     Case: 11-40647     Document: 00511767153         Page: 1     Date Filed: 02/24/2012




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

                                                                            FILED
                                                                         February 24, 2012
                                     No. 11-40647
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LORI BENSON KIRKMAN, also known as Sealed2,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CR-84-2


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Lori Benson Kirkman appeals her convictions for
conspiring to transport stolen goods in interstate commerce, see 18 U.S.C. § 371,
and for transporting stolen property in interstate commerce knowing that it had
been stolen. See 18 U.S.C. § 2314). We affirm.
        Kirkman’s sole claim on appeal is that there was insufficient evidence to
convict her. The only legal authorities, other than the statutes of conviction,
cited in the brief filed on Kirkman’s behalf are two cases holding that an

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40647

appellate court must review the evidence in the light most favorable to the
verdict.   The bulk of the brief consists of defense counsel’s conclusional
assertions and spin on the testimony.        There is no discussion of matters
ordinarily considered in sufficiency cases involving co-conspirator testimony,
including the standard of review, the elements of the offenses, the evidentiary
principles governing such testimony, and the law governing evidentiary
sufficiency generally.
      Given the uncontradicted evidence of her guilt, the standard of review may
be pretermitted, as Kirkman cannot prevail under any standard. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).          Additionally, the
elements of the offenses may be pretermitted, as Kirkman does not contend that
the government failed to prove any of them. See id.
      Kirkman notes that no independent witness saw her with the stolen
property—coins valued at about $152,000—and that the only evidence that the
coins were stolen came from codefendants. She also states that the only proof
of her guilt is the testimony of two co-conspirators who were indicted with her.
To the extent that Kirkman may be understood to contend that her
codefendants’ testimony should not have been admitted and was not enough to
convict her, she is mistaken. Unless it is factually insubstantial or incredible,
which Kirkman does not claim to be the case, uncorroborated testimony from
even one of her co-conspirator was sufficient evidence to convict her. See United
States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997); see also United States
v. Acosta, 763 F.2d 671, 680 (5th Cir. 1985).
      The uncontradicted—and unobjected to—testimony of Kirkman’s
codefendants was that Kirkman removed the coins from the victim’s residence
and shared in the proceeds of their sale, knowing that the victim had consented
to neither the removal nor the sale.          Kirkman nevertheless maintains
conclusionally that the totality of the evidence, both physical and testimonial,
was just as likely to prove her innocence as it was to prove her guilt; she cites no

                                         2
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                                  No. 11-40647

law in support of this proposition.      To the extent that Kirkman may be
understood to imply that we should “substitute [our] decision for that of the jury”
and thus undermine “[t]he sanctity of the jury function,” she is wrong, our
obligation being to review the “evidence to determine if there exists any
reasonable theory from which the jury might have concluded that [Kirkman] was
guilty.” United States v. McClamory, 441 F.2d 130, 136 (5th Cir. 1971). Indeed,
there is such a reasonable theory for concluding that Kirkman is guilty: She
knew where the coins were kept, removed them, helped to sell them, and kept
part of the proceeds without any accounting to their owner.
      AFFIRMED.




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