United States v. Lucas Demling , 285 F. App'x 318 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3935
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*
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
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Lucas E. Demling, * [UNPUBLISHED]
*
Appellant. *
*
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Submitted: May 12, 2008
Filed: July 16, 2008
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Before RILEY, BOWMAN, and HANSEN, Circuit Judges.
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PER CURIAM.
Lucas E. Demling was convicted by a jury of one count of bank robbery in
violation of 18 U.S.C. § 2113(a). The district court1 sentenced him to 145 months in
prison, three years of supervised release, and $40,000 in restitution. He filed a timely
notice of appeal challenging the sufficiency of the evidence. We affirm.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
I. Background
The TeamBank in Fort Calhoun, Nebraska, was robbed at approximately 10:40
A.M. on August 24, 2006. Two tellers were counting a delivery of $60,000 cash when
a man wearing a hat and sunglasses entered the bank. He gave one of the tellers a bag,
produced a knife, and demanded money. The teller complied, filling the bag as the
man held the knife near her throat. The robber escaped with $40,000.
At trial, the Government called Sean Grant, who pled guilty as an accessory
after the fact. As part of his plea agreement, he agreed to cooperate in the case against
Demling. Grant testified that, on the morning of the robbery, he and Demling were
working together at a construction site near the TeamBank. He testified that they left
work early that morning and drove to the bank. They had previously discussed
robbing a bank, and en route Demling purportedly indicated that he intended to do just
that. Grant testified that he waited in an alley as Demling robbed the bank. Afterward,
the two made a brief reappearance at work before returning to their hotel room to
divide up the money. Later, Demling purportedly recounted to Grant the events that
took place inside the bank.
The Government introduced still frames from TeamBank's digital surveillance
camera showing that the robber had long bleached-blond hair. At trial, Demling's head
was shaved, but Grant identified Demling as the robber in the stills. So, too, did Cody
Crane, who worked with Demling and Grant at the construction site. Crane testified
that Demling's hair had been long and blond at the time of the robbery. He also
corroborated Grant's timeline of events on the morning of the robbery.
In addition to Grant and Crane, the Government introduced three other
witnesses who were familiar with Demling and who positively identified him as the
man in the stills. They were: Jody Cooper, a probation officer in McLean County,
Illinois; Detective Joe Zoeller, of the McLean County Sheriff's Office; and Amy
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McCollum, an acquaintance of Demling's. Cooper and Detective Zoeller had
encountered Demling a number of times in the course of their professional duties, and
both identified Demling from the stills. In addition, Cooper testified that Demling
once alluded to out-of-state wrongdoing. McCollum both identified Demling from the
stills and testified that she had twice heard Demling confess to the robbery. Demling’s
sole witness, his sister, testified that Demling had a tattoo on his ring finger at the time
of the robbery. Demling points out that neither teller noticed a tattoo on the robber's
finger.
An indictment of July 18, 2007, charged Demling with one count of bank
robbery. See § 2113(a). A jury found Demling guilty, and he was sentenced to 145
months in prison, three years of supervised release, and $40,000 restitution. On
appeal, Demling argues that the evidence is insufficient to support the verdict.
II. Sufficiency of the Evidence
"This court reviews the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the government, with all reasonable inferences
and credibility determinations made in support of the jury's verdict." United States v.
Aldaco, 477 F.3d 1008, 1020 (8th Cir. 2007) (internal marks omitted). "[W]e must
uphold the verdict if there is an interpretation of the evidence that would allow a
reasonable-minded jury to conclude guilt beyond a reasonable doubt." United States
v. Tucker, 169 F.3d 1115, 1116 (8th Cir. 1999) (internal marks omitted). Moreover,
"[c]redible and substantial testimony by an accomplice is sufficient to support a
conviction," United States v. Noe, 411 F.3d 878, 889 (8th Cir. 2005), cert. denied, 546
U.S. 1201 (2006), and "[i]n general, a girlfriend, relative, or other acquaintance is
better equipped than a juror to determine if an image on a tape is, in fact, the image
of the known person. This superior ability makes such a witness, if deemed credible,
a valuable aid to the jury." United States v. Dobbs, 449 F.3d 904, 910 (8th Cir. 2006),
cert. denied, 127 S. Ct. 1312 (2007).
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Section 2113(a) defines bank robbery to include taking "by force and violence,
or by intimidation . . . from the person or presence of another . . . any property or
money or any other thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings and loan
association." Given the lack of physical evidence, the primary issue is identity.
Demling argues that the evidence – including testimony identifying Demling
as the man in the stills, testimony alleging Demling's confessions, and Grant's
accomplice testimony – cannot permit a reasonable jury to conclude beyond a
reasonable doubt that Demling was the robber. In support of this argument, he attacks
the credibility and reliability of the Government witnesses' testimony. However, "this
court cannot review the credibility of trial witnesses on appeal." United States v.
McCarthy, 244 F.3d 998, 1001 (8th Cir. 2001). It is the jury's role to evaluate witness
testimony, United States v. Buckley, 525 F.3d 629, 632 (8th Cir. 2008), and whether
to believe Grant's accomplice testimony given pursuant to a plea agreement is just
such an evaluation. United States v. Shepard, 462 F.3d 847, 867 (8th Cir.), cert.
denied, 1275 S. Ct. 838 (2006). Ultimately, "[w]e are content to rely upon the good
sense and judgment of American juries, for evidence with some element of
untrustworthiness is customary grist for the jury mill." Manson v. Brathwaite, 432
U.S. 98, 116 (1977).
Demling’s other line of argument focuses on the tellers’ testimony, urging that
their testimony that they did not remember seeing a tattoo on the robber’s finger is
exculpatory. Yet Demling – while relying on the tellers’ testimony in an attempt to
undermine the verdict – cites research for the proposition that eyewitness testimony
is categorically unreliable. If credited, that research undermines Demling’s own
argument. If it is not credited, the argument still fails, since "the evaluation of
eyewitness testimony is for the jury alone." United States v. Oslund, 453 F.3d 1048,
1059 (8th Cir.) (internal marks omitted), cert. denied, 127 S. Ct. 750 (2006).
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In sum, at least five witnesses familiar with Demling identified him as the man
in the stills. McCollum and Grant both testified that they received a full confession
from Demling, while Cooper testified that Demling gave her a partial one. Crane
corroborated Grant’s timeline of events, and Grant himself pled guilty to being an
accessory after the fact. The evidence is sufficient to permit a reasonable jury to
conclude beyond a reasonable doubt that Demling robbed the bank.
Accordingly, we affirm the judgment of the district court.
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