1 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 24 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD JAMES BONNER, Defendant-Appellant. No. 97-8090 (D.C. No. 97-CR-0016-J) (District of Wyoming)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and LUCERO , Circuit Judges.

On January 17, 1997, Defendant-Appellant Richard James Bonner was charged with one count of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). A jury found Bonner not guilty on the conspiracy ch arge and guilty on the possession with intent to distribute charge. Bonne r challenges his conviction on- 2 -

two grounds: (1) there was insufficient evidence fo r his possession with intent to distribute conviction, and (2) the trial court shou ld have granted Bonner’s acquittal motion. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm. To convict Bonner of possession of methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1), the governm ent had to prove that Bonner possessed a controlled substance, knew that he poss essed a control substance, and intended to distribute the controlled substance. Se e United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). Bonner contends th at the government failed to meet its burden on the third element because there was insufficient evidence to establish his intent to distribute. We review sufficiency of the evidence questions de novo. See United States v. Bell , 154 F.3d 1205, 1208 (10th Cir. 1998). Evidence i s sufficient to support a conviction if the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the government, would allow a reasonable jury to find the defendant guilty beyond a reasonab le doubt. Id. In examining the evidence, we evaluate the sufficiency of the eviden ce by considering the collective inferences to be drawn from the evidence as a whole. See United States v. Johnson , 130 F.3d 1420, 1428 (10th Cir. 1997), cert. denie d , 119 S.Ct. 78 (1998). We will not overturn a jury’s finding unle ss no reasonable juror could have reached the disputed verdict. Id.- 3 -

Reviewing the evidence in the light most favorable to the government, we find that the combination of the various pieces of evidence provides sufficient grounds for a reasonable jury to conclude that Bonn er intended to distribute the methamphetamine. The evidence is as follows. In D ecember 1996, Bonner and an acquaintance, Memory Pachowicz, lived in Rapid C ity, South Dakota. The following month, Bonner and Pachowicz drove to Spok ane, Washington with the remainder of 18 ounces of methamphetamine that Pach owicz had stolen from her boyfriend. (App. Vol. 3, at 45. ) Prior to leaving for Spokane, Pachowicz repackaged the drugs into small bundles and distrib uted it for resale. (Id. ) Pachowicz sold portions of this methamphetamine to Bonner on two different occasions, once selling him a gram, (id. at 46 ), and another time selling him a quarter of an ounce (7.1 grams). (Id. at 54. ) Pachowicz also “fronted” Bonner an additional ounce and a half of methamphetamine (42. 5 grams) — meaning, she advanced methamphetamine to Bonner for no money up front in exchange for a promise to payback the money earned on resale of th e substance. (Id. at 45-46,
49-50. ) Pachowicz added that Bonner “was supposed to be my partner,” (id. at
51 ), that Bonner was present the majority of the time when Pachowicz made sales of methamphetamine, (id. at 52 ), and that they had an understanding that as soon as they arrived in Spokane, they would use, distrib ute, and sell the rest of the methamphetamine “to have money to live on.” (Id. at78, 80. ) Pachowicz had- 4 -

assumed that Bonner would make enough money from th e profit of the methamphetamine sales that he could buy himself a c ar and return to Rapid City from Spokane. (Id. at 115. ) During their drive to Spokane, Bonner and Pachowiczstopped at the Flying J Truck Stop in Gillette, Wyoming and became involv ed in a heated argument over accusations that Bonner was stealing methamphe tamine. (Id. at 112. ) The argument turned violent and Pachowicz shot at Bonne r with her pistol, but missed. (Id. at 63. ) The police were summoned to investigate this dis turbance and after subsequent arrests discovered: (1) Bonner con cealing 3.5 grams of methamphetamine, inside his sock, that had been div ided and packaged into five or six separate bindles, (id. at 134-37, 174, 176, 183, 212, 217 ); (2) Six empty plastic bags found on Bonner, (id. at 139-49 ); (3) Three hundred dollars in cash hidden underneath the insole liner of Bonner’s right shoe, (id. at 138-39, 149 ); and (4) Nine individually wrapped bags of methamphe tamine, (id. at 210-11 ), weighing 70 grams, (id. at 215 ), that were hidden in a tissue box that Bonner had concealed in a birdcage that was in Pachowicz’s car , (id. at 191-92 ). When considered collectively and in the light most favorable to the government, the evidence clearly provides grounds f or a reasonable jury to conclude that Bonner intended to distribute methamp hetamine. There was testimony that Bonner had previously sold methamphe tamine to three different- 5 -

customers, (id. at 55, 81-83 ), that the $300 hidden in Bonner’s shoe were drug sale profits, (id. at 104 ), and that Bonner intended to sell more methamphet amine in the future, (id. at 78-80 ). Indeed, an officer testified that the 3.5 grams of methamphetamine and the empty baggies found on Bonn er were indicative of a drug distribution scheme. (Id. at 140. ) Bonner’s attempts to portray the evidence as proof of only possession and not an intent to distribute are unpersuasive given the standard of review for sufficiency claims. For example, Bonner argues that the $300 hidden in his shoe were a gift from his mother and were not profits fr om drug sales. (Aplt. Br. at
10. ) However, this argument was already apparently re jected by the jury, and given the plethora of evidence described above, the re was sufficient evidence for a reasonable jury to conclude that Bonner intended to distribute methamphetamine. Since the standard of review for sufficiency of the evidence and motions for judgment of acquittal are the same, compare Bell , 154 F.3d at 1208 (sufficiency of the evidence) withUnited States v. Janusz , 135 F.3d 1319, 1323 (10th Cir. 1998) (motion of acquittal), Bonner’s ac quittal motion is likewise denied.
ENTERED FOR THE COURT David M. Ebel Circuit Judge