UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5326
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PENNY RENAE YOUNG,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:10-cr-00010-JPB-DJJ-1)
Submitted: October 27, 2011 Decided: November 17, 2011
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Byron Craig Manford, Martinsburg, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Paul T.
Camilletti, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Penny Renae Young appeals her conviction for two
counts of unauthorized use of an access device, in violation of
18 U.S.C. § 1029(a)(2) (2006). Young argues first that the
district court erred in providing an inadequate response to the
jury’s question of law and second that the district court erred
in denying Young’s motion for a new trial and motion for
judgment of acquittal. We have reviewed the record and find no
reversible error. Accordingly, we affirm.
The district court’s answer to the jury’s question
must be reviewed for plain error because Young did not object.
Fed. R. Crim. P. 52(b). “[T]he necessity, extent, and character
of any supplemental instructions to the jury are matters within
the sound discretion of the district court.” United States v.
Grossman, 400 F.3d 212, 219 n.2 (4th Cir. 2005) (citation
omitted).
“When evaluating the adequacy of supplemental jury
instructions given in response to a question asked by
the jury during deliberations, we ask whether the
court’s answer was reasonably responsive to the jury’s
question and whether the original and supplemental
instructions as a whole allowed the jury to understand
the issue presented to it.”
Taylor v. Virginia Union Univ., 193 F.3d 219, 240 (4th Cir.
1999) (internal quotation marks and citation omitted). “[T]he
district court’s duty is simply to respond to the jury’s
apparent source of confusion fairly and accurately without
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creating prejudice. The particular words chosen, like the
decision whether to issue any clarification at all, are left to
the sound discretion of the district court.” United States v.
Smith, 62 F.3d 641, 646 (4th Cir. 1995) (citation omitted).
Given the specificity of the jury charge, we conclude that Young
has not shown that the jury’s question warranted any
supplemental instruction. Accordingly, the district court did
not err in referring the jury to the relevant sections of the
jury charge in answering the jury’s question.
We review a district court’s decision to deny a Rule
29 motion for a judgment of acquittal de novo. United States v.
Hickman, 626 F.3d 756, 762-63 (4th Cir. 2010). A jury verdict
must be sustained if, viewing the evidence in the light most
favorable to the Government, the verdict is supported by
substantial evidence. Id. at 763. “[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.” Id. (internal quotation marks
omitted). The appellate court cannot make credibility
determinations and must assume the jury resolved all testimonial
contradictions in the Government’s favor. United States v.
Penniegraft, 641 F.3d 566, 572 (4th Cir. 2011). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” United States v. Ashley, 606
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F.3d 135, 138 (4th Cir. 2010) (internal quotation marks
omitted).
Despite Young’s challenges to the credibility of the
Government’s evidence, “[t]he jury, not the reviewing court,
weighs the credibility of the evidence and resolves any
conflicts in the evidence presented.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks
and citation omitted). Our review of the record leads us to
conclude that the district court did not err in denying Young’s
motion for a new trial and motion for acquittal and that the
evidence was sufficient to support the jury’s finding.
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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