                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              APR 27 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 ELISEO CHEO LOPEZ,

          Petitioner-Appellant,

 v.                                                       No. 99-6319
                                                          (W.D. Okla.)
 MICHAEL GOVITZ, Captain,                             (D.Ct. No. 99-CV-57)
 Mangum Community Work Center,

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Appellant Eliseo Cheo Lopez appeals the district court’s decision denying

his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We granted Mr.

Lopez’s request for a certificate of appealability to reach the merits of his claim, 1

and now exercise our jurisdiction under 28 U.S.C. §§ 1291 and 2253.



       A jury convicted Mr. Lopez of unlawful delivery of one pound of

marijuana, and the trial court sentenced him to thirty-five years in prison. Mr.

Lopez appealed the conviction raising grounds of insufficient evidence to support

the conviction, prosecutorial misconduct, improper cross-examination and

excessive sentence. The Oklahoma Court of Criminal Appeals summarily

affirmed the conviction, holding sufficient evidence supported it, but modified the

sentence to a term of ten years imprisonment based on trial errors involving

prosecutorial misconduct, improper cross-examination, and excessive sentence.



       In his federal habeas petition, Mr. Lopez raised only his insufficient

evidence claim. The federal district court referred Mr. Lopez’s petition to a

magistrate judge who recommended denying the petition based on a finding

sufficient evidence supported the conviction. In reaching this conclusion, the


       1
        In granting the certificate of appealability on the issue of the sufficiency of the
evidence, we also requested the State file a response brief.


                                             -2-
magistrate judge relied on the testimony of an off-duty police officer, Captain

Tim Murphy. According to Captain Murphy, who observed the events leading to

Mr. Lopez’s arrest, Mr. Lopez parked his truck beside a blue car in front of a

convenience store. The driver of the blue car, Mr. Prentise, approached Mr.

Lopez, who remained seated in his truck. After a brief conversation, which

Captain Murphy could not hear, Mr. Lopez exited his vehicle and again briefly

spoke with Mr. Prentise. Mr. Lopez next reached into his truck, removed a

yellow cigar box, opened the rear passenger-side door of Mr. Prentise’s car, and

set the box inside. Mr. Lopez then got in his truck and again briefly spoke with

Mr. Prentise. Captain Murphy then observed Mr. Prentise hand Mr. Lopez

something before Mr. Lopez drove away without ever entering the convenience

store to make a purchase. Shortly thereafter, an individual exited the store and

got into Mr. Prentise’s front passenger seat. Mr. Prentise then drove out of the

parking lot. Captain Murphy radioed the police department with his observations

and followed Mr. Prentise for a short distance before an on-duty policeman,

Officer Randy Howland, took over following the vehicle.



      The magistrate judge next recounted the testimony of Officer Howland,

who stated he followed Mr. Prentise for several blocks and never saw Mr.

Prentise or his passenter reach into the back seat. After stopping the vehicle and


                                         -3-
receiving permission to search it, Officer Howland discovered the cigar box in the

“cargo net” behind the front passenger seat. The box contained a bag filled with

marijuana. Mr. Lopez’s fingerprint was discovered on the cigar box.



      The magistrate judge also briefly discussed Mr. Prentise’s testimony that

Mr. Lopez gave him an empty cigar box, and Mr. Prentise placed the marijuana in

the box after he drove away from the store. However, the magistrate judge noted

the sum of Mr. Prentise’s testimony conflicted with his own previous statements 2

as well as Captain Murphy’s testimony. Based on Mr. Prentice’s and Mr. Lopez’s

movements, the magistrate judge determined the jury could reasonably conclude

Mr. Lopez transferred marijuana to Mr. Prentise, and therefore, sufficient

evidence existed to find him guilty. After reviewing Mr. Lopez’s objections

thereto, the district court adopted the Report and Recommendation in its entirety

and denied the petition, noting that even if it disregarded the inconsistencies in

the testimony, sufficient evidence supported the conviction.



