United States v. Frisbee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5316
CLEARMON ISAAC FRISBEE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-93-6)
Submitted: March 26, 1996
Decided: May 22, 1996
Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert Bobo Long, Jr., LONG & PARKER, P.A., Asheville, North
Carolina, for Appellant. Mark T. Calloway, United States Attorney,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Clearmon Isaac Frisbee, Jr. was charged with attempting to take a
deer with the use of artificial light within the Pisgah National Forest
in violation of 18 U.S.C.A. § 13 (West 1995) and N.C.G.S. §§ 113-
276.3, 113-291.1(b)(2), 113-294(e), 113-302(b) (1994). At trial, Fris-
bee's sole defense to the federal charge was an allegation that the
property upon which the deer decoy was located did not belong to the
United States Forest Service, but was in fact private land on which he
had been given permission to hunt. The magistrate judge conducting
Frisbee's trial found that the land in question belonged to the Forest
Service and therefore entered a judgment of conviction against Fris-
bee.
Frisbee appealed this conviction to the district court, arguing that
there was insufficient evidence to prove that the land in question was
in fact federal property. The district court disagreed. It therefore
affirmed Frisbee's conviction and dismissed his appeal.
Frisbee noted a timely appeal to this Court, arguing that there was
insufficient evidence to establish that the land in question was federal
property and therefore insufficient evidence of jurisdiction. When
subject matter jurisdiction involves a determination of an element of
the offense, the proper course of action is to examine the issue as it
relates to the merits. See Bell v. Hood, 327 U.S. 678, 682 (1946).
Accordingly, a sufficiency of the evidence review is the proper course
for Frisbee's claim. Our review of the evidence presented at trial leads
us to concur with the district court. Two North Carolina Resource
Commission officers intensely familiar with the area stated that the
deer decoy was located within the boundaries of the national park;
one of these officers explained that the park had acquired this land
five to ten years ago from a private land owner; and finally, the bor-
ders of the park were clearly labelled with signs and red blazes on
trees. In controversion of this testimony, Frisbee presented only his
own statement that he believed that land was still owned by a private
land owner who had given him permission to hunt on the land several
years ago. Taking this evidence in the light most favorable to the
Government, we find that there was sufficient evidence for a reason-
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able jury to have found that the land in question belonged to the For-
est Service beyond a reasonable doubt. See United States v. Tresvant,
677 F.2d 1018, 1021 (4th Cir. 1982) (providing sufficiency of the evi-
dence standard). Accordingly, we affirm Frisbee's conviction. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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