United States v. Johnnie Melvin Porter , 404 F. App'x 368 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 3, 2010
No. 09-15320
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 08-00333-CR-J-25-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNIE MELVIN PORTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 3, 2010)
Before TJOFLAT, EDMONDSON, and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Johnnie Melvin Porter appeals his convictions for
selling a firearm to a convicted felon, 18 U.S.C. § 922(d)(1), and for making a false
statement to federal authorities, 18 U.S.C. § 1001(a)(2).1 No reversible error has
been shown; we affirm.
On appeal, Defendant challenges the sufficiency of the evidence on his
convictions. He argues that the government’s chief witness, Edward Tyrone
Ballard, was incredible as a matter of law: Ballard’s testimony about when he
bought the Hi-Point from Defendant was impossible because Defendant did not yet
have the gun himself. Defendant also argues that Ballard’s testimony was flawed
materially by bias and disputed by other parties to the extent that no rational trier
of fact could rely on it to sustain a conviction.
We review the sufficiency of the evidence de novo; and we ask whether,
after viewing the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor, a
reasonable trier of fact could have found the essential elements of the crime
1
The accusations in the indictment included that Defendant sold a 9-millimeter Hi-Point
pistol (the “Hi-Point”) to a convicted felon and that Defendant later told federal authorities the
Hi-Point had been stolen.
2
beyond a reasonable doubt. United States v. Spoerke, 568 F.3d 1236, 1244 (11th
Cir. 2009). The jury is responsible for weighing and resolving conflicts in the
evidence. United States v. Pearson, 746 F.2d 787, 794 (11th Cir. 1984).
Determining witness credibility is the “sole province” of the jury. United
States v. Hamaker, 455 F.3d 1316, 1334 (11th Cir. 2006). And we will not disturb
the jury’s verdict on appeal unless the testimony is incredible as a matter of law.
United States v. Flores, 572 F.3d 1254, 1263 (11th Cir.), cert. denied, 130 S.Ct.
561, 562, 568 (2009). “Testimony is only ‘incredible’ if it relates to facts that the
witness could not have possibly observed or events that could not have occurred
under the laws of nature.” Id. (citations and quotation omitted).
Here, conviction on both counts turns on the single issue of whether
Defendant sold the Hi-Point. If Defendant sold the Hi-Point, this fact necessarily
negates his theory that the gun was stolen and renders false his statements to that
effect. See United States v. McCarrick, 294 F.3d 1286, 1290-91 (11th Cir. 2002)
(explaining that, on occasion, a false statement charge and the underlying charge
will both be contingent on the jury’s finding of a single fact).2
2
The other elements of the offenses are not in dispute. On the firearm count, Defendant
conceded that he knew Ballard was a convicted felon. United States v. Peters, 403 F.3d 1263,
1268 (11th Cir. 2005) (listing the elements of a section 922(d) offense). And on the false
statement count, Defendant conceded that he made a statement to federal agents which, if indeed
false, was material and intentional and within the agents’ purview. McCarrick, 294 F.3d at 1290(listing the elements of a section 1001 offense).
3
Ballard, Defendant’s cousin, testified that he bought the Hi-Point from
Defendant at Defendant’s house for $190 and that Defendant’s girlfriend, Shameka
McCray, and Ballard’s girlfriend, Danielle Tran, both were present at the
transaction as was Defendant’s father.3 Ballard earlier had given Defendant $50 as
a down payment for the Hi-Point. Ballard could not remember the exact date he
bought the Hi-Point, but stated that it was about a month or two before early
September 2006, when he had gone to a local shooting range with Defendant,
McCray, and Tran. Tran’s testimony corroborated Ballard’s account that he
bought the Hi-Point from Defendant in the summer of 2006, as well as the people
present at the transaction. And a police officer’s testimony corroborated that
Ballard gave Defendant a $50 down payment for the gun.
That Ballard’s testimony had weaknesses is without doubt. He was a
convicted criminal, and his criminal behavior was a source of bias in that it gave
him incentive to cooperate.4 And Ballard’s recollection of the transaction was
affected by his admitted substance abuse at the time. His account of when he
purchased the gun is unclear and, as Defendant notes, suggests that he purchased
3
Trial testimony revealed that police officers discovered the Hi-Point during a routine
traffic stop of Ballard. A background check disclosed that Ballard was a convicted felon.
4
In exchange for his testimony against Defendant, Ballard received a 5-year drug
sentence when the government could have sought a minimum 10-year sentence and additionally
charged him with firearms offenses.
4
the Hi-Point from Defendant before Defendant had even received it himself on 6
August 2006. But these weaknesses do not make Ballard’s testimony legally
incredible.
Other witnesses corroborated material aspects of Ballard’s account of the
transaction, including where it took place and who was present. Ballard admitted
he could not be certain about the timing of the purchase and explicitly left open the
possibility that the sale could have been in August. As such, this account did not
render it physically impossible that Ballard purchased the Hi-Point after Defendant
received it in August 2006. The date of sale was a point of conflict in the
government’s central theory that Defendant sold Ballard the gun, which the jury
was entitled to resolve in the government’s favor by concluding that Ballard
bought the Hi-Point from Defendant at some point after Defendant already had
possession of it. See Pearson, 746 F.2d at 794.
And by testifying himself, Defendant placed his own credibility
at issue. We have concluded that when a criminal defendant chooses to testify on
his own behalf, his statements, “if disbelieved by the jury, may be considered as
substantive evidence of the defendant’s guilt,” meaning that the jury may conclude
that the opposite of his testimony is true. United States v. Brown, 53 F.3d 312, 314
(11th Cir. 1995) (emphasis in original). Here, Defendant admitted at trial to
5
changing repeatedly his story about the location from which the firearm was stolen
and provided inconsistent justifications for those changes.5 Defendant also
testified that Ballard personally confessed to stealing the Hi-Point but that
Defendant did not call the police or tell investigating agents because he did not
think to do so. Defendant maintained on the stand that he was surprised when
agents later informed him that the Hi-Point was recovered from Ballard. The jury
was entitled to disbelieve Defendant’s account that the Hi-Point was stolen from
him and to conclude that the opposite was true.
In sum, the evidence developed at trial presented two stories that stood in
conflict to each other. The jury decided to credit one while discrediting the other,
resulting in Defendant’s conviction. We see no reason to undermine the jury’s
credibility determination and no reason to disturb the jury’s verdict. See United
States v. Yost, 479 F.3d 815, 818-19 (11th Cir. 2007) (we will disturb a guilty
verdict only if “no trier of fact could have found guilt beyond a reasonable doubt”).
AFFIRMED.
5
Defendant initially told investigating officers that the theft occurred out of his father’s
truck, which was parked in front of the house that Defendant shared with his father. But later, he
told officers that the theft occurred in the parking lot of a Best Buy retail store.
6