United States v. Greene

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-5145

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DOUGLAS TODD GREENE,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00246)

Submitted: August 31, 2007 Decided: September 28, 2007

Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

R. Brent Walker, LAW OFFICE OF R. BRENT WALKER, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Corey F. Ellis, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Douglas Todd Greene appeals his conviction following a

jury trial for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2000). Finding no reversible

error, we affirm.

Greene first contends there was insufficient evidence to

support his conviction. We review the district court’s decision to

deny a motion for judgment of acquittal de novo. United States v.

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If the motion was

based on insufficiency of the evidence, the verdict must be

sustained if there is substantial evidence, taking the view most

favorable to the government, to support it. Glasser v. United

States, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is

evidence that a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc).

To establish possession of a firearm by a convicted felon

under § 922(g)(1), the government must prove that “(1) the

defendant previously had been convicted of a crime punishable by a

term of imprisonment exceeding one year; (2) the defendant

knowingly possessed . . . the firearm; and (3) the possession was

in or affecting commerce, because the firearm had traveled in

interstate or foreign commerce.” United States v. Langley, 62 F.3d

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602, 606 (4th Cir. 1995) (en banc). Greene challenges only the

knowing possession element of the offense on appeal. Possession

may be actual or constructive. United States v. Rusher, 966 F.2d

868, 878 (4th Cir. 1992). A person has constructive possession of

an item if he knows of its presence and exercises or has the power

to exercise dominion and control over it. United States v. Scott,

424 F.3d 431, 435 (4th Cir.), cert. denied, 126 S. Ct. 779 (2005).

Possession may be established by circumstantial evidence. United

States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993), overruled on

other grounds by United States v. Bailey, 516 U.S. 137 (1995).

Viewing the evidence in the light most favorable to the

Government, we conclude there was sufficient evidence to support

Greene’s conviction. Witness testimony established Greene’s

presence as the driver of the Ford truck minutes before the

collision, and DNA evidence established Greene’s blood was on a

rifle found in the truck after the collision. A jury could

reasonably infer from this evidence that Greene constructively

possessed the firearm.

Greene also contends that the district court abused its

discretion by admitting hearsay statements made by his mother at

the scene of the collision regarding the ownership of the Ford

truck and his possession of the rifle. The district court’s

evidentiary rulings are entitled to substantial deference and will

not be reversed absent a clear abuse of discretion. See United

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States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994). We conclude the

hearsay statements of Greene’s mother fell within the excited

utterance exception to the hearsay rule, Federal Rule of Evidence

803(2), and thus the district court did not abuse its discretion in

admitting the statements.

Accordingly, we affirm Greene’s conviction. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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