UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4326

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

CARL KOTAY GRAHAM, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Middle 

District of North Carolina, at Durham. James A. Beaty, Jr., 

Chief District Judge. (1:06-cr-00267-JAB) 

Submitted: October 10, 2008 Decided: November 6, 2008 

Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit 

Judges. 

Affirmed by unpublished per curiam opinion. 

A. Wayne Harrison, Sr., Greensboro, North Carolina, for 

Appellant. Anna Mills Wagoner, United States Attorney, Lisa B. 

Boggs, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

 Carl Kotay Graham appeals his conviction for possession 

with intent to deliver 12.2 grams of crack cocaine, see 21 

U.S.C.A. § 841 (West 1999 & Supp. 2008), challenging the 

sufficiency of the evidence presented against him. Finding no 

error, we affirm. 

I. 

 Because Graham challenges the sufficiency of the evidence 

to support his conviction, we summarize the evidence presented 

at trial, as well as the inferences flowing therefrom, in the 

light most favorable to the government. See Glasser v. United 

States, 315 U.S. 60, 80 (1942). On June 22, 2006, Greensboro 

(North Carolina) Police Department officers obtained information 

from a confidential informant (“Truck”) regarding a drug 

transaction that was to take place in downtown Greensboro. 

Officer Alston met with Truck, discussed what he needed to do to 

help the police, and searched him and his car. Several officers 

then followed Truck to a Hardee’s restaurant where the 

transaction was to occur and set up surveillance across the 

street. 

 Truck, driving a Cadillac, parked in the Hardee’s parking 

lot near a phone booth and remained there until a silver Hyundai 

arrived. Truck then exited his vehicle and opened the trunk, 

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thereby signaling the officers to move in. As they did, one 

police vehicle pulled in behind the Hyundai, blocking it in, 

while another, a Ford Expedition, attempted to block the 

Hyundai’s passenger-side door. The passenger in the Hyundai, 

later identified as Graham, opened the door before the Explorer 

could block it, exited the vehicle, and commenced running 

through the parking lot with his hands on his pants as if he 

were trying to prevent something from falling out. Upon seeing 

the officers, he pulled a medium-sized plastic bag from his 

pants, ripped it open, and started dumping its white, powdery 

contents onto a gravel lot. Officers later collected the 

contents, which the State Bureau of Investigation (“SBI”) 

laboratory determined to be 91.5 grams of cocaine hydrochloride. 

 While officers were collecting the cocaine, Officer Hill 

noticed a white substance in a plastic bag on the ground between 

the Hyundai’s passenger door and the bumper of the Ford 

Expedition that had been used to try to block the door. The 

substance was collected, as were two cell phones found on the 

ground near the Hyundai’s passenger door. The cell phones were 

later linked to Graham when he gave the officers his cell phone 

numbers. One of the numbers corresponded to one of the phones, 

and the other was one digit off from the number of the other 

phone. The SBI laboratory determined that the white substance 

found in the plastic bag was 12.2 grams of cocaine base (crack 

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cocaine). Sergeant Tom Kroh opined that the value of the crack 

cocaine was $60-$100 per gram. 

 Graham was arrested and advised of his rights, after which 

he admitted that he had bought approximately 15 ounces of powder 

cocaine about two weeks before and had been gradually selling 

it. Graham further admitted that he had come to Hardee’s to 

sell four ounces of powder cocaine to Truck for $3,000 and that 

he had sold five more ounces of powder cocaine earlier in the 

day. Graham was not asked about the crack cocaine found near 

where he had exited the Hyundai. 

 The driver of the Hyundai was Brandi Hancock, a girlfriend 

of Graham’s. Graham called Hancock several times from the 

Forsyth County Jail, where he was incarcerated. These calls 

were recorded, and during some of them, Graham instructed 

Hancock regarding the substance of her testimony. He told her, 

“Listen and pay attention . . . . This is how it is going to 

work.”* He then told her that if it appeared that charges 

against her would not be dismissed, Graham would represent that 

Hancock did not know anything about his illegal activities since 

she could not be criminally liable for a conspiracy that she did 

not know about. He also told her that they would “have to help 

 *

 The tapes of the conversations were not transcribed, but 

the tapes were in evidence in the district court. 

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each other,” and that if she were subpoenaed, she should say, 

“Nah, that ain’t what I said and I didn’t see it.” Graham 

added, “You know what I am saying.” 

 During a separate phone conversation, Graham inquired about 

discussions Hancock had with the police. Graham asked Hancock 

what she had said about how the two of them had met, how long 

they had known each other, and whether she had been asked if she 

had ever seen him do anything illegal. Graham told her, 

You did not know what was going on, you did not ask me 

what was going on, you know what I am saying. And the 

next thing you know they just came, you know what I am 

saying. You did not see nothing, you did not hear 

nothing. You know what I am saying. . . . And I 

promise you will be alright. 

