US v. Johnson

Filing 920060731

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-5124

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DEREK JOHNSON, JR., Defendant - Appellant.

Appeal from the United States District District of North Carolina, at Durham. District Judge. (CR-05-47)

Court for the Middle James A. Beaty, Jr.,

Submitted:

June 30, 2006

Decided:

July 31, 2006

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Robert A. J. Lang, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM: Derek Johnson, Jr., appeals his conviction, after a jury trial, of one count of possession of a firearm after having been convicted of a crime punishable by more than one year of On

imprisonment, in violation of 18 U.S.C. § 922(g) (2000).

appeal, Johnson argues that the district court erred in denying his motion for judgment of acquittal because the evidence was

insufficient to sustain the jury's verdict, and that the district court erred in giving an instruction on constructive possession. We affirm. Johnson first argues that the evidence was insufficient to support the jury's verdict. A defendant challenging the

sufficiency of the evidence faces a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). "[A]n appellate court's reversal of a conviction on grounds of insufficient

evidence should be confined to cases where the prosecution's failure is clear." Cir. 1984). United States v. Jones, 735 F.2d 785, 791 (4th

A jury's verdict must be upheld on appeal if there is Glasser v.

substantial evidence in the record to support it. United States, 315 U.S. 60, 80 (1942).

In determining whether the

evidence in the record is substantial, we view the evidence in the light most favorable to the government, and inquire whether there is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of the defendant's

- 2 -

guilt beyond a reasonable doubt. 849, 862 (4th Cir. 1996) (en

United States v. Burgos, 94 F.3d banc). We do not review the

credibility of the witnesses and assume that the jury resolved all contradictions in the testimony in favor of the government. United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). The elements of a violation of § 922(g)(1) are that: "(1) the defendant previously had been convicted of a crime

punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed . . . the firearm; and (3) the possession was in or affecting commerce, because the firearm had traveled in interstate or foreign commerce." United States v. Johnson

Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).

stipulated to a prior felony conviction and to the interstate or foreign commerce element, disputing only the knowing possession element. Possession may be actual or constructive. United States A person has

v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992).

constructive possession of an item if he knows of its presence and exercises or has the power to exercise dominion and control over it. United States v. Scott, 424 F.3d 431, 435 (4th Cir.), cert. Possession may be established by

denied, 126 S. Ct. 779 (2005). circumstantial evidence. 1053 (4th Cir. 1993). conclude that the

United States v. Nelson, 6 F.3d 1049, Our review of the record leads us to presented to the jury, although

evidence

- 3 -

circumstantial, was sufficient to prove that Johnson possessed the firearm in question. Johnson also argues that the district court erred in instructing the jury on constructive possession. In general, the

decision whether to give a jury instruction, and the content of that instruction, are reviewed for an abuse of discretion. States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). United

Johnson does

not contest the content of the instruction, but asserts that it was improper because there was no evidence to support it. We conclude

that this argument is contradicted by evidence that sufficiently connected Johnson to the firearm and supported the court's

instruction on constructive possession. We therefore affirm Johnson's conviction and sentence. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

- 4 -