United States v. Himes ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4033
VINCENT LEE HIMES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James C. Turk, District Judge; Glen M. Williams,
Senior District Judge.
(CR-96-18-A)
Submitted: October 31, 1997
Decided: December 16, 1997
Before LUTTIG and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appel-
lant. Robert P. Crouch, Jr., United States Attorney, Rick A. Mount-
castle, Assistant United States Attorney, Abingdon, Virginia; Thomas
E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Vincent Lee Himes appeals his conviction for possession of a fire-
arm by a convicted felon, in violation of 18 U.S.C.§ 922(g)(1)
(1994), and for receiving a stolen firearm transported in interstate
commerce, in violation of 18 U.S.C. § 922(j) (1994). We affirm.
The evidence at trial showed that in October 1995, Himes and two
friends, Larry Crumley and Jason Worley, drove to an apartment
complex in Bristol, Virginia, and broke into three parked cars. Himes
stole stereo equipment from two of the cars and a duffle bag from the
third car. When Himes looked in the duffle bag, he found a .22 caliber
pistol. After determining that the pistol was unloaded he handed it to
Worley, who later sold the gun.
In November 1995, Himes, Crumley, and Angela Trinkle drove to
the United Parcel Service parking lot in Bristol, Virginia, and broke
into a jeep but found nothing worth stealing. Himes then broke into
a pickup truck and stole a shotgun and ammunition. Himes placed the
shotgun in the backseat of his car and drove to a nearby store. On the
way, a police officer stopped Himes for a traffic violation and found
the shotgun in the backseat. Himes told the police officer that the
shotgun belonged to his brother. The officer seized the shotgun. On
the following day, Himes instructed Crumley to go the police station
and claim the shotgun.
The Government also presented evidence that Himes possessed and
transferred other firearms and was involved in prior vehicle break-ins.
Jason Worley testified that in July or August 1995, he and Himes
broke into a truck at an apartment complex and stole stereo equip-
ment. Worley also testified that prior to the October 1995 incident,
Himes offered to sell him a .22 caliber pistol. Larry Crumley testified
that Himes sold him a handgun in 1995. He also testified that he saw
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Himes with two different .22 caliber pistols before the October 1995
incident and that Himes had stolen a gun from a police officer's car.
Several other witnesses testified that they saw Himes with other guns
and Himes had offered to sell those guns. Himes objected to the evi-
dence and the court instructed the jury that the evidence was being
permitted to show a pattern of conduct. Himes did not object to the
instruction.
On appeal, Himes asserts that the district court erred by admitting
Fed. R. Evid. 404(b) evidence at trial. We review the district court's
decision to admit Fed. R. Evid. 404(b) evidence for abuse of discre-
tion, and we will not reverse that decision unless it was "``arbitrary
and irrational.'" See United States v. Chin , 83 F.3d 83, 87 (4th Cir.
1996) (quoting United States v. Powers, 59 F.3d 1460, 1464-65 (4th
Cir. 1995), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3485 (U.S. Jan.
16, 1996) (No. 95-6391)). Rule 404(b) permits evidence of other
crimes, wrongs, or acts to prove motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or accident.
Evidence which has no purpose except to show criminal disposition
is excluded. See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir.
1997). Thus, the court may admit any evidence which is relevant to
any issue other than character, is necessary, and is reliable. Id. (quot-
ing United States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991)). Such
evidence may be excluded, however, if it is more prejudicial than pro-
bative. Sanchez, 118 F.3d at 196.
The record shows that the evidence of Himes's prior acts was not
used solely to show bad character, but rather, to show motive. Himes
had a financial interest in acquiring firearms. Further, the evidence
showed that Himes's possession of the firearms was not the result of
a mistake or accident. See Sanchez, 118 F.3d at 195-96. The evidence
of previous car break-ins showed a pattern of action and modus ope-
randi. See id. Himes fails to show that the probative value of the evi-
dence of other gun possessions and car break-ins was outweighed by
the prejudicial effect of the testimony. See Fed. R. Evid. 403;
Sanchez, 118 F.3d at 196. Further, any possible prejudice was mini-
mized by the court's instruction that the evidence could be considered
only to show a pattern of conduct, and that the jury was to concern
itself with "the actual guns and the actual stolen property that's
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involved in these indictments." (J.A. 262). See United States v.
Teague, 737 F.2d 378, 381 (4th Cir. 1984).
Himes also asserts that the evidence was insufficient to sustain
count five of the indictment, charging Himes with the possession,
receipt, and disposal of a stolen firearm, because the evidence did not
show that he disposed of the weapon. To sustain a conviction, the evi-
dence viewed in the light most favorable to the Government must be
sufficient for a rational jury to find the essential elements of the crime
beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60,
80 (1942); United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.
1993). When a jury returns a verdict on an indictment that charges
several acts in the conjunctive, the verdict stands if the evidence is
sufficient with respect to any act. See Griffin v. United States, 502
U.S. 46, 56-57 (1991) (quoting Turner v. United States, 396 U.S. 398,
420 (1970). Under 18 U.S.C. § 922(j), it is unlawful "for any person
to receive, possess, conceal, store, barter, sell, or dispose of any stolen
firearm" in interstate commerce knowing that the firearm has been
stolen. The firearm in question was the shotgun stolen in November
1995 from the truck in the UPS parking lot. The evidence showed that
Himes possessed and received the shotgun when he took it from the
truck he had broken into. Thus, even if Himes did not dispose of the
weapon, his conviction must stand because the evidence is sufficient
to show that Himes received and possessed the weapon.
Accordingly, we affirm Himes's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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