Hancock then asked Graham if he had had crack cocaine, to which 

he responded, “‘B,’ listen, don’t worry about that.” 

 During another call, Graham asked Hancock which way Truck 

ran when the police moved in, and Hancock told him he went left. 

Graham informed her he was going to trial and stated, “I pled 

guilty to that powder, man, but they [are] trying to say that I 

had some crack on me, man. My only defense is you . . . . I 

need them to know, listen now, I need them to know that [Truck] 

ran by the passenger door.” Graham also told her, “I need you 

to let them know that you were not supervised for at least 2-3 

minutes, do you understand.” He later stated, “You my only 

defense, don’t you understand that? . . . If I lose, man I’m 

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gone, man, it’s over, bye, see you next lifetime . . . . It’s 

the crack that’s giving me, making me face this time.” 

 A federal grand jury returned a two-count bill of 

indictment against Graham. Count One charged possession with 

intent to deliver 12.2 grams of crack cocaine. Count Two 

charged possession with intent to deliver 91.5 grams of cocaine 

hydrochloride. 

 Graham pleaded guilty to Count Two and proceeded to a bench 

trial on Count One. At the close of the evidence, Graham moved 

unsuccessfully for a judgment of acquittal. See Fed. R. Crim. 

P. 29. The district court subsequently found Graham guilty on 

Count One: 

Based upon all the evidence that’s been presented, 

although it is circumstantial, the Court finds beyond 

a reasonable doubt that the 12.2 grams of cocaine 

base, crack, found in the area where [Graham] exited 

the vehicle and where his cell phones were located, 

was in [Graham’s] possession and was knowingly and 

intentionally possessed by him with intent to 

distribute cocaine base, crack. The Court further 

finds the evidence establishes beyond a reasonable 

doubt, although circumstantially, that [Graham] knew 

that what he possessed was a controlled substance. 

J.A. 192. The court imposed a sentence of 360 months’ 

imprisonment. 

II. 

 Graham challenges the sufficiency of the evidence to 

support the district court’s finding that he possessed with 

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intent to deliver the 12.2 grams of crack cocaine. We must 

sustain the verdict “if there is substantial evidence, taking 

the view most favorable to the Government, to support it.” 

Glasser, 315 U.S. at 80. We are prohibited from “overturn[ing] 

a substantially supported verdict merely because [we] . . . 

determine[] that another, reasonable verdict would be 

preferable. Rather, we shall reverse a verdict if the record 

demonstrates a lack of evidence from which a [factfinder] could 

find guilt beyond a reasonable doubt.” United States v. Burgos, 

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

35 F.3d 143, 148 (4th Cir. 1994) (explaining that it is within 

the province of the factfinder, not the appellate court, to 

“resolve[] any conflicts in the evidence presented, and if the 

evidence supports different, reasonable interpretations, the 

[factfinder] decides which interpretation to believe” (citation 

omitted)). Accordingly, in the context of a challenge to the 

sufficiency of the evidence, our task as an appellate court is 

simply to determine whether, in light of the evidence presented 

at trial, the district court “could rationally have reached a 

verdict of guilt beyond a reasonable doubt.” United States v. 

Powell, 469 U.S. 57, 67 (1984). Because we consider the 

evidence in the light most favorable to the government, granting 

“the government the benefit of all reasonable inferences from 

the facts proven to those sought to be established,” United 

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

must carry an imposing burden to successfully challenge the 

sufficiency of the evidence, see United States v. Beidler, 110 

F.3d 1064, 1067 (4th Cir. 1997). 

 He has not carried that burden in this case. At the time 

of the offense, three people were present in the immediate area 

of the drug transaction, Truck, Hancock, and Graham. Officers 

had searched Truck prior to the transaction to ensure that he 

did not have any drugs. As for Hancock, she testified that she 

did not have any drugs when she drove Graham to the Hardee’s. 

That left only Graham. While officers did not actually see 

Graham drop the crack cocaine, his cell phones were found in 

close proximity to the drugs, and he was seen running from the 

car, holding his pants as if he were trying to keep something 

from falling out. And, it was highly unlikely that someone else 

would have left drugs valued at hundreds of dollars on the 

ground, especially in the very area where Graham had been. 

 The evidence of Graham’s phone conversations with Hancock 

further supported the conclusion that the crack cocaine belonged 

to Graham. Attempting to influence a witness’s testimony is 

evidence of a defendant’s consciousness of his guilt. See

United States v. Van Metre, 150 F.3d 339, 352 (4th Cir. 1998). 

Here, the district court could reasonably have found that Graham 

was attempting to shape Hancock’s testimony regarding his 

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possession of the crack cocaine. And, we conclude that that 

evidence, taken together with the other evidence discussed 

herein, justified the district court’s determination that Graham 

had possessed the crack cocaine. 

III. 

 In sum, we conclude that the evidence was sufficient to 

support the district court’s finding of guilt on Count One. We 

therefore affirm Graham’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