United States v. Epperson ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4276
DAVID MARTINAS EPPERSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-99-63)
Submitted: February 26, 2002
Decided: March 20, 2002
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Wayne D. Inge, Roanoke, Virginia, for Appellant. John Brownlee,
United States Attorney, Anthony P. Giorno, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. EPPERSON
OPINION
PER CURIAM:
David Martinas Epperson, Jr., appeals his convictions and sen-
tences of two concurrent terms of 120 months imprisonment for being
a felon in possession of firearms (count one), in violation of 18
U.S.C.A. § 922(g)(1) (West 2000), and possession of stolen firearms
(count two), in violation of 18 U.S.C.A. § 922(j) (West 2000). Epper-
son argues the district court erred by admitting the testimony of John
Wayne Thompson, by denying his motion for judgment of acquittal
on count two, by submitting to the jury an instruction concerning
count two that allegedly shifted the burden of proof, and by enhancing
Epperson’s sentencing guidelines offense level by two levels because
his relevant conduct involved a destructive device. Finding no revers-
ible error, we affirm.
Epperson’s first trial ended in a mistrial when the jury was unable
to reach a verdict. Prior to his second trial, Epperson moved to
exclude the testimony of John Wayne Thompson, arguing Thomp-
son’s testimony was inadmissible. This court reviews such evidenti-
ary decisions for abuse of discretion. See United States v. Hassan El,
5 F.3d 726, 731 (4th Cir. 1993). We find Thompson’s testimony was
properly admitted as relevant evidence supporting count two; there-
fore, the district court did not abuse its discretion.
Epperson next argues the district court erred by denying his motion
for judgment of acquittal based on sufficiency of the evidence on
count two. We review de novo the district court’s decision to deny a
motion for judgment of acquittal. United States v. Romer, 148 F.3d
359, 364 (4th Cir. 1998). To determine whether there was sufficient
evidence, this court considers whether the evidence, viewed in the
light most favorable to the Government, was sufficient for a rational
trier of fact to have found the essential elements of the crime beyond
a reasonable doubt. Id.; United States v. Burgos, 94 F.3d 849, 862-63
(4th Cir. 1996) (en banc).
Epperson claims the testimony at trial was insufficient to establish
he knew the firearms at issue were stolen. We have reviewed the
record and find the evidence was sufficient for a rational trier of fact
UNITED STATES v. EPPERSON 3
to find beyond a reasonable doubt that Epperson knew the firearms
were stolen.
Epperson also argues the burden of proof was impermissibly
shifted by a jury instruction that permitted the jury to infer that Epper-
son’s possession of recently stolen property meant that he knew the
property was stolen. Epperson notes a similar instruction was
approved in Barnes v. United States, 412 U.S. 837 (1973), but argues
that the jury instruction given to his jury omitted language given in
the instruction in Barnes that rendered the instruction incomplete and
impermissibly shifted the burden of proof.
Jury instructions are not evaluated in isolated segments, but are
considered as a whole. See United States v. Cropp, 127 F.3d 354, 360
(4th Cir. 1997). The instruction specifically stated it was the jury’s
duty to determine which, if any, inferences to draw from the evidence
of the case, and the jury instructions as a whole adequately explained
the purpose of inferences and the Government’s burden of proof.
Therefore, we find Epperson’s argument without merit.
Finally, Epperson objects to a two point enhancement to his sen-
tencing guidelines offense level under U.S. Sentencing Guidelines
Manual § 2K2.1(b)(3) (2000). Epperson argues the evidence was
insufficient to support the finding that his relevant conduct involved
a destructive device. The district court’s factual findings concerning
the enhancement are reviewed for clear error. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Testimony at trial
showed an anti-tank rifle was stolen at the same time as the firearms
listed in the indictment, that Epperson described the weapon to two
people in an apparent effort to interest one of the people in buying it,
and he drew a picture of it in the presence of one of those people.
Based on these facts, we conclude the district court’s finding was not
clearly erroneous.
We therefore affirm Epperson’s convictions and sentences. We dis-
pense 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