UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4244

MARILOU F. HULING,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-95-78)

Submitted: October 28, 1997

Decided: January 26, 1998

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Andrew M. Sacks, SACKS & SACKS, Norfolk, Virginia, for Appel-
lant. Helen F. Fahey, United States Attorney, Robert F. Porcarelli,
Special Assistant United States Attorney, Norfolk, Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Marilou Huling appeals her conviction and sentence of four days
incarceration and a $250 fine for theft of government property.1 Hul-
ing contends the prosecution failed to present sufficient evidence of
an intent to steal to sustain her conviction. Because Huling's appeal
is meritless, we affirm.

In December 1994 Huling was observed by closed-circuit televi-
sion in the check-out line at the Navy Exchange (the Exchange) in
Norfolk, Virginia. Huling bought several items and paid by check in
the amount of $146.16. In addition, Huling's co-defendant, a cashier
at the Exchange, marked "sold" on a "My Size Barbie" doll, a Teddy
Ruxpin doll, and a Lladro porcelain figurine, and Huling removed the
items from the store. The total value of the unpurchased items was
$578.99. After Huling left the Exchange, investigators questioned the
co-defendant cashier concerning the observed discrepancies. Later
that night, Huling phoned the Exchange claiming that she had discov-
ered the unpaid items and she arranged to return the items the next
morning.

When Huling returned the items to the Exchange she was arrested
and charged with theft of government property. Huling was tried and
convicted by a magistrate judge. Huling received a sentence of four
consecutive days incarceration and a $250 fine. Huling appealed her
conviction and sentence to the district court. Finding the evidence suf-
ficient to sustain her conviction, the district court affirmed Huling's
conviction and sentence. Huling appeals to this court claiming that the
evidence was insufficient to convict her beyond a reasonable doubt.

However, the relevant question is not whether we are convinced of
her guilt beyond a reasonable doubt, but rather whether, viewing the
evidence in the light most favorable to the government, any rational
trier of fact could have found the essential elements of the charged
offense beyond a reasonable doubt.2 We must consider all circumstan-
_________________________________________________________________
1 18 U.S.C. § 641 (1994).
2 See United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993).

                    2
tial as well as direct evidence, and allow the government the benefit
of all reasonable inferences from the facts proven to those sought to
be established.3

Huling maintains that the Government's case against her was
flawed because the Government failed to establish the element of spe-
cific intent. According to Huling, the Government's evidence was
insufficient because it did not foreclose her argument that she
acquired the items through mistake or inadvertence, and not a wilful
criminal act. The Government's burden, however, was not to disprove
Huling's defense. Rather the Government's obligation was to place
enough evidence before the fact finder to prove beyond a reasonable
doubt that Huling stole, purloined, or converted government property.

The Government presented enough direct and circumstantial evi-
dence showing that Huling stole, purloined, or converted government
property. It showed that Huling: (1) knew her co-defendant; (2)
brought items that she did not plan on purchasing to the check-out
aisle; (3) returned items to her shopping cart that were marked "sold,"
but she had not purchased; (4) had noticed that the value of the items
in her shopping cart were greater than the amount she paid; (5) took
the unpurchased items out of the Exchange and placed them in her car
and drove home; and (6) did not contact the Exchange to return the
items until after her co-defendant was questioned regarding the theft.
Additionally, the magistrate judge found Huling's explanation that
her possession of the items was due to a mistake or her negligence
constituted perjury. Given the foregoing evidence, we hold that any
rational trier of fact could have found the essential elements of theft
of government property beyond a reasonable doubt.

Accordingly, we affirm Huling's conviction and sentence for theft
of government property. 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
_________________________________________________________________
3 See United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

                    3
