United States v. Brown ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 97-4710
    CURTIS L. BROWN,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Richmond.
    James R. Spencer, District Judge.
    (CR-97-30)
    Submitted: July 7, 1998
    Decided: August 6, 1998
    Before WILKINS and WILLIAMS, Circuit Judges, and PHILLIPS,
    Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    John B. Mann, LEVIT & MANN, Richmond, Virginia, for Appellant.
    Helen F. Fahey, United States Attorney, Michael C. Wallace, Sr.,
    Assistant United States Attorney, Richmond, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    A jury convicted Curtis Brown of one count each of possession of
    a firearm by a convicted felon and possession of marijuana with intent
    to distribute. On appeal he alleges that the district court erred by
    denying his motion to suppress a statement he made prior to being
    read his Miranda1 rights, that the evidence was insufficient to support
    the findings of guilt, and that he was entitled to an instruction on sim-
    ple possession. Finding no reversible error, we affirm.
    Police suspected Brown of selling marijuana from his residence. As
    they arrived at the residence to execute a search warrant, officers
    observed Brown standing on the front stoop of the residence. When
    Brown saw the officers, he leaned back into the residence and then
    came back out. Officers immediately detained Brown and asked him
    if there were any weapons inside. Brown replied that there was a rifle
    belonging to his brother in the residence. Officers apprehended three
    other persons in the house, including Brown's brother, and seized a
    small quantity of marijuana in the living room and a set of scales in
    the kitchen. Police found utility bills, a lease agreement for the resi-
    dence, a credit card, and various other letters and papers, all in
    Brown's name, in a bedroom. Also seized from the bedroom were a
    photograph of Brown, a Chinese assault rifle standing in plain view
    in a corner, cash, a set of scales, and over 300 grams of marijuana.
    Brown admitted to the officers that there was marijuana in the house.2
    Prior to trial, Brown made a motion to suppress his statement to
    police concerning the rifle.
    We review the district court's ultimate suppression decision de
    novo, but the underlying factual decisions are reviewed for clear error.
    See United States v. Rusher, 
    966 F.2d 868
    , 873 (4th Cir. 1992). We
    find that the district court properly denied Brown's motion. One of
    the officers testified that he questioned Brown regarding weapons
    _________________________________________________________________
    1 Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    2 Brown alleges on appeal that this admission only applied to the mari-
    juana found in the living room. However, no evidence supporting this
    conclusory allegation was presented at trial.
    2
    based on Brown's prior criminal history involving violence and the
    use of a firearm, the fact that the officers were executing a search
    warrant in a drug case, and Brown's actions when he spotted the
    police in front of the house. We find that under the circumstances, it
    was objectively reasonable for the officer to be concerned about his
    safety and the safety of others when he asked Brown whether there
    were any weapons in the house.3
    We must uphold Brown's convictions if, taking the evidence and
    all reasonable inferences that can be drawn from the evidence in the
    light most favorable to the Government, a reasonable jury could have
    found Brown guilty.4 Moreover, circumstantial evidence may support
    a guilty verdict "even though it does not exclude every reasonable
    hypothesis consistent with innocence." See United States v. Jackson,
    
    863 F.2d 1168
    , 1173 (4th Cir. 1989). In the present case, we find that
    the evidence was sufficient to support Brown's convictions.
    As a threshold matter, we find that there was ample evidence from
    which the jury could reasonably determine that Brown occupied the
    bedroom where the rifle and most of the marijuana were found. Since
    the rifle was in plain view, the jury could infer that he had knowledge
    of and access to the weapon, even without his statement to the police.5
    We further find that there was sufficient evidence from which the jury
    could infer that Brown possessed marijuana with the intent to distrib-
    ute. Although the amount of marijuana found in the living room of the
    residence was consistent with personal use, police found over 300
    grams of marijuana in Brown's bedroom, some of which was in indi-
    vidual plastic baggies. In addition, there was testimony that Brown
    was suspected of selling marijuana, and the large amount of cash
    _________________________________________________________________
    3 See New York v. Quarles, 
    467 U.S. 649
    , 655-59 (1984) (recognizing
    a "public safety exception" to the general rule requiring a Miranda warn-
    ing before questioning a suspect).
    4 See Glasser v. United States, 
    315 U.S. 60
    , 80 (1942).
    5 See United States v. Fields, 
    72 F.3d 1200
    , 1212 (5th Cir.), cert.
    denied, ___ U.S. ___, 
    65 U.S.L.W. 3231
    , 
    65 U.S.L.W. 3256
     (U.S. Oct.
    7, 1996) (No. 95-1639) (showing a plausible inference that a defendant
    had knowledge of and access to a weapon is sufficient to establish con-
    structive possession).
    3
    found in a jacket in the bedroom closet and the sets of scales suggest
    drug activity.
    Finally, Brown alleges that he was entitled to an instruction on the
    lesser-included offense of simple possession of marijuana because the
    marijuana found in the living room was consistent with personal use
    and because he never admitted ownership of the other marijuana
    found in the house. We disagree. In United States v. Wright, 
    131 F.3d 1111
    , 1112 (4th Cir. 1997), cert. denied, ___ U.S. ___, 
    66 U.S.L.W. 3782
     (U.S. June 8, 1998) (No. 97-9034), we held that"[a] defendant
    is not entitled to a lesser-included offense instruction as a matter of
    course." To receive such an instruction, "the proof of the element that
    differentiates the two offenses must be sufficiently in dispute that the
    jury could rationally find the defendant guilty of the lesser offense but
    not guilty of the greater offense." 
    Id.
     (citation omitted). For the ele-
    ment to be "sufficiently in dispute," Brown must show that the testi-
    mony on the distinguishing element was sharply conflicting, or that
    the conclusion as to the lesser offense was fairly inferable from the
    evidence presented. 
    Id.
     We find that Brown failed to satisfy either of
    these conditions.
    The distinguishing element here was Brown's intent in possessing
    the marijuana (i.e., for personal use or distribution). However, as in
    Wright, Brown failed to present any conflicting evidence or any evi-
    dence from which the jury could infer that his intent was to possess
    the marijuana for personal use. Although defense counsel elicited an
    admission that the marijuana found in the living room was consistent
    with personal use, Brown presented no evidence that this was in fact
    its intended purpose. No one testified that Brown was a marijuana
    user. Moreover, Brown's position completely ignores the large
    amount of marijuana found in his bedroom. Brown presented no evi-
    dence from which the jury could infer that the marijuana belonged to
    someone else or that there was no intent to resell it. Since Brown
    failed to place the distinguishing element sufficiently in dispute, he
    was not entitled to a lesser-included offense instruction.
    We therefore affirm Brown's convictions and sentence. We dis-
    pense with oral argument because the facts and legal contentions are
    adequately presented in the materials before the court and argument
    4
    would not aid the decisional process.
    AFFIRMED
    5