IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20301 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK ANTHONY BROOKS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-335-1 -------------------- February 5, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Mark Anthony Brooks (Brooks) appeals his jury-trial

conviction for possession with intent to distribute cocaine base.

Brooks challenges the district court's denial of his motion to

suppress and argues the evidence introduced at trial was

insufficient to support his conviction.

This court reviews a ruling on a motion to suppress based

upon live testimony under the “clearly erroneous” standard for

findings of fact and de novo for questions of law. United States

v. Muniz-Melchor,

(5th Cir. 1990). The

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-20301 -2-

evidence is viewed in the light most favorable to the prevailing

party.

The district court did not err in denying Brooks's motion to

suppress. When the officers initially drove up to Brooks and the

other men standing in the Lincoln Park apartments parking lot,

they intended to initiate consensual contact with the men to

determine “what these guys [were] doing.” As noted in United

States v. Cooper,

(5th Cir. 1995), the

officers could initiate this type of contact without any

objective level of suspicion.

Regardless of their initial intent, the situation changed

when they exited the van, and the officers detected the odor of

marijuana. An investigatory stop is proper if based on a

reasonable suspicion that criminal activity is afoot. Terry v.

Ohio,

(1968). The odor of marijuana combined with

the prior observation that Brooks was smoking a cigar in a high

crime area provided reasonable suspicion that Brooks was

committing a crime. Id.; Illinois v. Wardlow,

(2000).

We also reject Brooks's challenge to the sufficiency of the

evidence. We review the sufficiency of evidence to determine

whether any reasonable jury could have found that the evidence

established guilt beyond a reasonable doubt. Jackson v.

Virginia,

(1979); United States v. Martinez,

(5th Cir. 1992). This court views all

evidence in the light most favorable to the Government. United

States v. Shabazz,

(5th Cir. 1993); United No. 00-20301 -3-

States v. Alonzo,

(5th Cir. 1982). All

reasonable inferences are construed in accordance with the jury’s

verdict, and the jury is solely responsible for determining the

weight and credibility of the evidence. Martinez,

.

Officer Yencha testified that he saw Brooks drop a baggy

from his hand to the ground, that the contents of the baggy

tested positive for cocaine, and that, based upon his experience

and training, the amount recovered by the officers was an amount

consistent with possession for distribution. Brooks argues that,

based upon the testimony of his lighting expert, it was too dark

in the parking lot for Officer Yencha to have seen him drop the

baggy. Officer Yencha testified, however, that the court-room

demonstration by Brooks's lighting expert was not consistent with

the amount of light present in the parking lot on the night in

question, and this court will not substitute its own

determination of credibility for that of the jury. Martinez,

. Brooks raises several other challenges to Officer

Yencha's testimony; we do not find Officer Yencha's testimony to

be either inconsistent or incredible.

Brooks's challenges to the denial of his motion to suppress

and to the sufficiency of the evidence are without merit. His

conviction is AFFIRMED.