United States v. Greene ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5145
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOUGLAS TODD GREENE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00246)
Submitted: August 31, 2007 Decided: September 28, 2007
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Brent Walker, LAW OFFICE OF R. BRENT WALKER, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Corey F. Ellis, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Todd Greene appeals his conviction following a
jury trial for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000). Finding no reversible
error, we affirm.
Greene first contends there was insufficient evidence to
support his conviction. We review the district court’s decision to
deny a motion for judgment of acquittal de novo. United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If the motion was
based on insufficiency of the evidence, the verdict must be
sustained if there is substantial evidence, taking the view most
favorable to the government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is
evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc).
To establish possession of a firearm by a convicted felon
under § 922(g)(1), the government must prove 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. Langley, 62 F.3d
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602, 606 (4th Cir. 1995) (en banc). Greene challenges only the
knowing possession element of the offense on appeal. Possession
may be actual or constructive. United States v. Rusher, 966 F.2d
868, 878 (4th Cir. 1992). A person has 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. denied, 126 S. Ct. 779 (2005).
Possession may be established by circumstantial evidence. United
States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993), overruled on
other grounds by United States v. Bailey, 516 U.S. 137 (1995).
Viewing the evidence in the light most favorable to the
Government, we conclude there was sufficient evidence to support
Greene’s conviction. Witness testimony established Greene’s
presence as the driver of the Ford truck minutes before the
collision, and DNA evidence established Greene’s blood was on a
rifle found in the truck after the collision. A jury could
reasonably infer from this evidence that Greene constructively
possessed the firearm.
Greene also contends that the district court abused its
discretion by admitting hearsay statements made by his mother at
the scene of the collision regarding the ownership of the Ford
truck and his possession of the rifle. The district court’s
evidentiary rulings are entitled to substantial deference and will
not be reversed absent a clear abuse of discretion. See United
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States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994). We conclude the
hearsay statements of Greene’s mother fell within the excited
utterance exception to the hearsay rule, Federal Rule of Evidence
803(2), and thus the district court did not abuse its discretion in
admitting the statements.
Accordingly, we affirm Greene’s conviction. 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
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