United States v. Anthony King ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4757
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY DEMPS KING, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:11-cr-00191-D-1)
Submitted: July 8, 2013 Decided: August 5, 2013
Before KING and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Joshua L. Rogers, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Demps King, Jr., appeals his conviction for
knowingly possessing a firearm after having been convicted of a
felony in violation of 18 U.S.C. § 922(g)(1). King claims the
evidence is insufficient to support the jury’s verdict. For the
reasons that follow, we affirm.
I.
A.
In the early morning hours of February 9, 2011, the
Fayetteville, North Carolina, Police Department received a call
for service regarding shots fired in the parking lot at a local
club. 1 Officers were told that the suspect vehicle was a black
sport utility vehicle, possibly a Ford Expedition, with one
headlight out. While en route to the call, Officer John Carro
observed a vehicle matching that description with one headlight
out in the parking lot of a gas station. Carro continued
traveling down the road so as to not alert the occupants of the
vehicle that he had noticed them. Carro radioed for backup
before he turned around to approach the vehicle. Detective
1
Because the district court returned a guilty verdict, we review
the evidence in the light most favorable to the Government. See
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en
banc).
2
Michael Ballard and Officer Jerrod Belanger responded to the
call for backup. The vehicle left the gas station and Carro
fell in behind it before initiating a traffic stop.
Carro opened, but stayed behind, the door of his patrol
car. He used the car’s public announcement system to order the
occupants out of the vehicle. The driver indicated that the
door of the vehicle would not open. Carro repeated his command,
but none of the four occupants complied.
By that time, Sergeant Dale Autry, II, arrived on scene
and, with Ballard and Belanger, approached the passenger side of
the vehicle. Belanger swung wide to the right to obtain a
better view of the inside of the vehicle. Both the front and
rear passenger windows were rolled down. Belanger saw King
reclined in the front passenger seat, and looking back into the
vehicle. Belanger ordered King to keep his hands where he could
see them. Ballard opened the rear passenger door and ordered
the right-rear passenger out and onto the ground. Autry then
approached the front passenger seat and ordered King out of the
vehicle. Autry was able to grab King’s right hand but was
unable to secure King’s left hand.
Before Autry was able to secure King, Belanger saw King
retrieve a firearm from his lap, grab the firearm by the barrel,
and reach backward between the two front seats. Autry saw some
type of object in King’s left hand and also saw King place
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something underneath the left rear seat of the vehicle, but was
not sure what the object was. Ballard, who was attempting to
secure the right rear passenger on the ground next to the
vehicle, saw King’s left arm between the two front seats, but
saw nothing in King’s left hand. Ballard grabbed King’s left
arm and Autry then removed King from the vehicle.
Ballard walked around to the driver’s side of the vehicle
and looked at the backseat floorboard where he had observed King
reach. He discovered a .38 caliber Smith & Wesson revolver on
the floorboard just in front of the left rear passenger seat of
the vehicle. Autry asked for a crime scene technician to
respond to their location to test all of the occupants’ hands
for gunshot residue (GSR). Three of the four occupants in the
vehicle were tested for GSR on scene and all three tested
negative. King, however, resisted any attempt to test him on
scene, but he was ultimately tested at the police station, where
officers found gunshot residue on his hands.
B.
The grand jury returned a two-count indictment alleging
that King possessed a firearm and that he possessed ammunition,
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in each instance after having been convicted of a felony. 2 After
a four-day trial, the jury acquitted King on the possession of
ammunition by a felon charge but convicted him of possession of
a firearm by a felon. This appeal followed.
II.
A.
The sole issue before us is whether the district court
erred in denying King’s motion for judgment of acquittal. King
contends that the evidence presented at trial was insufficient
to allow the jury to find him guilty beyond a reasonable doubt.
This presents a question of law which we review de novo. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
King’s conviction can stand only 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 consists of 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. King, 628 F.3d 693, 700 (4th Cir.
2011)(internal quotations omitted). We can reverse a conviction
2
The ammunition charge stems from an event unrelated to the one
before us.
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based upon insufficiency of the evidence only when the
“prosecution’s failure is clear.” United States v. Moye, 454
F.3d 390, 394 (4th Cir. 2006) (en banc) (citing United States v.
Jones, 735 F.2d 785, 791 (4th Cir. 1984)). We must “also assume
that the jury resolved all contradictions in the testimony in
favor of the government.” Id. (citing United States v. Sun, 278
F.3d 302, 313 (4th Cir. 2002)). Lastly, when the evidence tends
to support differing reasonable interpretations, the
determination of which interpretation to accept is properly
within the purview of the jury. United States v. Wilson, 118
F.3d 228, 234 (4th Cir. 1997).
B.
King’s sole argument is that there was insufficient
evidence for the jury to find that he possessed the firearm. He
contends that the officer who observed the firearm in King’s
hand--Officer Belanger--was too far away and had an obstructed
view of the car. Additionally, King relies on the fact that the
officer who was closest to him--Detective Ballard--saw nothing
in King’s hand and that he believed King was reaching for
something in the backseat floorboard.
King also contends that the results of the GSR test showing
the presence of gunshot residue on King’s hands could have been
produced by transfer either (1) from the officers who arrested
6
him, (2) from the patrol car used to transport him to the police
station, or (3) from the holding cell in which he was placed
upon arriving at the police station.
The government responds that the jury could reasonably
conclude that King actually possessed the firearm by holding it
in his left hand and placing it on the backseat floorboard.
First, says the government, Officer Belanger observed King
holding the firearm by the barrel, reaching through the center
console area of the car, and placing the firearm in the backseat
floorboard. Second, Sergeant Autry saw King with “something in
his left hand” and that King was “putting something underneath
the back seat . . . an object of some sort.” Third, Detective
Ballard observed a firearm in the backseat floorboard where King
was reaching after King was secured by Sergeant Autry and
Officer Belanger. Finally, the GSR test showed that King had
gun shot residue on his hands.
We agree with the government. The totality of the evidence
the government produced at trial (which we have summarized
above), viewed in the light most favorable to the government,
was more than sufficient to support the jury’s verdict. The
jury was also entitled to reject King’s arguments regarding the
alleged contradictions in the evidence. Sun, 278 F.3d at 313.
King relies upon United States v. Blue, 957 F.2d 106 (4th
Cir. 1992), in arguing that his conviction should not stand. In
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Blue, an officer stopped a vehicle for an alleged seat belt
violation. Id. at 107. As the officer approached the vehicle,
he observed Blue--a passenger--“dip” his shoulder as if he were
reaching under his seat. Id. The officer obtained consent to
search the vehicle and found a firearm underneath the passenger
seat. Id. Blue was charged with possession of a firearm by
felon. Id. The government proceeded on a constructive
possession theory and relied solely upon two pieces of evidence:
(1) Blue “dipping” his shoulder as the officer approached the
vehicle; and (2) the officer’s subsequent discovery of a firearm
under the passenger seat. Id. at 107-08.
We reversed Blue’s conviction, ruling that in order “[t]o
uphold a finding of constructive possession, . . . more evidence
of dominion and control” was required. Id. at 108. We
concluded that “the government introduced no evidence
demonstrating that Blue owned the gun or testimony that Blue had
been seen with the gun.” Id. We also noted that the government
failed to show “that Blue had ever been in [the car in which the
gun was found] before.” Id.King’s reliance upon Blue is misplaced for the simple
reason that Officer Belanger actually saw King with a firearm in
his hand. Additionally, the evidence at trial showed that King
frequently used the vehicle in which police found the gun, as it
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belonged to King’s mother. Blue, therefore, is of no help to
King.
We affirm the district court’s judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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