United States v. Howard Davis ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4435
HOWARD DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-97-166)
Submitted: January 26, 1999
Decided: February 16, 1999
Before LUTTIG and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Howard Davis appeals his conviction for possession with intent to
distribute crack cocaine in violation of 21 U.S.C.§ 841(a)(1) (1994).
During the course of a relatively routine traffic stop, Davis was
arrested for driving on a suspended license and an additional out-
standing violation. During the search of the car incident to Davis's
arrest, the investigating officer found more than ninety grams of crack
cocaine in the pocket of a jacket the officer discovered on the back
seat of the rental car Davis was driving. Following a trial, the jury
found Davis guilty of possession of the crack cocaine.
Davis noted a timely appeal and his attorney filed a brief pursuant
to Anders v. California, 386 U.S. 738, 744 (1967), in which he repre-
sents that there are no arguable issues of merit in this appeal. None-
theless, in his brief, counsel addressed whether the district court erred
in denying Davis's Fed. R. Crim. P. 29 motion for acquittal. The time
for filing a supplemental brief has passed and Davis has not
responded, despite being advised of his right to do so. Because we
find counsel's assignment of error to be without merit and can discern
no other error in the record on appeal, we affirm Davis's conviction
and sentence.
We review the denial of a motion for acquittal under a sufficiency
of the evidence standard. See Fed. R. Crim. P. 29; United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998). In deciding whether the
evidence was sufficient, the relevant question is not whether the court
is convinced of guilt beyond a reasonable doubt, but rather whether
the evidence, when viewed in the light most favorable to the govern-
ment, was sufficient for a rational trier of fact to have found the
essential elements of the crime beyond a reasonable doubt. See
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert. denied, 519
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U.S. 115 (1997). If substantial evidence exists to support a verdict,
the verdict must be sustained. See Glasser, 315 U.S. at 80.
This offense requires proof beyond a reasonable doubt that Davis
knowingly and intentionally possessed the cocaine found in the jacket
on the back seat of the rental car he was driving with the intent to dis-
tribute it. See United States v. Williams, 41 F.3d 192, 199 (4th Cir.
1994). It is well established that possession of a controlled substance
can be actual or constructive. See United States v. Wright, 991 F.2d
1182, 1187 (4th Cir. 1993). "Proof of constructive possession is suffi-
cient to satisfy the element of knowing possession." United States v.
McCracken, 110 F.3d 535, 541 (8th Cir. 1997). The government may
establish constructive possession by circumstantial as well as direct
evidence. See Burgos, 94 F.3d at 873. In addition, possession may be
sole or joint. See United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir.
1993).
In order "to establish constructive possession, the government must
show ownership, dominion, or control over the drug or the premises
or vehicle in which it was concealed." Id. ; United States v. Blue, 957
F.2d 106, 107 (4th Cir. 1992) (quoting United States v. Ferg, 504
F.2d 914, 916-17 (5th Cir. 1974)). The evidence at trial showed that
Davis was driving the rental car, thereby asserting dominion and con-
trol over the vehicle in which the crack cocaine was concealed. This
fact allowed the rational conclusion that Davis had constructive pos-
session of the crack cocaine. In addition, despite previously denying
ownership, while Davis was being processed, he took the jacket with-
out protest from the arresting officer when the officer handed it to him
and put it on without being instructed to do so. The jacket fit Davis,
buttressing the conclusion that the jacket belonged to him as did the
cocaine in the pocket. As a result, the evidence allowed a rational jury
to find beyond a reasonable doubt that Davis possessed the crack
cocaine.
Davis's defense rested on evidence that he did not own a jacket like
the one the arresting officer found in the rental car. Presumably,
Davis wanted the jury to reach the conclusion that someone else had
left the jacket in the car before Davis obtained control over it. As a
result, contends Davis, he was not in knowing possession of the jacket
or its contents. However, circumstantial evidence need not exclude
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every reasonable hypothesis of innocence. See United States v.
Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989); see also United States
v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990) ("In sum,
knowing possession can be inferred from the defendant's control over
the vehicle in which the illicit substance is contained if there exists
other circumstantial evidence that is suspicious in nature or demon-
strates guilty knowledge.").
Davis does not explicitly challenge the Government's proof regard-
ing his intent to distribute the cocaine. See United States v. Roberts,
881 F.2d 95, 99 (4th Cir. 1989) (noting intent may be inferred from
quantities too large for personal consumption). Moreover, there was
expert testimony at trial that tended to show that a user amount of
crack cocaine was approximately one gram of crack. Davis was in
possession of more than ninety times that amount. A rational jury
could find beyond a reasonable doubt that Davis intended to distribute
this large amount of crack cocaine. The government presented sub-
stantial evidence to support the guilty verdict. The district court did
not err in denying Davis's Rule 29 motion.
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by his client to do so,
counsel should prepare a timely petition for writ of certiorari. Conse-
quently, counsel's motion to withdraw is denied. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the material before the court and argument would not aid
the decisional process.
AFFIRMED
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