United States v. Johnson ( 2006 )

UNPUBLISHED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 Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-05-47)
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
imprisonment, in violation of 18 U.S.C. § 922(g) (2000). On
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.” United States v. Jones, 735 F.2d 785, 791 (4th
Cir. 1984). A jury’s verdict must be upheld on appeal if there is
substantial evidence in the record to support it. Glasser v.
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
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guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en 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.
Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc). Johnson
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
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). Our review of the record leads us to
conclude that the evidence presented to the jury, although
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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. United
States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). 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
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