United States v. FOX

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 15, 1998
• Docket: 97-6000
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 15 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 97-6000 v. (D.C. No. 96-CR-127) (W.D. Okla.) GARRETT LERON FOX,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, EBEL, and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Mr. Garrett Fox challenges the sufficiency of the evidence presented

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. against him in his trial for possession of crack cocaine with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1). We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm his conviction.

When reviewing a challenge to the sufficiency of the evidence supporting a

criminal conviction, we view the evidence, and the reasonable inferences drawn

therefrom, in the light most favorable to the government. See United States v.

Voss, 82 F.3d 1521, 1524-25 (10th Cir.), cert. denied, 117 S. Ct. 226 (1996). We

consider the evidence to be sufficient if “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In other words, “[w]e

reverse only if no rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” United States v. Wacker, 72 F.3d 1453,

1462-63 (10th Cir. 1995) (emphasis added) (citing United States v. Grimes, 967

F.2d 1468, 1472 (10th Cir.), cert. denied, 506 U.S. 927 (1992)), cert. denied, 117

S. Ct. 136 (1996).

To obtain a conviction for possession of crack cocaine with intent to

distribute under § 841(a)(1), the government must prove the defendant knowingly

possessed the illegal substance with the intent to distribute. United States v.

-2- Simpson, 94 F.3d 1373, 1379 (10th Cir.), cert. denied, 117 S. Ct. 411 (1996). Mr.

Fox contests the sufficiency of the evidence only on the element of possession.

The proof of that element is somewhat unusual in this case because the cocaine

was actually found on the person of an alleged co-conspirator, Ms. Kentasha

Holley.

The government can meet its burden on this issue by proving constructive,

rather than actual, possession. Simpson, 94 F.3d at 1379. Constructive

possession exists when a person “knowingly hold[s] the power and ability to

exercise dominion and control over [the item].” United States v. Culpepper, 834

F.2d 879, 881 (10th Cir. 1987). With respect to illegal drugs, this court has

defined constructive possession as an “appreciable ability to guide the destiny of

the drug,” and as “the ability to reduce an object to actual possession.” United

States v. Massey, 687 F.2d 1348, 1354 (10th Cir. 1982) (quoting other cases).

Constructive possession may be proved by circumstantial, as well as direct,

evidence. See United States v. Ruiz-Castro, 92 F.3d 1519, 1531 (10th Cir. 1996).

Contrary to Mr. Fox’s argument, the evidence offered at trial by the

government was more than sufficient to establish the requisite connection

between the cocaine and him. From the evidence introduced at trial, the jury

-3- could reasonably infer Mr. Fox and Ms. Holley were traveling together. 1 Along

with this inference, the testimony of Mr. Fox’s alleged co-conspirator, Ms.

Holley, provided sufficient evidence to meet the government’s burden of proof on

the element of possession. 2 Ms. Holley claimed Mr. Fox recruited her in Los

Angeles to carry the cocaine for him. She stated he planned the trip and bought

the tickets. In addition, she testified he had the drugs in his possession when they

met to leave on the trip, told her how to dress, brought the wet suit in which she

carried the cocaine, and packed the cocaine in the wet suit. Lastly, she testified

that when the two arrived at Little Rock, she would give Mr. Fox the drugs and

return to California. Viewed in the light most favorable to the government, this

testimony demonstrated Mr. Fox had the ability to guide the destiny of the

cocaine or to reduce it to actual possession, even though he did not actually

physically possess it. See Massey, 687 F.2d at 1354 (finding sufficient evidence

to show constructive possession when drugs were transported in a vehicle other

1 In addition to testimony on this point by Ms. Holley and the officers, the government presented evidence demonstrating Mr. Fox’s and Ms. Holley’s bus tickets were purchased at the same time. Mr. Fox argues this was a coincidence. Although it may have been, the jurors certainly could have reasonably considered it strong evidence the two were traveling together.

2 The uncorroborated testimony of an accomplice is sufficient to prove constructive possession of contraband. United States v. Downen, 496 F.2d 314, 318 (10th Cir.), cert. denied, 419 U.S. 897 (1974).

-4- than the one being driven by defendant).

Mr. Fox devotes considerable energy to highlighting the many

inconsistencies in Ms. Holley’s testimony. 3 However, this part of his brief reads

more like a closing jury argument than an appellate argument. Mr. Fox should

know re-evaluating the credibility of witnesses is an exercise in which we will not

engage. “The Anglo-Saxon tradition of criminal justice, embodied in the United

States Constitution and in federal statutes, makes jurors the judges of the

credibility of testimony offered by witnesses.” United States v. Bailey, 444 U.S.

394, 414 (1980). “Determining the weight and credibility of witness testimony,

therefore, has long been held to be the ‘part of every case [that] belongs to the

jury, who are presumed to be fitted for it by their natural intelligence and their

practical knowledge of men and the ways of men.’” United States v. Scheffer,

___ U.S. ___, 118 S. Ct. 1261, 1266 (1998) (quoting Aetna Life Ins. Co. v. Ward,

140 U.S. 76, 88 (1891)). The Supreme Court has even gone so far as to describe

making credibility determinations in criminal trials as the jury's core function.

3 Mr. Fox also challenges the credibility of another witness, Mr. Rodrick Syrus. A discussion of these arguments is unnecessary because we find sufficient evidence to support Mr. Fox’s conviction exists independent of Mr. Syrus’ testimony. We will note, however, that the arguments lack merit for the same reasons those against Ms. Holley lack merit – we do not re-evaluate the credibility of witnesses.

-5- Scheffer, 118 S. Ct. at 1266. For this reason, we will not make credibility

determinations when we evaluate the sufficiency of the evidence. United States v.

Russell, 109 F.3d 1503, 1506 (10th Cir.) (citing United States v. Pearson, 798

F.2d 385, 387 (10th Cir. 1986)), cert. denied, 117 S. Ct. 2525 (1997).

Apparently, the jury chose to believe Ms. Holley’s testimony against Mr.

Fox. The government presented sufficient evidence through her testimony to

support Mr. Fox’s conviction. We decline to evaluate her credibility or reweigh

the evidence. See Russell, 109 F.3d at 1506. The judgment is AFFIRMED.

Entered for the Court

WADE BRORBY United States Circuit Judge

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