### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-40976 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ROY CORNELL JOHNSON, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:09-CR-167-1

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Roy Cornell Johnson was convicted, following a jury trial, of conspiracy to distribute or dispense or possess with intent to distribute or dispense 50 grams
or more of cocaine base; two counts of possession with i n tent to distribute less than five grams of cocaine base; and possessio n w ith i n tent to distribute 50 grams or more of cocaine base. Johnson was sentenced to a total of 360 months of imprisonment and eight years of supervised release. H e a rgues that the district court abused its discretion in admitting evidence of his “extraneous acts” U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 24 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-40976 Document: 00512031279 Page: 1 Date Filed: 10/24/2012No. 11-40976

becaus e th e Government failed to file timely notice of its intent to do so or provide goo d c a u se for its failure. At issue was testimony from a confidential informant (CI) that Johnson sold crack cocaine to others prior to the conspiracy offense alleged in the superseding indictment. Because Johnson raises this argument for the first time on appeal, review is for plain error. See Puckett v. United States , 556 U.S. 129, 135-36 (2009). As the Government asserts, after the district court issued its evidentiary ruling, the Governmen t n a rr o wed its questioning of the CI to illicit testimony regarding drug transactions th a t o c c urred only during the period charged in the indictment. As su c h , th is court need not decide the propriety of the district court’s earlier evidentiary ruling since evidence of transactions preceeding the charged conspiracy was not introduced. See United States v. Garcia Abrego , 141 F.3d 142, 175 (5th Cir. 1998); United States v. Sumlin , 4 8 9 F.3d 683, 689 (5th Cir. 2007); United States v. Rice , 607 F.3d 133, 141 (5th Cir. 2010). Accordingly, Johnson’s challenge to the district court’s evidentiary is unavailing. Johnson c o n t e n ds that there was insufficient evidence to prove that he possessed the backpack containing crack cocaine recove r ed from Amanda Fra n k ’ s closet, which was used by the Government to prove the 50 grams or
more of cocaine base alleged i n c o u nt s one and four of the superseding indictment. Because Johnson moved for a judgment of acquittal at the close of all th e e vi d e n c e , the issue is preserved for review. F E D
. R. C R I M
. P. 29. Therefore, “the standard of review in assessing the sufficienc y c h allenge is whether, considering all the evidence in the light most favorable to the verdict,

a reason able trier of fact could have found that the evidence established guilt beyond a reasonable doubt.” United States v. Mendoza , 226 F.3d 340, 343 (5th Cir. 2000). The CI testified that Johnson had told her that he was “st ayi n g” w ith Frank, his girlfriend, and that he stored his drugs near “clothes in the cl o s e t

. ” Frank testified that Johnson slept at her house on June 11, 2009, and then drove
2 Case: 11-40976 Document: 00512031279 Page: 2 Date Filed: 10/24/2012No. 11-40976

her to work the next morning in her vehicle. Frank allowed Johnson to use her vehicle all day and did not see him until h e picked her up at work at approximately 5:15 p.m. Frank stated that the backpack found in the closet did not belong to he r and that she did not see it when she left for work on the morning of June 12, 2009, the day that the search warrant was executed. The testimony of the above witnesses was sufficient for a reasonable jury to find that Johnson, a proven drug dealer, had knowledge of, and access to, the backpack containing the cr ack c ocaine found in his girlfriend’s closet. See United States v. Brito , 136 F.3d 397, 411 (5th Cir. 1998); United States v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003). To the extent that Johnson c h al l enges the sufficiency of the evidence by attacking the credibility of the Government’s witnesses, his argument is without merit. See United State s v . Polk , 56 F.3d 613, 620 (5th Cir. 1995). Viewing the evidence in favor of the verdict, there was sufficient evidence presented at t rial to sustain Johnson’s convictions. See United States v. Resio-Trejo , 45 F.3d 907, 911 (5th Cir. 1995). Accordingly, the judgment of the district court is AFFIRMED.

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