           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 23, 2009

                                     No. 08-61007                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

STEVEN ALLEN ADAMS

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:07-CR-132-1


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury convicted Steven Allen Adams of possession of child pornography
in violation of 18 U.S.C. § 2252(a)(4)(B). Adams now appeals that conviction,
arguing that the evidence was insufficient to support the jury’s verdict and that
the district court erred by denying Adams’s proposed jury instructions. We
AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                              I. BACKGROUND
      Adams befriended fellow inmates Donald Poston and Tobie Krohe while
serving a sentence for a previous conviction. After Adams’s release, he rented
a room in Poston’s house and bought a computer from Poston’s wife. Adams kept
the computer in his room in the Postons’ house, which did not have a lock on the
door. Adams and Krohe also remained friends. After Krohe’s release from
prison, he began to visit Adams. Eventually Krohe, who was under indictment
for possession of child pornography, approached the FBI regarding Adams.
Krohe told the FBI that Adams possessed child pornography.           After some
investigation, the FBI obtained a search warrant for Adams’s room.
      Found were three separate collections of child pornography. There were
approximately 194 images in all.     The FBI obtained images from Adams’s
computer and found printed images in an envelope in a drawer. There also were
images on compact discs in a box under his bed. At least one of the printed
images matched an image on Adams’s computer. Adams’s theory at trial was
that Krohe planted the images on his computer and in his drawer. Krohe’s
purpose allegedly was to implicate Adams in exchange for favorable treatment
in Krohe’s criminal proceeding.
      Adams testified that Krohe often visited him. One night, Adams woke up
to find Krohe using his computer. On the other hand, a government agent
testified that the images on Adams’s computer were created or modified at
different times, indicating that Krohe during one night could not have placed all
the images on the computer. Krohe also testified that Adams asked him to
obtain images containing child pornography, and that Adams asked him to
arrange for a young boy to visit Adams. Finally, Krohe testified that he and
Adams viewed child pornography together and that he found the folder
containing child pornography in Adams’s drawer.



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      There were a number of troubling aspects of Krohe’s testimony that raised
doubts about his credibility. For example, he testified Adams had a previous
offense of child molestation, but Adams did not. Krohe also alleged that he could
not have downloaded pornography onto Adams’s computer because the computer
made a loud noise when anyone other than Adams touched it. There was
nothing to support that tale.      Krohe also did not seem forthcoming about
consideration he might hope to receive from the government for his testimony.
He claimed his motivation for testifying was to protect the public, though he was
also convicted of possessing child pornography during the time that Adams
possessed it. Krohe also sent a letter to the FBI agent assigned to Adams’s case,
assuring the agent that he would be an effective witness.
      The final basis for Adams’s conviction was a number of images found on
five compact discs located under his bed. Adams alleged that these images were
placed on the discs by his brother. Adams did not even know they existed. His
explanation for possessing the discs was that his brother had been sent to prison.
Adams brought his brother’s van to Mississippi. Due to physical disabilities,
Adams was unable to unload the van. Poston’s son unloaded the contents and
put them in Poston’s shed. Later, Poston asked Adams to get the items out of
the shed. Adams again asked Poston’s son for help, instructing him to keep
anything that looked important and throw away the rest.           The five discs
containing child pornography had handwritten labels indicating they might be
important. Adams argues that this explains why Poston’s son kept the discs.
Everything retained from his brother’s van, including the discs, was put into a
bin under Adams’s bed.      The FBI did not analyze the discs for Adams’s
fingerprints. Adams’s brother died before trial and was unable to provide any
information regarding the discs.
      The jury found Adams guilty of one count of possession of child
pornography and not guilty of receipt of child pornography over the Internet.

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The key pieces of evidence used to convict Adams were Krohe’s testimony and
the images on the compact discs. Other witnesses, including Poston, testified
that they knew of no improper conduct between Adams and any children or any
other examples of Adams engaging in illegal activity. Adams was sentenced to
the statutory minimum of ten years in prison.
                                    II. DISCUSSION
       Adams preserved his challenge to the sufficiency of the evidence by filing
a motion for judgment of acquittal. We review de novo a denial of that motion.
United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007). The evidence is
sufficient to support the conviction if, when viewing the evidence and any valid
inferences from the perspective favorable to the verdict, “a rational juror could
have found defendants guilty beyond a reasonable doubt.” United States v.
Anderson, 174 F.3d 515, 522 (5th Cir. 1999).                The jury makes credibility
determinations and can find guilt even when some “reasonable hypothesis of
innocence” could be said to exist. Mitchell, 484 F.3d at 768.
       Adams argues the evidence was insufficient because Krohe’s testimony
was not credible and Adams did not know about the discs found under his bed.1
Accepting or rejecting Krohe’s testimony and Adams’s explanations are matters
for the evaluation of the jurors. United States v. Millsaps, 157 F.3d 989, 994 (5th
Cir. 1998). It is the jury’s unique role to judge the credibility of witnesses,
evaluate witnesses’ demeanor, resolve conflicts in testimony, and weigh evidence
in drawing inferences from the facts. Id.




       1
         Adams also originally argued that there was insufficient evidence to support his
conviction because the government did not offer expert testimony establishing the age of the
models in the pornography or offer evidence establishing that the models in the pornography
were real people as opposed to virtual images. However, after the government pointed out
that Adams’s trial counsel agreed to the stipulation that 194 images of child pornography were
found by investigators, Adams withdrew these two arguments in his reply brief.

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      Krohe was not an ideal witness for the government, but it was for the jury
to weigh his credibility and the value of his testimony. The jury heard Adams’s
lawyer cross-examine Krohe and Adams’s contradiction of Krohe’s story. Still,
it found Adams to be guilty. We find nothing unreasonable about that.
      Adams also contends that the district court erred by refusing his proposed
jury instructions. We review the district court’s refusal to give a requested jury
instruction for abuse of discretion. United States v. Skelton, 514 F.3d 433, 438
(5th Cir. 2008). Refusing a proposed jury instruction constitutes error “only if
the instruction (1) was substantially correct, (2) was not substantially covered
in the charge delivered to the jury, and (3) concerned an important issue so that
the failure to give it seriously impaired the defendant’s ability to present a given
defense.” United States v. Pennington, 20 F.3d 593, 600 (5th Cir. 1994).
      Adams requested this instruction: “If the thing is not clearly visible or
readily accessible, control over the thing alone is insufficient to prove knowledge
of the thing. The threshold issue is whether the thing is hidden. If the thing is
hidden, then the government must produce further evidence of knowledge.” He
argues that this instruction was proper based on our decision in Pennington.
That precedent involved two inexperienced truck drivers from another state who
picked up a load in Texas. Id. at 596. They did not watch the complete loading
of the truck, and they kept the truck’s trailer door unlocked overnight. Id. The
next day the truck was inspected. Though only pallets of tile were initially
observed to be in the truck, it was eventually established that the truck also
contained boxes of marijuana. Id.
      Quite differently, Adams’s computer may have contained thousands of
files, but the child pornography images were unencrypted and located in
Adams’s “My Documents” folder, easily and quickly accessed. The files also were
created over a period of years. The fact that a computer contains a large number
of files does not mean that readily accessible files should be considered hidden.

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Additionally, the envelope containing printed images was located in a clear
plastic storage bin. The district court did not abuse its discretion in refusing the
jury instruction regarding hidden items.
      The district court’s judgment is AFFIRMED.




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