US v. Penny Young, No. 10-5326 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5326 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PENNY RENAE YOUNG, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:10-cr-00010-JPB-DJJ-1) Submitted: October 27, 2011 Decided: November 17, 2011 Before GREGORY, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Byron Craig Manford, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Penny Renae Young appeals her conviction for two counts of unauthorized use of an access device, in violation of 18 U.S.C. § 1029(a)(2) (2006). Young argues first that the district court erred in providing an inadequate response to the jury s question of law and second that the district court erred in denying Young s motion judgment of acquittal. reversible error. The for a new trial and motion for We have reviewed the record and find no Accordingly, we affirm. district court s answer to the jury s question must be reviewed for plain error because Young did not object. Fed. R. Crim. P. 52(b). [T]he necessity, extent, and character of any supplemental instructions to the jury are matters within the sound discretion of the district court. Grossman, 400 F.3d 212, 219 n.2 (4th United States v. Cir. 2005) (citation omitted). When evaluating the adequacy of supplemental jury instructions given in response to a question asked by the jury during deliberations, we ask whether the court s answer was reasonably responsive to the jury s question and whether the original and supplemental instructions as a whole allowed the jury to understand the issue presented to it. Taylor v. Virginia Union Univ., 193 F.3d 219, 240 (4th Cir. 1999) (internal quotation marks and citation omitted). [T]he district court s jury s apparent source duty of is simply confusion to fairly 2 respond and to the accurately without creating prejudice. The particular words chosen, like the decision whether to issue any clarification at all, are left to the sound discretion of the district court. Smith, 62 F.3d 641, 646 (4th Cir. 1995) United States v. (citation omitted). Given the specificity of the jury charge, we conclude that Young has not shown that the supplemental instruction. jury s question warranted any Accordingly, the district court did not err in referring the jury to the relevant sections of the jury charge in answering the jury s question. We review a district court s decision to deny a Rule 29 motion for a judgment of acquittal de novo. United States v. Hickman, 626 F.3d 756, 762-63 (4th Cir. 2010). A jury verdict must be sustained if, viewing the evidence in the light most favorable to the Government, substantial evidence. evidence that a the Id. at 763. reasonable verdict is supported by [S]ubstantial evidence is finder of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. omitted). The appellate Id. (internal quotation marks court cannot make credibility determinations and must assume the jury resolved all testimonial contradictions in the Government s favor. United Penniegraft, 641 F.3d 566, 572 (4th Cir. 2011). States v. Reversal for insufficient evidence is reserved for the rare case where the prosecution s failure is clear. 3 United States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal quotation marks omitted). Despite Young s challenges to the credibility of the Government s evidence, weighs credibility the [t]he of jury, the not the evidence conflicts in the evidence presented. reviewing and court, resolves any United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks and citation omitted). Our review of the record leads us to conclude that the district court did not err in denying Young s motion for a new trial and motion for acquittal and that the evidence was sufficient to support the jury s finding. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4

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