      On appeal, Mr. Lopez raises the same insufficient evidence claim, pointing


      2
         Immediately after his arrest, Mr. Prentise told the police he did not know Mr.
Lopez, but admitted at trial he did know him. When asked why he initially lied, Mr.
Prentise stated he was scared because he possessed the marijuana. However, Mr. Prentise
always maintained Mr. Lopez had nothing to do with the marijuana.


                                          -4-
to seemingly exculpatory evidence. In support, he first relies on portions of Mr.

Prentise’s testimony. Mr. Prentise testified he approached Mr. Lopez and asked

him for a sack or container. After Mr. Lopez stated he did not have a container,

Mr. Prentise noticed the cigar box in Mr. Lopez’s truck and asked for it instead.

Mr. Lopez obliged and threw the cigar box on Mr. Prentise’s back seat. Mr.

Prentise also testified he received peanut brittle from Mr. Lopez and handed back

the uneaten portion to Mr. Lopez, which purportedly explains the “exchange”

Captain Murphy witnessed at the conclusion of their conversation. Mr. Prentise

then testified he left the store and at the first stop sign, reached back, grabbed the

box, and placed his bag of marijuana in the box. When the box would not fit

under the driver’s seat, Mr. Prentise stated he put the box into the “cargo net”

behind the passenger seat.



       In addition to Mr. Prentise’s testimony, Mr. Lopez points to his own

inculpatory testimony at trial providing seemingly innocent explanations for his

conduct. For instance, he states he eventually left the store without making a

purchase because he had stopped to buy gas, and on exiting the vehicle to pre-pay

for the gas he realized he forgot his wallet. 3 Mr. Lopez also testified he


       3
         Mr. Lopez testified he played football with his seven-year-old son earlier in the
day and at that time, took the wallet and change out of the pocket on his sweat pants
because it lacked a zipper.

                                            -5-
recognized Mr. Prentise, conversed with him, and gave him the empty cigar box

when he asked for it. Mr. Lopez next points out Captain Murphy testified he did

not hear their conversations, saw Mr. Prentise eating candy (which explains the

“exchange”), and did not see anything protruding from the cigar box when Mr.

Lopez set it in Mr. Prentise’s car. Mr. Lopez also notes Officer Howland testified

he started surveillance of Mr. Prentise’s vehicle from a distance of at least two or

two and one half blocks away, and admitted it was difficult to see what actions

the passenger took in the vehicle. Finally, Mr. Lopez points out the state did not

present any evidence concerning fingerprints on the marijuana bag.



      In order for us to proceed to the merits of his appeal, Mr. Lopez must make

a substantial showing of the denial of a constitutional right. See 28 U.S.C. §2253.

In an attempt to do so, Mr. Lopez sought a certificate of appealability, contending

insufficient evidence supported his conviction. In an earlier order, we determined

Mr. Lopez sufficiently raised a claim of a denial of due process under the

Fourteenth Amendment, which guarantees no person shall suffer a criminal

conviction except on sufficient proof. See Jackson v. Virginia, 443 U.S. 307, 316

(1979). Because we determined Mr. Lopez made the necessary showing to

warrant our granting him a certificate of appealability, we now review the merits

of his appeal.


                                         -6-
      We begin with our standard of review. Mr. Lopez’s sufficiency of the

evidence claim presents a mixed question of fact and law which we review de

novo. See Maes v. Thomas, 46 F.3d 979, 988 (10th Cir.), cert. denied, 514 U.S.

1115 (1995). However, in this instance our review is sharply limited. Messer v.

Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996). We must ask “‘whether, after

reviewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319); see also Carolina v.

State, 839 P.2d 663, 664 (Okla. Crim. App. 1992). Under this standard, we may

not weigh conflicting evidence nor consider the credibility of witnesses. See

Messer, 74 F.3d at 1013. Instead, we must accept the jury’s resolution of the

evidence as long as it is within the bounds of reason. Id.

      We may not grant habeas relief unless the state court’s decision was:
      “(1) ... contrary to, or involved an unreasonable application of,
      clearly established federal law ...; or (2) resulted in a decision based
      on an unreasonable determination of the facts in light of the evidence
      that was presented in the state court proceeding.”

Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999) (quoting 28 U.S.C.

§ 2254(d)(1), (2)), cert. denied, 120 S. Ct. 944 (2000).



      Under our standard of review, we look to Oklahoma law to determine the

substantive elements of the crime and proof required. See Jackson, 443 U.S. at


                                         -7-
324 n.16. The jury convicted Mr. Lopez of unlawful delivery of marijuana in

violation of Okla. Stat. tit. 63, § 2-401 (1991). In order to sustain a conviction

under this statute, Oklahoma law requires the State to prove the knowing and

intentional possession of the controlled substance. Carolina, 839 P.2d at 664-65.

“Circumstantial proof of knowing and intentional possession requires that guilt be

determined through a series of inferences.” Id. at 665. Because Mr. Lopez did

not have exclusive access, use, or possession of the car where the drugs were

found, constructive possession may be proven if additional independent factors

exist which show his knowledge and control of the drugs. Id. “Such independent

factors may include incriminating conduct by the accused or other circumstances

from which possession may be fairly inferred.” Id.



      Keeping these rigorous standards in mind, we have conducted a de novo

review of the record, including the transcript of Mr. Lopez’s trial. The jury

obviously credited the testimony of Captain Murphy and Officer Howland and

discredited the testimony of Mr. Lopez and Mr. Prentise. In so doing, the jury

apparently resolved any conflicting evidence in favor of the prosecution. Relying

solely on the evidence presented by the prosecution and fully crediting the

testimony of Captain Murphy, Officer Howland, and the prosecution’s other

witnesses, we find sufficient evidence to support the verdict.


                                          -8-
      We begin by viewing the evidence in the light most favorable to the

prosecution. First, certain inferences arise from Mr. Prentise and Mr. Lopez

parking beside each other and talking, Mr. Lopez transferring the cigar box, Mr.

Prentise handing Mr. Lopez “something,” and both individuals driving away

following this alleged exchange. While these inferences alone might seem like

innocent activity, together with other circumstantial evidence they tend to show

Mr. Lopez’s knowledge and possession of the marijuana at issue. The most

compelling circumstantial evidence stems from the marijuana being found in the

very cigar box Mr. Lopez set in the back seat area of Mr. Prentise’s car. While

admittedly Mr. Lopez did not have exclusive possession of either the car or box

during a short intervening period, both Captain Murphy and Officer Howland

testified they did not see either Mr. Prentise or his passenger reach into the back

seat of the vehicle. Because police found the cigar box in the back seat cargo net

and they did not see anyone in Mr. Prentise’s vehicle reach back and handle it,

this evidence is indeed inculpatory because Mr. Lopez was last seen placing the

cigar box in the back seat area. In relying on this evidence, the jury apparently

discounted Officer Howland’s testimony he was just under two city blocks away

when he saw the vehicle come to its first stop, and could not completely monitor

the passenger’s activities in the car. Keeping our standard of review in mind, we

look to only the evidence most favorable to the prosecution, which in this case


                                         -9-
centers on the fact the police did not see anyone else take possession or control of

the cigar box later found to contain the marijuana. While we might have viewed

the evidence differently, we cannot say it was unreasonable for the jury to find

Mr. Lopez participated in a drug transaction and to reject Mr. Lopez’s and Mr.

Prentise’s testimony attempting to explain their actions.



       Admittedly, little direct evidence supports the jury’s verdict. Even if we

view the evidence in the light most favorable to the prosecution, the fact the cigar

box contained Mr. Lopez’s fingerprint does not establish he put the marijuana in

the box as he clearly handled the box when he set it in the back of the vehicle.

Moreover, the State misstates the evidence when it claims the cigar box did not

contain either Mr. Prentise’s or his passenger’s fingerprints. Rather, the State’s

fingerprint expert testified she lacked sufficient rolled fingerprints of either Mr.

