UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4359

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHAMEL NESBITT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. Terrence W. Boyle, District Judge. (5:19-cr-00226-BO-1)

Submitted: July 25, 2024 Decided: July 29, 2024

Before GREGORY, HARRIS, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Edward Eldred, PARRY LAW PLLC, Chapel Hill, North Carolina, for 

Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 

North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In August 2022, a jury convicted Shamel Nesbitt of distributing a mixture and 

substance containing cyclopropyl fentanyl, a fentanyl analogue, with serious bodily injury 

and death resulting, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court 

sentenced Nesbitt to 292 months’ imprisonment, plus a 3-year term of supervised release. 

On appeal, Nesbitt raises two evidentiary issues and challenges the sufficiency of the 

Government’s evidence. For the reasons outlined below, we affirm. 

Nesbitt first assigns reversible error to the court allowing the lead investigator, 

Detective Joey Wheeler, to testify that the time-stamp on surveillance footage captured 

from the convenience store where the underlying drug transaction occurred was off by one 

hour because the program had not been adjusted to standard time. Defense counsel 

unsuccessfully objected to this testimony as hearsay without elaborating on the basis for 

that objection. “We review a district court’s evidentiary rulings for abuse of discretion.” 

United States v. Burfoot, 899 F.3d 326, 340 (4th Cir. 2018). 

Hearsay is an out-of-court statement that is offered “to prove the truth of the matter 

asserted in the statement.” Fed. R. Evid. 801(c). A statement, in turn, is defined as “a 

person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as 

an assertion.” Fed. R. Evid. 801(a). Upon review, the record establishes that Wheeler’s 

testimony regarding the time-stamp discrepancy was based on his own observation of the 

videorecording, not information conveyed to him by a third-party. Moreover, defense 

counsel did not object to this aspect of Wheeler’s testimony as lacking a proper foundation 

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or cross-examine Wheeler on the issue. Accordingly, we discern no error in the district 

court overruling the proffered hearsay objection. 

Nesbitt next assigns error to the court allowing Wheeler to testify that the decedent, 

Lucas Urbina, was driving the subject vehicle (a Ford Explorer) on the night in question. 

Because Nesbitt did not object to this testimony in the district court, we review this issue 

only for plain error. See United States v. Walker, 32 F.4th 377, 394 (4th Cir. 2022). “There 

is plain error only when (1) an error was made; (2) the error is plain; (3) the error affects 

substantial rights; and (4) the error seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” Id. at 394-95 (internal quotation marks omitted). 

We conclude that the record does not show any error in this regard, let alone plain 

error. As recognized by the district court and conceded by the Government on appeal, the 

relevant surveillance footage is blurry at times and does not depict the drug transaction. 

However, as the lead investigator, Wheeler was well equipped to identify the individuals 

appearing in the video, and admission of such identification testimony was consistent with 

Federal Rule of Evidence 701.*

 See United States v. Robinson, 804 F.2d 280, 282 (4th Cir. 

* Specifically, FRE 701: 

[P]ermits lay-opinion testimony where the opinion is (a) rationally based on 

the witness’s perception; (b) helpful to clearly understanding the witness’s 

testimony or to determining a fact in issue; and (c) not based on scientific, 

technical, or other specialized knowledge that would qualify as expert 

testimony within the scope of Rule 702. That opinion must be based on 

personal knowledge. 

United States v. Arce, 49 F.4th 382, 395 (4th Cir. 2022) (internal quotation marks omitted).

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1986) (“A lay witness may give an opinion concerning the identity of a person depicted in 

a surveillance photograph if there is some basis for concluding that the witness is more 

likely to correctly identify the defendant from the photograph than is the jury.”). Moreover, 

admission of Wheeler’s testimony in this regard did not affect Nesbitt’s substantial rights 

because Michael Horrall, who was in the Explorer when Urbina overdosed, testified that 

Urbina drove the Explorer that night. 

Finally, Nesbitt argues that the district court erred by denying his Fed. R. Crim. P. 

29 motion for judgment of acquittal because the Government’s evidence was insufficient 

to prove his guilt beyond a reasonable doubt. Upon reviewing this ruling de novo, “[w]e 

will uphold the verdict if, viewing the evidence in the light most favorable to the 

government, it is supported by substantial evidence, which 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. Savage, 885 F.3d 212, 219 

(4th Cir. 2018) (internal quotation marks omitted). “A defendant who brings a sufficiency 

challenge bears a heavy burden, as appellate reversal on grounds of insufficient evidence 

is confined to cases where the prosecution’s failure is clear.” Id. (internal quotation marks 

omitted). 

Consistent with his argument in the district court, Nesbitt emphasizes on appeal that 

the relevant surveillance footage did not show the underlying drug transaction between 

Nesbitt and Urbina and that there was a dearth of direct evidence. Viewing the record 

evidence in the light most favorable to the Government, we conclude that there was

sufficient circumstantial evidence to support the jury’s guilty verdict, including

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(1) Horrall’s testimony that (a) no one in the vehicle possessed heroin before the group 

arrived at the convenience store, prior to which both Urbina and another man were making 

calls and sending messages trying to find heroin; and (b) upon returning to the vehicle after 

briefly entering the convenience store to buy alcohol, the group had obtained heroin and 

was preparing to inject it; (2) a multitude of Facebook messages and the call history 

between Urbina and Nesbitt, which corroborated Urbina’s efforts to buy heroin from 

Nesbitt; and (3) surveillance footage from which the jury could reasonably conclude that 

Nesbitt was the driver of the vehicle that arrived at the convenience store only minutes 

after Urbina’s last call to him. “As we have observed repeatedly, circumstantial evidence 

is not inherently less valuable or less probative than direct evidence and may alone support 

a guilty verdict.” United States v. Martin, 523 F.3d 281, 289 (4th Cir. 2008) (internal 

quotation marks omitted). And, of course, review of the denial of a Rule 29 motion requires 

that “we construe the evidence in the light most favorable to the government, assuming its 

credibility, and drawing all favorable inferences from it.” United States v. Darosa, 102 

F.4th 228, 237 (4th Cir. 2024) (internal quotation marks omitted). While we acknowledge 

that this was perhaps a close issue for the jury, “[t]hrough this confined lens, we find that 

sufficient evidence existed for a reasonable jury to convict.” United States v. Ziegler, 1 

F.4th 219, 232 (4th Cir. 2021). 

Finding no reversible error, we affirm. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the materials before this court and 

argument would not aid the decisional process. 

AFFIRMED

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