                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4566


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTONIO LIVINGSTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00024-D-1)


Submitted:   May 14, 2014                     Decided:   May 21, 2014


Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Antonio Damonte Livingston appeals from his conviction

on two counts of being a felon in possession of a firearm and

ammunition in violation of 18 U.S.C. § 922(g)(1) (2012).                                          On

appeal, Livingston contests the district court’s denial of his

motion    for       judgment            of   acquittal         on       count   one:     unlawful

possession,         as    a       convicted     felon,         of   a    Hi-Point       9mm   semi-

automatic handgun and ammunition on January 27, 2011.                                     He also

asserts that the district court abused its discretion in using a

special verdict form.                   Finding no error, we affirm.

              Livingston first contends that his conviction on count

one was not supported by the evidence.                               We review de novo the

denial   of     a    Fed.         R.    Crim.   P.       29   motion.        United     States    v.

Gillion, 704 F.3d 284, 294 (4th Cir. 2012), cert. denied, 133 S.

Ct. 2039 (2013).                  “[T]he jury verdict must be upheld if there

exists substantial evidence [ ] to support the verdict, viewing

the    evidence      in       a    light     most        favorable      to   the    government.”

United States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001); see

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

“Substantial evidence is evidence that a reasonable finder of

fact    could       accept         as    adequate        and    sufficient         to   support   a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

Gillion, 704 F.3d at 294 (citing United States v. Palacios, 677

F.3d 234, 248 (4th Cir.), cert. denied, 133 S. Ct. 124 (2012)).

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This court will reverse on the basis of insufficient evidence

only    in    “cases          where        the    prosecution’s            failure         is   clear.”

United    States v.           Burgos,        94    F.3d       849,       862    (4th       Cir.      1996)

(internal quotations omitted).

              To        support        a     conviction           for      being       a    felon      in

possession of a firearm under § 922(g)(1), the government must

prove the following elements: “(1) the defendant previously had

been    convicted            of   a    [felony];         (2)       the     defendant         knowingly

possessed . . . the firearm; and (3) the possession was in or

affecting      commerce,              because      the        firearm          had     travelled       in

interstate         or     foreign          commerce          at    some        point       during     its

existence.”         United States v. Moye, 454 F.3d 390, 395 (4th Cir.

2006) (en banc).

              Livingston argues that his conviction on count one was

based    on    witness            testimony        and       was     not       supported        by    any

significant        physical,          written,          or   photographic            evidence.          He

does not contest, however, that the Government met its burden

with    respect         to    the     first       and    third       elements.             Rather,     he

contends that the Government did not demonstrate his knowing

possession of the firearm.

              We conclude that, viewing the evidence in the light

most favorable to the Government, the evidence is sufficient for

a reasonable trier of fact to find that Livingston committed the

charged offense.              First, the Government sufficiently proved that

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the firearm was found within Livingston’s reach and in the area

of the vehicle where Livingston was seated.                  The Government also

presented testimony that Livingston possessed ammunition in a

coat he was wearing that matched the ammunition in the gun.

Although Livingston argues that the investigation was lacking,

he did not put on any evidence to dispute the investigatory

findings.        We    therefore    conclude       that    substantial        evidence

supported the verdict.

              Next,    Livingston       contends    that    the    district        court

abused its discretion in using a special verdict form.                        The form

first   asked    the    jury    whether    Livingston       was    guilty     of   each

individual count, citing the elements of the offense as alleged

in the indictment.        Next, the verdict form asked, if in fact the

jury had found Livingston guilty, which items did Livingston

possess in relation to each count.                 The court used the special

verdict   form    after       defense    counsel    objected       that   a    bag    of

ammunition related to count two was not proven to have been

involved in interstate commerce, and therefore the jury could

not convict based on that item alone.

              Livingston asserts that the jury could have inferred

that Livingston was already found guilty of violating § 922(g)

and it was required to determine which items he possessed in

doing   so.      He    also    summarily       states     that    the   wording      was

confusing.      We review the district court’s decision to give a

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jury instruction and to use a special verdict form for abuse of

discretion.      United States v. Passaro, 577 F.3d 207, 221 (4th

Cir. 2009); United States v. Udeozor, 515 F.3d 260, 271 (4th

Cir. 2008).      “Without any evidence to the contrary, [this court]

must assume that the jury followed the instructions given to it

by the court.”      United States v. Hager, 721 F.3d 167, 189 (4th

Cir. 2013), cert. denied, 2014 WL 1659920 (U.S. Apr. 28, 2014).

           The     special        verdict       form    itself     was    clear   and

unambiguous.      Further, the court more than amply instructed the

jury that Livingston was not presumed guilty of any crime and

that it need not find him guilty if the evidence did not support

it.    The jury is presumed to follow the court’s instruction

unless there is evidence otherwise.                See Hager, 721 F.3d at 189.

Applying the applicable standard of review, we must conclude

that the district court did not abuse its discretion by electing

to use the special verdict form in this case.

           We therefore affirm the judgment.                      We dispense with

oral   argument    because        the    facts    and    legal    contentions     are

adequately    presented      in    the    materials      before    this   court   and

argument would not aid the decisional process.

                                                                            AFFIRMED




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