Prentise or his passenger to determine if the cigar box contained their

fingerprints. 4 Nevertheless, direct evidence is not necessary under Oklahoma law


       4
          Of the fourteen latent fingerprints lifted from the box, authorities sent only three
prints to Ms. Hart, a latent fingerprint examiner. Ms. Hart testified she could identify one
fingerprint as Mr. Lopez’s, but could not confirm whether the other two fingerprints
belonged to Mr. Prentise or his passenger because the fingerprints taken from them and
submitted to her for comparison were not “rolled.” Although she requested additional,
rolled fingerprints of Mr. Prentise and his passenger, authorities never provided them nor
the other eleven lifted fingerprints. In addition, no one attempted to lift any latent prints
from the bag of marijuana to ascertain whether either Mr. Lopez’s, Mr. Prentise’s, or his
passenger’s prints appeared.

                                             -10-
to prove knowledge, possession, or control of the marijuana. See Carolina, 839

P.2d at 665. In this case, we believe the inferences and circumstantial evidence

already discussed support the jury’s conviction, when reviewing the evidence in

the light most favorable to the prosecution. 5



       As to the Oklahoma Court of Criminal Appeals’ summary decision, nothing

in it provides us with any guidance on what that court considered to be sufficient

evidence to support the conviction. 6 We nevertheless acknowledge that under the




       5
           Having concluded sufficient evidence supports Mr. Lopez’s conviction, we
nevertheless feel compelled to discuss the magistrate judge’s determinations as to the
inconsistencies in the witnesses’ testimony. In finding sufficient evidence existed to
uphold Mr. Lopez’s conviction, the magistrate judge focused on an inconsistency between
Mr. Prentice’s and Mr. Lopez’s testimony concerning the peanut brittle. The magistrate
judge noted their testimony differed as to whether Mr. Lopez gave Mr. Prentise a “piece”
of peanut brittle or Mr. Prentise took a “bite” of peanut brittle, before returning it to Mr.
Lopez. The State likewise directs us to this inconsistency. We find this inconsistency
inconclusive because the issue of whether a “bite” includes taking a “piece” of peanut
brittle is not material, but more of a matter of semantics. In addition, we note the
magistrate judge found Mr. Prentise’s testimony that the cigar box was empty when he
received it conflicted with Captain Murphy’s testimony. We disagree. Captain Murphy
merely testified he did not see what, if anything, the cigar box contained. While we do
not agree with the magistrate judge’s evaluation of these inconsistencies, we find
sufficient evidence existed for a conviction even without considering them. Moreover,
we are mindful of our obligation not to weigh conflicting evidence or consider the
credibility of the witnesses. See Messer, 74 F.3d at 1013.

       6
         The Oklahoma Court of Criminal Appeals also summarily reduced Mr. Lopez’s
sentence on grounds of prosecutorial misconduct. However, because the issue of whether
this conduct influenced the outcome of the trial is not before us on appeal, we will not

                                            -11-
provisions of the Anti-Terrorism and Effective Death Penalty Act, we pay greater

deference to the state court’s factual findings and legal determinations. See

Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). Moreover, we

recognize the Supreme Court has “been careful to limit the scope of federal

intrusion into state criminal adjudications and to safeguard the States’ interest in

the integrity of their criminal proceedings.” Williams v. Taylor, 120 S. Ct. 1479,

____, 2000 WL 385364 at *10 (Apr. 18, 2000). Recognizing the deference

afforded to state adjudications, the evidence in this case, together with the

deference afforded the state courts, leads us to conclude sufficient evidence

supports Mr. Lopez’s verdict.



       After reviewing the evidence in the light most favorable to the prosecution,

we find any rational trier of fact could have found Mr. Lopez guilty beyond a

reasonable doubt. In so concluding, we accept the jury’s resolution of the

evidence in the prosecution’s favor because, in this case, it clearly does not fall

outside the bounds of reason. Instead, this case involves a number of inferences

and circumstantial evidence sufficient to establish the necessary link between Mr.

Lopez and his knowledge or constructive possession of the marijuana, as required

by Oklahoma law.



address it.

                                         -12-
      Based on our conclusion Mr. Lopez’s conviction is constitutionally firm,

we AFFIRM the district court’s judgment upholding his conviction.


                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




                                       -13-
