UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4976

DARNELL ELLIOTTE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CR-97-203)

Submitted: June 9, 1998

Decided: June 30, 1998

Before MURNAGHAN, NIEMEYER, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert D. Finch, Jr., Axton, Virginia, for Appellant. Helen F. Fahey,

United States Attorney, John S. Davis, Assistant United States Attorney, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Darnell Elliotte appeals his conviction for possession of a firearm

by a convicted felon, in violation of 18 U.S.C.A.§ 922(g)(1) (West

1994 & Supp. 1998). Finding no reversible error, we affirm Elliotte's

conviction.

The Government's evidence at trial established that Daryl Jefferson

("Jefferson"), a paid informant for the Richmond police, arranged to

buy $2500 worth of crack cocaine from Elliotte. Jefferson arrived at

the meeting point followed by police, with a concealed recorder on

his person and carrying $2500 in marked "buy money." Elliotte was

driving a Nissan Altima. Elliotte drove Jefferson to a park, at which

point Elliotte stopped the car. An unidentified man (the "robber")

entered the backseat of the car. Jefferson did not know the robber, and

Elliotte claimed not to know the robber either. The robber asked Jefferson and Elliotte whether they were looking for the drug supplier.

When Elliotte answered affirmatively, the robber said that he had the

drugs with him, and told Elliotte to drive away from the park.

After the three men had driven away, the robber pulled out a gun,

put it to Jefferson's head, and demanded all his money. Jefferson gave

the robber the $2500 along with his jewelry, and Elliotte also gave the

robber some money. The robber continued to point the gun only at

Jefferson, and told Elliotte to stop the car. The robber exited the car,

walked into an alley, and tucked the gun into his shorts. Elliotte

denied having set Jefferson up, and insisted that they had both been

robbed. Elliotte stated that he was going to get his gun, and was going

to "straighten" the robber.

After Elliotte let Jefferson out, police officers followed Elliotte to

a house a few blocks away from the original meeting point. Elliotte

entered the house for a few minutes, then got back in his car and

drove to a convenience store. After Elliotte bought groceries at the

convenience store, police stopped him. The police found that a bill

Elliotte was carrying matched the serial number of one of the bills in

the buy money given to Jefferson. They arrested Elliotte for robbery.

Upon searching Elliotte, the police found $588 in cash. The trunk of

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the Altima contained $900 in $50 bills. The police compared the

serial numbers of the photocopied buy money to those of the money

seized from Elliotte, and determined that all of the money in the trunk

was buy money. Of the $588 in Elliotte's pocket, $530 of it was buy

money.

The trunk of the Altima also contained a loaded Ruger 9 millimeter

semiautomatic pistol. The gun was partially on top of and touching

the buy money. Both the gun used by the robber and the gun found

in the Altima's trunk were black and of similar size.

In his defense, Elliotte called his girlfriend, Shirley Carrington.

Carrington testified that she was the owner of the Altima. However,

Elliotte traded in his previous car to help Carrington buy the Altima,

had his own keys, used the car several times a week, and did not need

Carrington's permission to use the car. Carrington claimed that the

gun in the Altima was hers, given to her by a friend whose phone

number and address she did not know. Carrington stated that she did

not pay her friend for the gun, did not have any idea how to use the

gun, and did not know whether it was loaded.

Carrington testified that she kept the gun in the trunk of whichever

one of her two cars she was driving. She testified that she kept it in

her car for protection at work and at home. Carrington testified that

she never told Elliotte about the gun. When asked why she kept the

gun in her car to protect her house, she stated that she did not know.

The district court found Elliotte guilty. The court noted that the evidence was clear that the gun and the money from the robbery were

in the back of the Altima. The court noted that whether or not the gun

was the same gun the robber had was irrelevant, but that it was very

likely Elliotte did know the robber, that they split the proceeds, and

that Elliotte put the money in the back of the car. The court found

Carrington "inherently unbelievable," and further found that even if

it were her gun, Elliotte knew about its presence in the car.1 On

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1 The district court's conclusion about Carrington's credibility is not

reviewable. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.

1989).

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appeal, Elliotte contends that the evidence was insufficient to find that

he knowingly possessed the gun.2

In reviewing a sufficiency of the evidence challenge to a conviction, this court inquires whether "`any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.'" United States v. Johnson, 55 F.3d 976, 979 (4th Cir. 1995)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The evidence is construed in the light most favorable to the Government,

drawing all favorable inferences from it, and taking into account both

circumstantial and direct evidence. See Johnson , 55 F.3d at 979.

"Possession" under 18 U.S.C.A. § 922(g)(1) can be established by

showing constructive possession. See United States v. Blue, 957 F.2d

106, 107 (4th Cir. 1992). Constructive possession exists when the

defendant exercises, or has the power to exercise, dominion and control over the firearm or the premises where the firearm is located. See

United States v. Wilson, 107 F.3d 774, 779-80 (10th Cir. 1997);

Johnson, 55 F.3d at 979; Blue, 957 F.2d at 107.

When viewed in the light most favorable to the Government, the

evidence shows that a reasonable trier of fact could find beyond a reasonable doubt that Elliotte knowingly possessed the firearm. The evidence established that Elliotte, along with the robber, planned an

armed robbery of Jefferson, as shown by the large quantity of "buy

money" in the Altima and in Elliotte's pocket. The gun was found in

the Altima, on top of and touching the buy money. Further, not only

had Elliotte been in the Altima before, but he drove the car on a regular basis, had his own key, and helped to buy the car. Thus, the district

court reasonably concluded that Elliotte exercised dominion and control over the gun and had knowledge of its presence. See United

States v. Hobbs, 136 F.3d 384, 390-91 (4th Cir. 1998); Wilson, 107

F.3d at 780; Johnson, 55 F.3d at 979. Accordingly, there was sufficient evidence to show that Elliotte knowingly possessed the gun. See

18 U.S.C.A. § 922(g)(1); Blue, 957 F.2d at 107.

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2 Elliotte stipulated that he was a convicted felon, and that the firearm

was shipped and transported in interstate commerce. See 18 U.S.C.A.

§ 922(g)(1).

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We grant Elliotte's motion to submit the case on the briefs and dispense with oral argument. We affirm Elliotte's conviction.

AFFIRMED

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