           Case: 14-14145   Date Filed: 06/24/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14145
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:13-cr-00100-TJC-JRK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JOHN EDWIN CORN, JR.,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (June 24, 2015)

Before MARCUS, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant John Edwin Corn, Jr. (“Defendant”) was convicted, following a

jury trial, of two counts of attempted Hobbs Act robbery, one count of Hobbs Act

robbery, and one count of brandishing a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. §§ 1951(a) and 924(c)(1)(A)(ii), respectively.

On appeal, Defendant challenges only his § 924(c) conviction for brandishing a

firearm. He contends that the prosecution (“the Government”) presented

insufficient evidence to prove beyond a reasonable doubt that he had brandished a

firearm that fit the applicable statutory definition. After careful review, we affirm

Defendant’s conviction.

                                  I. Background

      As relevant to this appeal, Defendant was indicted for one count of

brandishing a fireman in furtherance of his October 13, 2012, attempted robbery of

a Publix grocery store. Defendant pled not guilty and proceeded to a jury trial.

      At trial, the Government presented the testimony of Publix assistant store

manager, Vanessa Giles. Giles testified that, during the attempted robbery,

Defendant told her that he had a gun and ordered her to give him money. Giles did

not see a gun at that time. While walking to the cash registers, Giles picked up a

bottle of wine and swung it at Defendant, yelling at him to get out of the store.

Defendant responded by pulling out a gun and pointing it at Giles. She then swung

the bottle at Defendant a second time, and he fled the store.


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      In her testimony, Giles described Defendant’s gun as a small black handgun

that “looked like a regular magnum.” She further testified that the gun was a

semiautomatic pistol like the one her brother, who was in the military, had shown

her. While she only saw Defendant’s gun briefly, she believed that it was real.

      The Government also introduced video footage taken from the store’s

surveillance cameras. Giles explained that the recording did not show Defendant

with the gun because, when Defendant backed away from her, he entered a “dead

space” where the surveillance cameras did not capture what was happening. The

gun was never recovered and was not introduced into evidence at Defendant’s trial.

      Defendant moved for a judgment of acquittal under Federal Rule of Criminal

Procedure 29 at the close of the Government’s case, arguing that the Government

had failed to produce sufficient evidence from which a reasonable jury could

conclude beyond a reasonable doubt that he had possessed an actual firearm. The

district court reserved ruling on this motion until after the jury returned a verdict.

Defendant renewed his motion before the case was submitted to the jury, and the

court again reserved its ruling until after the jury returned a verdict. After the jury

found Defendant guilty, the district court denied Defendant’s motion for judgment

of acquittal.




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                                    II. Discussion

      On appeal, Defendant argues that Giles’s testimony was insufficient, by

itself, to convict him of brandishing a “real” firearm during the attempted robbery.

We review de novo whether the evidence was sufficient to sustain a conviction,

viewing the evidence in the light most favorable to the Government and drawing

all reasonable inferences in favor of the jury’s verdict. United States v. Woodruff,

296 F.3d 1041, 1045 (11th Cir. 2002).

      To establish the crime of brandishing a firearm during the commission of a

crime, the Government must show that a defendant (1) carried or used a firearm (2)

during and in relation to the commission of a crime of violence. 18 U.S.C.

§ 924(c)(1)(A). A firearm within the meaning of the statute is any weapon “which

will or is designed to or may readily be converted to expel a projectile by the

action of an explosive.” Id. § 921(a)(3)(A). However, the Government need not

“show to a scientific certainty that a defendant is carrying a device that fires

projectiles by means of an explosive.” United States v. Hunt, 187 F.3d 1269, 1271

(11th Cir. 1999). The Government does not have to offer the gun itself into

evidence or produce an expert witness to identify the gun as a “firearm.” Id.

Rather, “a § 924(c) conviction may be sustained by lay witness testimony that a

defendant carried or used a gun.” Id.




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       Here, in light of Giles’s testimony, the record contains sufficient evidence to

support the jury’s guilty verdict on the count charging brandishing of a firearm.

Specifically, Giles testified that Defendant told her he had a gun and he later

pointed it at her. She provided a description of Defendant’s firearm, noting that it

was a small black handgun about the size of Defendant’s hand. She further

testified that she had experience with a similar firearm, and she believed that

Defendant’s firearm was real. From this evidence, the jury could draw a

reasonable inference that Defendant brandished a firearm and that it was a real

gun, as required by § 921(a)(3)(A). See id. Accordingly, the district court did not

err in denying the motion for judgment of acquittal, and we affirm Defendant’s

conviction.1

       AFFIRMED.




       1
         On appeal, Defendant also suggests that the jury may have been confused as to whether
the gun needed to be a “real” firearm in order to convict him for brandishing a firearm.
However, Defendant does not challenge the district court’s jury instruction as to this issue, and
we presume that the jury followed the instructions they were given. See United States v. Lopez,
649 F.3d 1222, 1237 (11th Cir. 2011).
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