United States v. Blackmon , 258 F. App'x 523 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4483
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANKLIN BLACKMON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cr-00129-CCB)
Submitted: November 26, 2007 Decided: December 11, 2007
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Rod
J. Rosenstein, United States Attorney, Tonya Kelly Kowitz,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Franklin Blackmon appeals from his conviction of being in
possession of a firearm after having been convicted of a felony
offense, in violation of 18 U.S.C. § 922(g)(1) (2000). He contends
that the evidence was insufficient to support the jury’s verdict.
We affirm his conviction.
At Blackmon’s trial, Officer Waldman testified that,
while he was conducting routine patrol in a high crime area, he
heard what sounded like gunshots, and he saw several people running
from the 1700 block of Castle Street, heading north. He then heard
several more shots and drove his vehicle onto Castle Street to
investigate. After turning onto Castle, Officer Waldman saw a man,
later identified to be Blackmon, bending over near a parked car and
placing a shiny object behind the car’s tire. The man then started
walking down the street in the direction of Officer Waldman. The
officer got out of his police vehicle and ordered the man to stop.
Blackmon continued walking. Waldman drew his service revolver and
again directed Blackmon to stop. Blackmon then ran down an
alleyway. Officer Waldman holstered his revolver and chased and
ultimately apprehended Blackmon.
Once Blackmon was secured, Officer Waldman returned to
Castle Street and located a silver revolver behind the tire of the
parked vehicle near where he had seen Blackmon hunched over. The
revolver contained six spent shell casings. Blackmon was placed
- 2 -
under arrest and subsequently charged with being a felon in
possession of a firearm.
On cross-examination, defense counsel sought to impeach
Waldman based on his prior testimony during a pretrial motion
hearing. Specifically, defense counsel questioned Waldman
regarding inconsistencies in his testimony about where he thought
the gunshots were coming from when he first heard them, whether the
parked car under which Blackmon was seen placing the firearm was
facing north or south on Castle Street, and whether the gun was
placed near the rear tire or the front tire.
The Government also presented the recording of radio
calls Waldman made concerning the gunshots sounds and his chase of
Blackmon. During the calls, Officer Waldman reported hearing
possible gunshot fire and seeing people running. Shortly
thereafter he reported that a man was running away, and a bit
later, reported that he had seen that man bend down near a car and
drop something. On cross-examination, defense counsel noted that
Waldman testified that he saw Blackmon drop a gun near the
vehicle’s tire. Counsel asserted that, if Waldman saw a gun, why
did he not alert the officers to the presence of a gun in a public
place. Counsel also questioned Waldman’s radio silence when a
fellow officer requested that a gun dog and a helicopter be sent to
help locate the gun.
- 3 -
The parties stipulated that Blackmon had previously been
convicted of a felony, that the gun recovered from under the car on
Castle Street was a firearm, and that it had traveled in interstate
commerce. The Government also presented testimony that there were
no suitable fingerprints recovered from the firearm, and that it is
difficult to obtain fingerprints from firearms.
During closing arguments, the Government asserted that
the discrepancies noted by defense counsel were minor and that
Waldman “never wavered on the most important facts,” specifically,
that after hearing the gunshots, he turned his car onto Castle
Street, that Blackmon was the only person on the street, that he
saw Blackmon place something shiny beside the tire of a parked car,
that Blackmon ran after Officer Waldman directed him to stop, and
that he discovered the gun in the place where he previously saw
Blackmon place a shiny object. The Government argued that the
conflicting statements about which way the parked vehicle was
facing and how far into the street Waldman went before stopping do
not concern material facts.
A defendant challenging the sufficiency of the evidence
“bears ‘a heavy burden.’” United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997) (quoting United States v. Hoyte, 51 F.3d 1239,
1245 (4th Cir. 1995)). This court reviews sufficiency of the
evidence challenges by determining whether, viewing the evidence in
the light most favorable to the Government, any rational trier of
- 4 -
fact could find the essential elements of the crime beyond a
reasonable doubt. Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.
1982). Witness credibility is within the sole province of the
jury, and the court will not reassess the credibility of testimony.
United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994); United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
We find that, viewing the evidence in the light most
favorable to the Government and resolving all contradictions in the
evidence in the Government’s favor, United States v. Lomax, 293
F.3d 701, 705 (4th Cir. 2002); Tresvant, 677 F.2d at 1021, there
was sufficient evidence from which the jury could conclude that
Blackmon was in possession of the firearm. Officer Waldman saw
Blackmon place a shiny object next to the tire of a parked car and,
after apprehending Blackmon, Waldman located the gun next to the
tire of the parked car. Accordingly, we affirm Blackmon’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
- 5 -