United States v. Dennis Bliss ( 2012 )


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  •      Case: 11-51188     Document: 00512047555         Page: 1     Date Filed: 11/08/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    November 8, 2012
    No. 11-51188
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    DENNIS LAWRENCE BLISS,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 7:11-CR-121-1
    Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
    PER CURIAM:*
    Dennis Lawrence Bliss appeals his conviction of one count of possession
    of child pornography and nine counts of receiving child pornography, in violation
    of 
    18 U.S.C. § 2252
    (a)(2), (a)(4). He argues that the evidence was insufficient to
    support his convictions.
    “A challenge to the sufficiency of the evidence that is procedurally
    preserved, as this challenge was, is reviewed de novo.”                  United States v.
    McElwee, 
    646 F.3d 328
    , 340 (5th Cir. 2011) (internal quotation marks and
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 11-51188    Document: 00512047555      Page: 2    Date Filed: 11/08/2012
    No. 11-51188
    citation omitted). In reviewing the sufficiency of the evidence, we view all the
    evidence and draw all inferences and credibility determinations in the light most
    favorable to the verdict, and determine whether a rational jury could have found
    that the evidence established the elements of the offense beyond a reasonable
    doubt. McElwee, 
    646 F.3d at 340
    . “The evidence need not exclude every
    reasonable hypothesis of innocence or be wholly inconsistent with every
    conclusion except that of guilt, and the jury is free to choose among reasonable
    constructions of the evidence.” United States v. Guanespen-Portillo, 
    514 F.3d 393
    , 396 (5th Cir. 2008) (internal quotation marks and citations omitted). We
    do not reweigh the evidence or assess the credibility of the witnesses. United
    States v. Ramos-Cardenas, 
    524 F.3d 600
    , 605 (5th Cir. 2008).
    Bliss argues that the Government failed to prove that his possession of the
    images was knowing, given that there was evidence that his stepson could have
    committed the crime. The only testimony indicating that Bliss’s stepson used
    Bliss’s work-issued laptop came from Bliss’s mother, who stated that she saw the
    stepson using Bliss’s laptop. That testimony was contradicted by the stepson
    who testified that Bliss was protective of his work-issued laptop and refused to
    let him use it. Bliss’s stepson further testified that he never used Bliss’s laptop.
    In light of additional testimony by Bliss’s mother indicating that Bliss’s laptop
    was one of two laptops sitting atop the bar in Bliss’s house, the jury could have
    concluded that Bliss’s mother was simply mistaken about which laptop Bliss’s
    stepson was using. Such a conclusion is a reasonable construction of the
    evidence. See Guanespen-Portillo, 
    514 F.3d at 396
    .
    Given all of the testimony in this case, the jury could have reasonably
    inferred that Bliss knowingly possessed images of child pornography. See
    McElwee, 
    646 F.3d at 340
    . Therefore, a reasonable trier of fact could have
    concluded that the Government established every element of the offense beyond
    a reasonable doubt. Id.; § 2252(a)(4)(B).
    2
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    No. 11-51188
    Bliss argues that the Government failed to prove that he received the
    images of child pornography because it failed to prove that he downloaded the
    images in question at the Dollarhide plant. In support of his argument, Bliss
    contends that there was evidence that he was not always at work at the
    Dollarhide plant when his field service orders reflected that he was there, that
    the internet service at the Dollarhide plant was too poor to allow the downloads,
    and that his stepson had access to his computer and downloaded the images.
    The jury was free to weigh the value of the field service orders against the
    other testimony presented at trial. See Ramos-Cardenas, 
    524 F.3d at 605
    . The
    evidence establishing Bliss’s whereabouts on the dates involved in Counts 2
    through 10 of the indictment were the field service orders, which placed Bliss at
    work at the Dollarhide plant when the images were downloaded. By convicting
    Bliss of Count 2 through Count 10, but acquitting him of Counts 11 through 16,
    the counts related to images allegedly received by Bliss on February 14, 2011,
    the jury must have found that the field service orders were accurate as to the
    dates involved in the counts of conviction. This is a reasonable construction of
    the evidence presented at trial. See Guanespen-Portillo, 
    514 F.3d at 396
    .
    Bliss’s contention that it would not have been possible for him to download
    the images at the Dollarhide plant due to poor internet service is unavailing.
    The testimony at trial established that the internet service at the Dollarhide
    plant was intermittent or spotty, but that it was possible to be online and to use
    the internet at the plant. Bliss again tries to undermine his conviction by
    arguing that his stepson had access to his computer and downloaded the images.
    However, as discussed above, the jury could have reasonably concluded that the
    stepson never used Bliss’s laptop.
    Given all of the testimony in this case, the jury could have reasonably
    concluded that Bliss downloaded the images of child pornography that were the
    subject of Count 2 through Count 10 of the indictment onto his laptop while he
    was at work at the Dollarhide plant. In light of the foregoing, a reasonable trier
    3
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    No. 11-51188
    of fact could have concluded that the Government established every element of
    the offense beyond a reasonable doubt.     See McElwee, 
    646 F.3d at 340
    ;
    § 2252(a)(2). Accordingly, the judgment is AFFIRMED.
    4
    

Document Info

Docket Number: 11-51188

Judges: King, Clement, Higginson

Filed Date: 11/8/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024