     Case: 14-30385      Document: 00512955527         Page: 1    Date Filed: 03/03/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30385
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 3, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GARY JEFFERSON BYRD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:12-CR-274-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Gary Jefferson Byrd was found guilty of one count
of possessing child pornography and one count of receiving child pornography.
He was sentenced to serve 180 months in prison and a ten-year term of
supervised release.      Now, he argues that the evidence does not suffice to
support his conviction because the items found in his possession do not
constitute child pornography. In the alternative, he argues that he did not


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 14-30385

knowingly possess child pornography because he believed that the materials
that led to his conviction did not qualify as such. The Government argues that
his knowledge argument is reviewed only for a manifest miscarriage of justice
because he did not preserve it. Byrd responds that the issue was properly
preserved and, if it was not, then counsel rendered ineffective assistance.
         Typically, we conduct a “de novo [review of] the district court’s denial of
a properly preserved motion for judgment of acquittal.” United States v. Fuchs,
467 F.3d 889, 904 (5th Cir. 2006). A challenge to the sufficiency of the evidence
is conducted by analyzing “all evidence in the light most favorable to the
verdict to determine whether a rational trier of fact could have found that the
evidence established the essential elements of the offense beyond a reasonable
doubt.” United States v. Harris, 740 F.3d 956, 962 (5th Cir.) (internal quotation
marks and citation omitted), cert. denied, 135 S. Ct. 54 (2014).           When a
challenge to the sufficiency of the evidence has not been preserved with a
motion for judgment of acquittal, we review only for a manifest miscarriage of
justice. United States v. Delgado, 672 F.3d 320, 330-32 (5th Cir. 2012) (en
banc).
      We review both the direct and circumstantial evidence, as well as all
reasonable inferences, in the light most favorable to the jury’s verdict. United
States v. Rose, 587 F.3d 695, 702 (5th Cir. 2009). In determining whether there
is sufficient evidence to support a verdict, “this court asks only whether the
jury’s decision was rational, not whether it was correct.” United States v.
Rodriguez, 553 F.3d 380, 389 (5th Cir. 2008). Thus, we accept “all credibility
choices and reasonable inferences made by the trier of fact which tend to
support the verdict.” United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th
Cir. 2011) (internal quotation marks and citation omitted).




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                                       No. 14-30385

      “The evidence need not exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of guilt, and the
jury is free to choose among reasonable constructions of the evidence.” Fuchs,
467 F.3d at 904 (internal quotation marks and citation omitted). “Juries are
free to use their common sense and apply common knowledge, observation, and
experience gained in the ordinary affairs of life when giving effect to the
inferences that may reasonably be drawn from the evidence.” United States v.
Flores-Chapa, 48 F.3d 156, 161 (5th Cir. 1995).
      Our review of the record in light of these principles shows that the
evidence suffices to uphold Byrd’s convictions. Insofar as Byrd argues that the
items underlying his conviction do not amount to child pornography, our
review of the items in light of the Dost 1 factors refutes this assertion and shows
no clear error in connection with the jury’s apparent conclusion that these
items contained a lascivious exhibition of children’s genitalia. See United
States v. Steen, 634 F.3d 822, 826-27 (5th Cir. 2011).
      To the extent that Byrd argues that the evidence did not suffice to show
that he did not knowingly possess child pornography because he believed that
the disputed materials did not qualify as such, this argument gains no traction.
Because this claim is unavailing under both the de novo and manifest
miscarriage of justice standards, we apply the former and decline to decide the
issue whether it should be reviewed under the latter.                    Because Byrd’s
ineffective assistance claim comes into play only if the manifest miscarriage of
justice standard is applied, it will not be considered.
      While the jury did hear Byrd’s explanation of why he thought the items
at issue were not child pornography, they were not obligated to believe it. See
Moreno-Gonzalez, 662 F.3d at 372.                  The jury’s decision to reject this


      1   United States v. Dost, 636 F. Supp. 828, 832 (S.D.Cal.1986).


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                                No. 14-30385

explanation was rational, and we will not overturn its verdict. See Rodriguez,
553 F.3d at 389. The judgment of the district court is AFFIRMED.




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