                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2003

USA v. Boyer
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4291




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-4291


                           UNITED STATES OF AMERICA

                                           v.

                                 DEONDRE BOYER,

                                                      Appellant




                      Appeal from the United States District Court
                               for the District of Delaware
                        (D.C. Criminal Action No. 02-cr-00022)
                       District Judge: Honorable Joseph J. Farnan


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 11, 2003

                 Before: ALITO, BARRY and AMBRO, Circuit Judges

                                ( filed October 16, 2003)


                                       OPINION


AM BRO, Circuit Judge

      Deondre Boyer appeals his conviction under 18 U.S.C. § 922(g)(1) as a felon in

possession of a firearm on sufficiency of the evidence grounds. He was convicted after a
two-day jury trial in the United States District Court for the District of Delaware. Post-

trial, Boyer filed a motion for judgment of acquittal pursuant to Rule 29(c) of the Federal

Rules of Criminal Procedure. This motion was denied, and Boyer timely appealed. W e

have jurisdiction pursuant to 28 U.S.C. § 1291.1 For the reasons set forth below, we

affirm the District Court’s denial of Boyer’s acquittal motion.

                                 I. Factual Background

       At approximately 3:00 a.m. on January 24, 2002, residents of Brookmont Farms, a

community in New Castle County, Delaware, called the New Castle County Police and

reported hearing multiple gunshots. One of the callers was Boyer’s next-door neighbor,

Renita Wilson. Shortly after hearing the gunshots, Ms. Wilson called 911 and told the

operator that she could see an African-American male holding a gun in the air and talking

on his cellular phone in Boyer’s front yard. Ms. Wilson also told the 911 operator she

believed the person was Boyer.

       Police officers arrived at Brookmont Farms within minutes of the 911 calls.

Officers searched the area both on foot and in vehicles, but no non-police activity or

individuals were observed. After searching the area, police interviewed Ms. Wilson at

her front door. During the interview, Boyer exited his residence and Ms. Wilson

identified him as the person who had been holding the gun. Boyer was immediately



   1
       Boyer’s brief states that his appeal is pursuant to 18 U.S.C. § 3742. However, this
section applies only to alleged errors in sentencing, a subject matter not at issue in this
case. We thus deem Boyer’s appeal to be under 28 U.S.C. § 1291.

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arrested. A search of his front yard recovered five .45 caliber shell casings. In the back

yard, inside a side panel of a central air-conditioning unit, officers found a .45 caliber

handgun. Ballistic examinations confirmed that the shell casings recovered from Boyer’s

front yard were fired from the gun recovered from his back yard.

       In addition, cellular phone records introduced at trial indicate Boyer made several

calls at the same time Ms. Wilson observed someone in Boyer’s front yard speaking on a

cell phone. Some of those calls were made to a phone number belonging to Preston Lum,

a friend of Boyer’s.

       At trial, however, M s. Wilson testified that she was only “assuming” when she told

the 911 operator and police officers that she thought it was Boyer holding the gun. Ms.

Wilson further testified at trial that, upon further consideration, Boyer “probably” was not

the individual she saw outside with the gun.

                                       II. Discussion

       We have plenary review of a district court’s granting or denying a post-verdict

motion for judgment of acquittal. United States v. Smith, 294 F.3d 473, 477 (3d Cir.

2002). We shall sustain a guilty verdict “if there is substantial evidence, viewed in the

light most favorable to the government, to uphold the jury’s decision . . . . We do not

weigh evidence or determine the credibility of witnesses in making this determination.”

United States v. Beckett, 208 F.3d 140, 151 (3d Cir. 2000) (citations omitted). We

examine the “totality of the evidence, both direct and circumstantial,” and must credit “all



                                               3
available inferences in favor of the government.” United States v. Gambone, 314 F.3d

163, 170 (3d Cir. 2003) (citations omitted). An appellant challenging a criminal

conviction on the sufficiency of the evidence faces a “very heavy burden.” United States

v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996) (quotations omitted). Moreover, whether

this Court would reach the same conclusion as the jury is irrelevant.

       Boyer attacks the sufficiency of the evidence on several grounds. He notes that the

gun was never tested for fingerprints and his clothing or hands were never checked for

gunshot residue. Primarily, though, Boyer relies on the trial testimony of Ms. Wilson. At

trial, she testified that she could not see Boyer’s face because it was dark. She also

testified to the effect that, upon further consideration of the height and clothes of the

person she observed, the person outside holding the gun probably was not Boyer.

       Substantial evidence nonetheless exists to uphold the jury’s verdict. Ballistic

testing matched the gun casings with the gun hidden in the air conditioning unit in

Boyer’s back yard. In addition, Boyer’s back yard is fenced-in. Both of these facts make

it unlikely that someone else fired the shots and planted the gun in Boyer’s back yard.

Cellular phone records also indicate Boyer’s phone was used to make calls around

3:00 a.m. (a fact somewhat unusual in itself) and that several of the calls were made to a

friend of Boyer’s. The individual Ms. Wilson observed in Boyer’s front yard was talking

on a cell phone and waving a gun. The logical inference is that the person she saw was

indeed Boyer. This circumstantial evidence (more so than Ms. Wilson’s later recantation



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at trial) supports her identification of Boyer to the 911 operator and the police officer the

night of the incident.

       The jury had the opportunity to make determinations of credibility and weigh the

evidence in this case. “A jury is free to believe part of a witness’ testimony and disbelieve

another part of it.” United States v. Boone, 279 F.3d 163, 189 (3d Cir. 2002). Jurors

could properly conclude that Ms. Wilson’s initial identifications of Boyer were more

reliable than her later expressions of uncertainty. They could also weigh the presence of

ballistic testings and the cell phone records more heavily than the absence of any

fingerprint or gunshot residue testing. The bottom line is that substantial evidence

supports the jury’s verdict.

                                          *****

       In this context, we affirm the District Court’s denial of Boyer’s acquittal motion.




TO THE CLERK:

       Please file the foregoing Opinion.




                                            By the Court,




                                              /s/ Thomas L. Ambro
                                              Circuit Judge

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