UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4435

HOWARD DAVIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, Sr., District Judge.

(CR-97-166)

Submitted: January 26, 1999

Decided: February 16, 1999

Before LUTTIG and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Howard Davis appeals his conviction for possession with intent to

distribute crack cocaine in violation of 21 U.S.C.§ 841(a)(1) (1994).

During the course of a relatively routine traffic stop, Davis was

arrested for driving on a suspended license and an additional outstanding violation. During the search of the car incident to Davis's

arrest, the investigating officer found more than ninety grams of crack

cocaine in the pocket of a jacket the officer discovered on the back

seat of the rental car Davis was driving. Following a trial, the jury

found Davis guilty of possession of the crack cocaine.

Davis noted a timely appeal and his attorney filed a brief pursuant

to Anders v. California, 386 U.S. 738, 744 (1967), in which he represents that there are no arguable issues of merit in this appeal. Nonetheless, in his brief, counsel addressed whether the district court erred

in denying Davis's Fed. R. Crim. P. 29 motion for acquittal. The time

for filing a supplemental brief has passed and Davis has not

responded, despite being advised of his right to do so. Because we

find counsel's assignment of error to be without merit and can discern

no other error in the record on appeal, we affirm Davis's conviction

and sentence.

We review the denial of a motion for acquittal under a sufficiency

of the evidence standard. See Fed. R. Crim. P. 29; United States v.

Romer, 148 F.3d 359, 364 (4th Cir. 1998). In deciding whether the

evidence was sufficient, the relevant question is not whether the court

is convinced of guilt beyond a reasonable doubt, but rather whether

the evidence, when viewed in the light most favorable to the government, was sufficient for a rational trier of fact to have found the

essential elements of the crime beyond a reasonable doubt. See

Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert. denied, 519

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U.S. 115 (1997). If substantial evidence exists to support a verdict,

the verdict must be sustained. See Glasser, 315 U.S. at 80.

This offense requires proof beyond a reasonable doubt that Davis

knowingly and intentionally possessed the cocaine found in the jacket

on the back seat of the rental car he was driving with the intent to distribute it. See United States v. Williams, 41 F.3d 192, 199 (4th Cir.

1994). It is well established that possession of a controlled substance

can be actual or constructive. See United States v. Wright, 991 F.2d

1182, 1187 (4th Cir. 1993). "Proof of constructive possession is sufficient to satisfy the element of knowing possession." United States v.

McCracken, 110 F.3d 535, 541 (8th Cir. 1997). The government may

establish constructive possession by circumstantial as well as direct

evidence. See Burgos, 94 F.3d at 873. In addition, possession may be

sole or joint. See United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir.

1993).

In order "to establish constructive possession, the government must

show ownership, dominion, or control over the drug or the premises

or vehicle in which it was concealed." Id. ; United States v. Blue, 957

F.2d 106, 107 (4th Cir. 1992) (quoting United States v. Ferg, 504

F.2d 914, 916-17 (5th Cir. 1974)). The evidence at trial showed that

Davis was driving the rental car, thereby asserting dominion and control over the vehicle in which the crack cocaine was concealed. This

fact allowed the rational conclusion that Davis had constructive possession of the crack cocaine. In addition, despite previously denying

ownership, while Davis was being processed, he took the jacket without protest from the arresting officer when the officer handed it to him

and put it on without being instructed to do so. The jacket fit Davis,

buttressing the conclusion that the jacket belonged to him as did the

cocaine in the pocket. As a result, the evidence allowed a rational jury

to find beyond a reasonable doubt that Davis possessed the crack

cocaine.

Davis's defense rested on evidence that he did not own a jacket like

the one the arresting officer found in the rental car. Presumably,

Davis wanted the jury to reach the conclusion that someone else had

left the jacket in the car before Davis obtained control over it. As a

result, contends Davis, he was not in knowing possession of the jacket

or its contents. However, circumstantial evidence need not exclude

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every reasonable hypothesis of innocence. See United States v.

Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989); see also United States

v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990) ("In sum,

knowing possession can be inferred from the defendant's control over

the vehicle in which the illicit substance is contained if there exists

other circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.").

Davis does not explicitly challenge the Government's proof regarding his intent to distribute the cocaine. See United States v. Roberts,

881 F.2d 95, 99 (4th Cir. 1989) (noting intent may be inferred from

quantities too large for personal consumption). Moreover, there was

expert testimony at trial that tended to show that a user amount of

crack cocaine was approximately one gram of crack. Davis was in

possession of more than ninety times that amount. A rational jury

could find beyond a reasonable doubt that Davis intended to distribute

this large amount of crack cocaine. The government presented substantial evidence to support the guilty verdict. The district court did

not err in denying Davis's Rule 29 motion.

As required by Anders, we have independently reviewed the entire

record and all pertinent documents. We have considered all possible

issues presented by this record and conclude that there are no nonfrivolous grounds for this appeal. Pursuant to the plan adopted by the

Fourth Circuit Judicial Council in implementation of the Criminal

Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires

that counsel inform his client, in writing, of his right to petition the

Supreme Court for further review. If requested by his client to do so,

counsel should prepare a timely petition for writ of certiorari. Consequently, counsel's motion to withdraw is denied. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the material before the court and argument would not aid

the decisional process.

AFFIRMED

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