UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4566
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO LIVINGSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00024-D-1)
Submitted: May 14, 2014 Decided: May 21, 2014
Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Damonte Livingston appeals from his conviction
on two counts of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1) (2012). On
appeal, Livingston contests the district court’s denial of his
motion for judgment of acquittal on count one: unlawful
possession, as a convicted felon, of a Hi-Point 9mm semi-
automatic handgun and ammunition on January 27, 2011. He also
asserts that the district court abused its discretion in using a
special verdict form. Finding no error, we affirm.
Livingston first contends that his conviction on count
one was not supported by the evidence. We review de novo the
denial of a Fed. R. Crim. P. 29 motion. United States v.
Gillion, 704 F.3d 284, 294 (4th Cir. 2012), cert. denied, 133 S.
Ct. 2039 (2013). “[T]he jury verdict must be upheld if there
exists substantial evidence [ ] to support the verdict, viewing
the evidence in a light most favorable to the government.”
United States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001); see
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
“Substantial 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.”
Gillion, 704 F.3d at 294 (citing United States v. Palacios, 677
F.3d 234, 248 (4th Cir.), cert. denied, 133 S. Ct. 124 (2012)).
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This court will reverse on the basis of insufficient evidence
only in “cases where the prosecution’s failure is clear.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(internal quotations omitted).
To support a conviction for being a felon in
possession of a firearm under § 922(g)(1), the government must
prove the following elements: “(1) the defendant previously had
been convicted of a [felony]; (2) the defendant knowingly
possessed . . . the firearm; and (3) the possession was in or
affecting commerce, because the firearm had travelled in
interstate or foreign commerce at some point during its
existence.” United States v. Moye, 454 F.3d 390, 395 (4th Cir.
2006) (en banc).
Livingston argues that his conviction on count one was
based on witness testimony and was not supported by any
significant physical, written, or photographic evidence. He
does not contest, however, that the Government met its burden
with respect to the first and third elements. Rather, he
contends that the Government did not demonstrate his knowing
possession of the firearm.
We conclude that, viewing the evidence in the light
most favorable to the Government, the evidence is sufficient for
a reasonable trier of fact to find that Livingston committed the
charged offense. First, the Government sufficiently proved that
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the firearm was found within Livingston’s reach and in the area
of the vehicle where Livingston was seated. The Government also
presented testimony that Livingston possessed ammunition in a
coat he was wearing that matched the ammunition in the gun.
Although Livingston argues that the investigation was lacking,
he did not put on any evidence to dispute the investigatory
findings. We therefore conclude that substantial evidence
supported the verdict.
Next, Livingston contends that the district court
abused its discretion in using a special verdict form. The form
first asked the jury whether Livingston was guilty of each
individual count, citing the elements of the offense as alleged
in the indictment. Next, the verdict form asked, if in fact the
jury had found Livingston guilty, which items did Livingston
possess in relation to each count. The court used the special
verdict form after defense counsel objected that a bag of
ammunition related to count two was not proven to have been
involved in interstate commerce, and therefore the jury could
not convict based on that item alone.
Livingston asserts that the jury could have inferred
that Livingston was already found guilty of violating § 922(g)
and it was required to determine which items he possessed in
doing so. He also summarily states that the wording was
confusing. We review the district court’s decision to give a
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jury instruction and to use a special verdict form for abuse of
discretion. United States v. Passaro, 577 F.3d 207, 221 (4th
Cir. 2009); United States v. Udeozor, 515 F.3d 260, 271 (4th
Cir. 2008). “Without any evidence to the contrary, [this court]
must assume that the jury followed the instructions given to it
by the court.” United States v. Hager, 721 F.3d 167, 189 (4th
Cir. 2013), cert. denied, 2014 WL 1659920 (U.S. Apr. 28, 2014).
The special verdict form itself was clear and
unambiguous. Further, the court more than amply instructed the
jury that Livingston was not presumed guilty of any crime and
that it need not find him guilty if the evidence did not support
it. The jury is presumed to follow the court’s instruction
unless there is evidence otherwise. See Hager, 721 F.3d at 189.
Applying the applicable standard of review, we must conclude
that the district court did not abuse its discretion by electing
to use the special verdict form in this case.
We therefore affirm the 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
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