remove his weapon from his person to conceal it before entering a location where he would be for a period of time.
When Porter exited the gas station, the officers identified themselves as policemen and asked if Porter would speak with them. Eventually, Officer Becherer searched the area under Porter's vehicle where he had observed Porter place an object and found a firearm. Porter informed the officers that he was "the muscle" of the gas station, that the gas station was a violent area, and that those were the reasons why he carried a weapon.
Porter was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Porter pled not guilty to the charge and went to trial. He was convicted by a jury and now appeals.
At the close of the Government's case, Porter made a motion for acquittal based on insufficient evidence under Federal Rule of Criminal Procedure 29. The court denied the motion, and Porter now appeals that ruling. We "'review de novo a district court's denial of a motion for judgment of acquittal.'" United States v. Augustine, 663 F.3d 367, 373 (8th Cir. 2011) (citation omitted). A judgment of acquittal must be entered for "'any offense for which the evidence is insufficient to sustain a conviction.'" United States v. Vega, 676 F.3d 708, 721 (8th Cir. 2012) (quoting Fed. R. Crim. P. 29(a)), petition for cert. filed, (U.S. June 21, 2012) (No. 11-11081). "'In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict.'" Augustine, 663 F.3d at 373 (quoting United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000)).
Under 18 U.S.C. § 922(g)(1), "the government must prove the defendant (1) had previously been convicted of a crime punishable by a term of imprisonment exceeding one year, (2) knowingly possessed a firearm, and (3) the firearm was in or [a]ffecting interstate commerce." United States v. Varner, 678 F.3d 653, 656 (8th Cir. 2012). Porter challenges the sufficiency of the evidence as to the second element: that he knowingly possessed the firearm. Porter's principal argument is that the firearm had no identifiable fingerprints or DNA on it when it was recovered. He also argues that Officer Becherer could not "visually verify" that the item he saw Porter place under his car was a firearm. Finally, Porter argues that the trial testimony contradicted the statement Porter allegedly made to the officers that he was the "muscle" of the gas station because Porter's uncle testified that Porter did not provide security for the station.
As to Porter's attack on the sufficiency of the evidence regarding the lack of fingerprints or DNA found on the firearm, "forensic evidence is not necessary" for a firearms conviction. Varner, 678 F.3d at 657. Officer David Menendez, a firearms examiner, testified he only discovers fingerprints on firearms in three to five percent of cases; thus, he was not surprised that he did not discover fingerprints on the seized weapon.
Although forensic evidence was absent, there was ample evidence to support the jury's conviction. Officer Becherer testified that the area where Porter placed the object was well illuminated due to numerous lights surrounding the parking lot. Officer Becherer also testified that he observed Porter place what he believed was a weapon under Porter's vehicle; that no one other than Porter had access to the area under the vehicle; that Officer Becherer did in fact seize a firearm from under the vehicle; and that Porter confessed his reasons for possessing the firearm. To the extent that Porter quibbles with Officer Becherer's recitation of the events including the Officer's description of the visibility conditions at the station and of Porter's admission that he was the muscle of the station, such "arguments go ...