United States v. Barry Baize , 622 F. App'x 198 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4452
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY DEAN BAIZE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00296-TDS-1)
Submitted: February 11, 2015 Decided: March 31, 2015
Before WYNN, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Robert A. J. Lang, Assistant United States
Attorney, Kimberly Sokolich, Third-Year Law Student,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Dean Baize was convicted after a two-day trial
before a jury of possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2012), and was
sentenced to 245 months’ imprisonment. On appeal, Baize
challenges his conviction, arguing that the evidence is
insufficient to support it, that the district court abused its
discretion in dismissing an ill juror and replacing her with an
alternate, and that—as applied to him—the “in or affecting
commerce” element of 18 U.S.C. § 922(g)(1) is unconstitutional.
We affirm.
We review the sufficiency of the evidence supporting a
conviction de novo. United States v. McLean, 715 F.3d 129, 137
(4th Cir. 2013). “A defendant bringing a sufficiency challenge
must overcome a heavy burden, and reversal for insufficiency
must be confined to cases where the prosecution’s failure is
clear.” United States v. Engle, 676 F.3d 405, 419 (4th Cir.
2012) (internal quotation marks and citation omitted).
In assessing the sufficiency of the evidence, our review is
limited to determining whether, viewing the evidence in the
light most favorable to the Government and accepting the
factfinder’s determinations of credibility, the verdict is
supported by substantial evidence, that is, “evidence that a
reasonable finder of fact could accept as adequate and
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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 quotation marks omitted).
To convict Baize of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), 1 the Government
was required to prove beyond a reasonable doubt that: (1) he was
previously convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) he voluntarily and
intentionally possessed a firearm; and (3) the possession was in
or affecting commerce, because the firearm had traveled in
interstate or foreign commerce. United States v. Gallimore,
247 F.3d 134, 136 (4th Cir. 2001); United States v. Langley,
62 F.3d 602, 606 (4th Cir. 1995) (en banc). The second element
may be satisfied by proof of actual possession or constructive
possession of the firearm. Gallimore, 247 F.3d at 136-37.
We conclude that the evidence, viewed in the light
most favorable to the Government, was sufficient to establish
Baize’s guilt. The parties stipulated that Baize had a prior
conviction for a crime punishable by a term of imprisonment
1
The indictment also charged Baize with violating 18 U.S.C.
§ 924(e), which provides for a fifteen-year minimum prison term
for a person who violates § 922(g)(1) and has three previous
convictions “for a violent felony or a serious drug offense, or
both, committed on occasions different from one another.”
Baize’s challenges to the sufficiency of the evidence, however,
do not pertain to § 924(e).
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exceeding one year. Three witnesses observed Baize actually
possess a firearm in the yard abutting an Eden, North Carolina
residence, and Baize was observed throwing a shiny object in a
field near the residence after walking from the yard to the
field. An operable .22 caliber Derringer firearm that was
manufactured in West Germany and had traveled in interstate or
foreign commerce was recovered near the location where Baize
threw the shiny object. Baize also admitted during a recorded
telephone conversation after his arrest that he possessed a
firearm.
On appeal, Baize addresses the credibility of the
witnesses who testified at trial, asserting that the
eyewitnesses’ testimony should be viewed with caution and that
his testimony denying possession of the firearm was credible.
We reject these assertions as meritless. It is the role of the
jury to weigh the credibility of the evidence, to resolve
conflicts in the evidence, and—where the evidence supports
different, reasonable interpretations—to decide which
interpretation to believe. McLean, 715 F.3d at 137. The jury
was entitled to credit the eyewitnesses’ testimony and discredit
that given by Baize and, in reviewing for substantial evidence,
this court will not weigh evidence or review witness
credibility. Id.
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Baize also asserts that there was no fingerprint or
DNA evidence linking him to the recovered firearm. We reject
this assertion as well. The testimony adduced by the Government
at trial was sufficient to establish Baize’s guilt; no
fingerprint or DNA evidence linking him to the firearm was
required. See United States v. Wilson, 115 F.3d 1185, 1190
(4th Cir. 1997) (“Just as the uncorroborated testimony of one
witness or of an accomplice may be sufficient to sustain a
conviction, the uncorroborated testimony of an informant may
also be sufficient.”).
Baize argues next that the district court abused its
discretion in dismissing a juror who became ill during the trial
and replacing her with an alternate. Rule 24(c) of the Federal
Rules of Criminal Procedure expressly authorizes district courts
to impanel alternate jurors and to substitute them for jurors
who can no longer serve. We review a district court’s decision
to replace a juror with an alternate for abuse of discretion.
United States v. Runyon, 707 F.3d 475, 517 (4th Cir. 2013),
cert. denied, 135 S. Ct. 46 (2014). “A finding that a district
court acted on an irrelevant legal basis or lacked factual
support for the conclusion that a juror was unable or
disqualified to perform his duty amounts to a finding that the
court abused its discretion.” United States v. Nelson, 102 F.3d
1344, 1349 (4th Cir. 1996).
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We conclude that the district court had both factual
support and a legally relevant basis for excusing the ill juror
and replacing her with an alternate. Prior to the commencement
of the second day of trial, the juror’s mother had reported to
the district court that the juror got sick the night before.
Although the juror traveled to the courthouse on the second day
of trial and was able to answer the district court’s questions
regarding her illness, she affirmed she was then dizzy and
nauseous, had vomited the night before, did not know how long
her illness—which had “off-and-on” symptoms—would last, and that
she probably would not be able to concentrate if she were to sit
as a juror that day. Given the uncertainty regarding the length
of the illness, the juror’s confirmation that concentration on
the evidence would likely be problematic, and the inconvenience
that any delay might cause, the district court acted within its
discretion in excusing the ill juror and replacing her with an
alternate rather than postponing the trial. See Nelson,
102 F.3d at 1349-50 (finding no abuse of discretion where
district court replaced two jurors with alternates because
jurors were scheduled to go on vacation); United States v.
Hayden, 85 F.3d 153, 157 (4th Cir. 1996) (finding no abuse of
discretion where district court replaced a juror who knew one of
the witnesses with an alternate); United States v. Colkley,
899 F.2d 297, 303 (4th Cir. 1990) (finding no abuse of
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discretion where district court excused a juror who failed to
appear for thirty minutes and replaced him with an alternate).
Finally, Baize argues that the “in or affecting
commerce” element of 18 U.S.C. § 922(g)(1) 2 as applied to him is
unconstitutional under the Commerce Clause. As Baize correctly
acknowledges, however, relief on this claim is foreclosed by
controlling Circuit precedent. See Gallimore, 247 F.3d at
137-38.
We therefore 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
2
Section 922(g)(1) prohibits individuals in specified
categories from “ship[ping] or transport[ing] in interstate or
foreign commerce, or possess[ing] in or affecting commerce, any
firearm or ammunition; or . . . receiv[ing] any firearm or
ammunition which has been shipped or transported in interstate
or foreign commerce.” 18 U.S.C. § 922(g)(1).
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