UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4742

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DARRELL GERALD TAYLOR,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (CR-04-115-F)

Submitted: April 10, 2006 Decided: May 9, 2006

Before MOTZ, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Darrell Gerald Taylor was convicted after a jury trial of

possession of a firearm by a convicted felon. He appeals, raising

claims of insufficiency of the evidence, prosecutorial misconduct

during the closing argument, and improper jury instructions. After

careful consideration, we affirm.

I.

A defendant challenging the sufficiency of the evidence

faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997). “[A]n appellate court’s reversal of a

conviction on grounds of insufficient evidence should be confined

to cases where the prosecution’s failure is clear.” United

States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984). In reviewing

a sufficiency challenge, “[t]he verdict of a jury must be sustained

if there is substantial evidence, taking the view most favorable to

the Government, to support it.” Glasser v. United States, 315 U.S.

60, 80 (1942). “[S]ubstantial 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.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).

To prove a violation of 18 U.S.C. § 922(g)(1) (2000), the

Government must establish: (1) the defendant previously had been

convicted of a crime punishable by a term of imprisonment exceeding
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one year; (2) the defendant knowingly possessed the firearm; and

(3) the possession was in or affecting commerce. United States v.

Langley, 62 F.3d 602, 606 (4th Cir. 1995). Taylor first argues

that there was insufficient evidence to show that his prior

conviction was for a crime “punishable by imprisonment for a term

exceeding one year.” 18 U.S.C. § 922(g)(1).

The district court instructed the jury, without

objection, that it must determine that Taylor had “been convicted

of a felony, that is a crime punishable by a term in excess of one

year.” Taylor’s probation officer testified that Taylor was on

probation for possession of cocaine, a Class I felony, and the

state judgment was published to the jury. In addition, in his

closing argument, Taylor’s counsel conceded that his client was a

convicted felon. Accordingly, the evidence was sufficient for the

jury to conclude that Taylor had a qualifying prior conviction

under § 922(g).

Taylor also contends that his prior conviction did not

satisfy § 922(g) as a matter of law because, under North Carolina

law, he only faced a sentence of twelve months, due to his lack of

admitted aggravating factors. See North Carolina v. Allen, 615

S.E.2d 256, 265-70 (N.C. 2005) (holding that, after Blakely,

statutory maximum is the maximum that this particular defendant can

face in light of his criminal history and the fact found by a jury

or admitted by the defendant). However, as Taylor admits, his
*At the time Harp was decided, Allen was still pending on

appeal to the North Carolina Supreme Court. However the Supreme

Court affirmed the holding of the North Carolina Court of Appeals,

which was the holding considered by this court.

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argument is foreclosed by our decision in United States v. Harp,

406 F.3d 242, 246 (4th Cir.) (holding that “a prior North Carolina

conviction was for a crime punishable by imprisonment for a term

exceeding one year . . . if any defendant charged with that crime

could receive a sentence of more than one year”), cert. denied, 126

S. Ct. 297 (2005). Harp considered and rejected the argument that

Allen required a more individualized analysis of what constitutes

a felony.* Id. at 246-47. Thus, because it is undisputed that a

sentence of over twelve months could be imposed on a defendant

convicted of felony possession of cocaine, Taylor’s prior

conviction was properly considered a felony.

Taylor next contends that the evidence was insufficient

to show that he possessed the firearm. However, we find the

evidence to be more than sufficient. Taylor ran from the police,

and his actions and body movements alerted the officers that he

might have a gun. One officer saw Taylor make a throwing motion

and immediately thereafter recovered a revolver, lying in plain

view, from the exact area where the throwing motion had taken

place. In addition, the gun was stolen shortly before the offense

date. Although the evidence was circumstantial, it was sufficient

to enable a jury to conclude that Taylor possessed the firearm.
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II.

To obtain a new trial on a claim of prosecutorial

misconduct, a defendant must show that the prosecutor’s conduct was

improper, and that the “conduct prejudicially affected his

substantial rights so as to deprive him of a fair trial.” United

States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002). Moreover,

“it is undisputed that closing argument is not merely a time for

recitation of uncontroverted facts, but rather the prosecution may

make fair inferences from the evidence.” United States v.

Francisco, 35 F.3d 116, 120 (4th Cir. 1994). Because Taylor did

not object to any portion of the Government’s closing argument, his

claims are reviewable only for plain error. United States v.

Sanchez, 118 F.3d 192, 197 (4th Cir. 1997). 

First, Taylor contends that the Government (1) improperly

informed the jury that the fact that Taylor was a convicted felon

and, therefore, could not have a gun was undisputed, (2) improperly

bolstered testimony that the gun was stolen, and (3) misconstrued

an officer’s testimony. However, our review of the record shows

that the Government’s statements accurately summarized the

evidence. 

Taylor also asserts that the Government erred by stating

that an officer’s recollection was recorded in police reports, even

though the reports were not in evidence. Specifically, the

Government stated, “[b]elieve me, if they didn’t put that in there,
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you would have heard about it from the defense.” This statement

referred to Taylor’s cross-examination of another officer, which

focused on what was in the police report, what was left out, and

how that impacted the testimony at trial. The Government’s

statement was really a comment on defense counsel’s

cross-examination. In any event, even if the statement was

improper, it concerned an ancillary issue. Thus, any error did not

affect Taylor’s substantial rights.

III.

In general, the decision to give, or not to give, a jury

instruction, and the content of that instruction are reviewed for

an abuse of discretion. United States v. Burgos, 55 F.3d 933, 935

(4th Cir. 1995). To be entitled to a requested jury instruction,

the party urging the instruction must establish a sufficient

evidentiary foundation to support the instruction. United

States v. Lewis, 53 F.3d 29, 33 n.8 (4th Cir. 1995). The denial of

a requested instruction is reversible only if the proposed

instruction: (1) was correct, (2) was not substantially covered by

the court’s charge to the jury, and (3) dealt with a point so

important that failure to issue the requested instruction seriously

impaired the defendant’s ability to conduct his defense. Id. at

32.
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First, Taylor alleges that the court erred by failing to

give his requested instruction regarding the impact that bias or

prejudice might have on a witness’s testimony. Taylor asserts this

instruction was important, because Taylor had accused the officers

of being racist when he was arrested, and their testimony might be

colored by this statement. However, the jury was instructed that

an officer’s testimony is not entitled to greater or lesser weight

than an ordinary witness, that it should take into account any

benefit or interest the witness may have in the outcome of the

case, and that it should consider the witness’s relationship with

the defendant, as well as his candor and fairness. Accordingly,

the content of the requested instruction was covered by the court.

Next, Taylor asserts that the district court should have

included his requested instruction that mere presence at the scene

of a crime is not enough to show guilt. The district court

properly concluded that the “mere presence” instruction did not

deal with the factual situation presented at trial. Specifically,

there was no “crime scene” unless Taylor possessed the gun. Absent

his possession, there was no crime at all which could be improperly

attributed to him by his presence. Thus, the district court’s

instructions regarding the requirement of showing possession were

adequate to prevent a conviction based solely on Taylor’s proximity

to a gun. Thus, there was no error.
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IV.

Accordingly, we affirm Taylor’s conviction. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED