UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4710

CURTIS L. BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-97-30)

Submitted: July 7, 1998

Decided: August 6, 1998

Before WILKINS and WILLIAMS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John B. Mann, LEVIT & MANN, Richmond, Virginia, for Appellant.
Helen F. Fahey, United States Attorney, Michael C. Wallace, Sr.,
Assistant United States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Curtis Brown of one count each of possession of
a firearm by a convicted felon and possession of marijuana with intent
to distribute. On appeal he alleges that the district court erred by
denying his motion to suppress a statement he made prior to being
read his Miranda1 rights, that the evidence was insufficient to support
the findings of guilt, and that he was entitled to an instruction on sim-
ple possession. Finding no reversible error, we affirm.

Police suspected Brown of selling marijuana from his residence. As
they arrived at the residence to execute a search warrant, officers
observed Brown standing on the front stoop of the residence. When
Brown saw the officers, he leaned back into the residence and then
came back out. Officers immediately detained Brown and asked him
if there were any weapons inside. Brown replied that there was a rifle
belonging to his brother in the residence. Officers apprehended three
other persons in the house, including Brown's brother, and seized a
small quantity of marijuana in the living room and a set of scales in
the kitchen. Police found utility bills, a lease agreement for the resi-
dence, a credit card, and various other letters and papers, all in
Brown's name, in a bedroom. Also seized from the bedroom were a
photograph of Brown, a Chinese assault rifle standing in plain view
in a corner, cash, a set of scales, and over 300 grams of marijuana.
Brown admitted to the officers that there was marijuana in the house.2
Prior to trial, Brown made a motion to suppress his statement to
police concerning the rifle.

We review the district court's ultimate suppression decision de
novo, but the underlying factual decisions are reviewed for clear error.
See United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). We
find that the district court properly denied Brown's motion. One of
the officers testified that he questioned Brown regarding weapons
_________________________________________________________________
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 Brown alleges on appeal that this admission only applied to the mari-
juana found in the living room. However, no evidence supporting this
conclusory allegation was presented at trial.

                     2
based on Brown's prior criminal history involving violence and the
use of a firearm, the fact that the officers were executing a search
warrant in a drug case, and Brown's actions when he spotted the
police in front of the house. We find that under the circumstances, it
was objectively reasonable for the officer to be concerned about his
safety and the safety of others when he asked Brown whether there
were any weapons in the house.3

We must uphold Brown's convictions if, taking the evidence and
all reasonable inferences that can be drawn from the evidence in the
light most favorable to the Government, a reasonable jury could have
found Brown guilty.4 Moreover, circumstantial evidence may support
a guilty verdict "even though it does not exclude every reasonable
hypothesis consistent with innocence." See United States v. Jackson,
863 F.2d 1168, 1173 (4th Cir. 1989). In the present case, we find that
the evidence was sufficient to support Brown's convictions.

As a threshold matter, we find that there was ample evidence from
which the jury could reasonably determine that Brown occupied the
bedroom where the rifle and most of the marijuana were found. Since
the rifle was in plain view, the jury could infer that he had knowledge
of and access to the weapon, even without his statement to the police.5
We further find that there was sufficient evidence from which the jury
could infer that Brown possessed marijuana with the intent to distrib-
ute. Although the amount of marijuana found in the living room of the
residence was consistent with personal use, police found over 300
grams of marijuana in Brown's bedroom, some of which was in indi-
vidual plastic baggies. In addition, there was testimony that Brown
was suspected of selling marijuana, and the large amount of cash
_________________________________________________________________
3 See New York v. Quarles, 467 U.S. 649, 655-59 (1984) (recognizing
a "public safety exception" to the general rule requiring a Miranda warn-
ing before questioning a suspect).

4 See Glasser v. United States, 315 U.S. 60, 80 (1942).
5 See United States v. Fields, 72 F.3d 1200, 1212 (5th Cir.), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3231, 65 U.S.L.W. 3256 (U.S. Oct.
7, 1996) (No. 95-1639) (showing a plausible inference that a defendant
had knowledge of and access to a weapon is sufficient to establish con-
structive possession).

                    3
found in a jacket in the bedroom closet and the sets of scales suggest
drug activity.

Finally, Brown alleges that he was entitled to an instruction on the
lesser-included offense of simple possession of marijuana because the
marijuana found in the living room was consistent with personal use
and because he never admitted ownership of the other marijuana
found in the house. We disagree. In United States v. Wright, 131 F.3d
1111, 1112 (4th Cir. 1997), cert. denied, ___ U.S. ___, 66 U.S.L.W.
3782 (U.S. June 8, 1998) (No. 97-9034), we held that"[a] defendant
is not entitled to a lesser-included offense instruction as a matter of
course." To receive such an instruction, "the proof of the element that
differentiates the two offenses must be sufficiently in dispute that the
jury could rationally find the defendant guilty of the lesser offense but
not guilty of the greater offense." Id. (citation omitted). For the ele-
ment to be "sufficiently in dispute," Brown must show that the testi-
mony on the distinguishing element was sharply conflicting, or that
the conclusion as to the lesser offense was fairly inferable from the
evidence presented. Id. We find that Brown failed to satisfy either of
these conditions.

The distinguishing element here was Brown's intent in possessing
the marijuana (i.e., for personal use or distribution). However, as in
Wright, Brown failed to present any conflicting evidence or any evi-
dence from which the jury could infer that his intent was to possess
the marijuana for personal use. Although defense counsel elicited an
admission that the marijuana found in the living room was consistent
with personal use, Brown presented no evidence that this was in fact
its intended purpose. No one testified that Brown was a marijuana
user. Moreover, Brown's position completely ignores the large
amount of marijuana found in his bedroom. Brown presented no evi-
dence from which the jury could infer that the marijuana belonged to
someone else or that there was no intent to resell it. Since Brown
failed to place the distinguishing element sufficiently in dispute, he
was not entitled to a lesser-included offense instruction.

We therefore affirm Brown's convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument

                     4
would not aid the decisional process.

AFFIRMED

                    5
