United States v. Marvin Davis ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4089
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN ORLANDO DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00051-CCE-2)
Submitted: October 28, 2014 Decided: November 10, 2014
Before MOTZ, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, T. Nick Matkins, Special Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Marvin Orlando Davis of carjacking,
in violation of 18 U.S.C. §§ 2119(1), 2 (2012), and of carrying
and using by brandishing a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii), 2 (2012). On appeal, Davis claims that (1)
there was insufficient evidence to support his carjacking
conviction * and (2) the district court erred in admitting
portions of the testimony of one witness. Finding no error, we
affirm.
I.
A person is guilty of carjacking if the Government
proves beyond a reasonable doubt that the person: “(1) with
intent to cause death or serious bodily harm (2) took a motor
vehicle (3) that had been transported, shipped or received in
interstate or foreign commerce (4) from the person or presence
of another (5) by force and violence or intimidation.” United
States v. Blake, 571 F.3d 331, 351 (4th Cir. 2009) (internal
quotation marks omitted).
*
Davis addresses only the carjacking conviction in his
brief, and we limit our analysis to that offense.
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A.
Davis asserts that the testimonial evidence was
insufficient to support his carjacking conviction. We review
challenges to the sufficiency of evidence de novo. United
States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). “The jury’s
verdict must be upheld on appeal if there is substantial
evidence in the record to support it, where substantial evidence
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. Perry, 757
F.3d 166, 175 (4th Cir. 2014) (emphasis and internal quotation
marks omitted). In considering whether there is substantial
evidence to support a conviction, we must “view[] the evidence
and the reasonable inferences to be drawn therefrom in the light
most favorable to the Government.” Id. (internal quotation
marks omitted).
Evidence at trial included testimony from Addison
Woods (the victim), Misty Neese (a witness), a cellblock mate of
Davis’s, and Larry Byrnes (a Honda employee familiar with
vehicle identification numbers). Woods testified that Davis and
Adam Bradley entered a room occupied by Woods and Neese.
Bradley, while holding a pistol, demanded Woods’s car keys.
When Woods did not comply, Bradley struck Woods in the head with
the pistol, causing Woods to surrender his keys. Davis searched
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Woods’s pockets and took Woods’s wallet. Davis and Bradley
exited the house and used Woods’s keys to operate Woods’s car.
According to Woods, Davis willingly participated in the offense.
Neese corroborated Woods’s testimony. According to
Neese, Bradley and another man entered her room, and Bradley
struck Woods in the head with a pistol. The man with Bradley
then searched Woods’s pockets, taking Woods’s wallet. Although
unable to identify Davis as the man with Bradley, Neese
testified that that man willingly participated in the offense.
The testimony of Davis’s cellblock mate also
corroborated Woods’s version of events. This witness was a
long-term acquaintance of Davis’s and was confined with Davis
for three months. He testified that Davis admitted planning the
theft of Woods’s vehicle, including Bradley’s possession of the
pistol. The witness’s testimony included details of the offense
similar to those provided by Woods and Neese.
Finally, Byrnes testified that, based on its vehicle
identification number, Woods’s car was made in Ohio.
This testimony provided the jury with ample evidence
to conclude that Davis was guilty of carjacking. Davis’s claim
that the witnesses were not credible fails, as “the jury, not
the reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented, and if the
evidence supports different, reasonable interpretations, the
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jury decides which interpretation to believe.” United States v.
Wilson, 484 F.3d 267, 283 (4th Cir. 2007) (internal quotation
marks omitted). While Davis argues he merely borrowed Woods’s
car, the evidence that Bradley struck Woods in the head with a
pistol and Davis took Woods’s wallet supports the jury’s verdict
of carjacking. Davis’s argument that he intended to return the
car is unpersuasive because intent to permanently deprive the
victim of his vehicle is not an element of carjacking. United
States v. Payne, 83 F.3d 346, 347 (10th Cir. 1996); United
States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996). Finally, the
trial testimony contradicts Davis’s argument that Bradley
coerced him into stealing Woods’s car, and a jury may rely
entirely on circumstantial evidence to assess a defendant’s
intent. See United States v. Ibisevic, 675 F.3d 342, 353 (4th
Cir. 2012). Accordingly, Davis fails to sustain his heavy
burden of demonstrating that the testimonial evidence was
insufficient to support his conviction for carjacking.
B.
Next, Davis asserts that the fourth element of the
carjacking statute, taking the car “from the person or presence
of another,” is satisfied only if the victim is in or
immediately next to his vehicle when the vehicle is taken.
Where we interpret the elements of a criminal statute, the
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question is one of law that we review de novo. United States v.
Ryan-Webster, 353 F.3d 353, 359 (4th Cir. 2003).
Every circuit to have considered this argument has
concluded that the carjacking statute does not require that the
victim be in or immediately beside his car, and has found
sufficient evidence where the victim is in a building when his
car keys are forcibly taken from him and his car is parked
nearby. See United States v. Casteel, 663 F.3d 1013, 1019-20
(8th Cir. 2011) (collecting cases). The circuits have reached
this conclusion by applying some version of the following
principle: “A motor vehicle is in the presence of the victim if
it is so within his or her reach, inspection, observation, or
control that he or she could, if not overcome by violence or
prevented by fear, retain possession of it.” United States v.
Soler, 759 F.3d 226, 235 (2d Cir. 2014). Applying this
principle to the facts of this case, we can easily conclude that
the evidence satisfies the “presence” element.
II.
Davis next contends that the district court erred in
admitting two portions of testimony. First, Davis challenges
the district court’s admission of testimony that Davis hatched a
plan to bribe Woods with drugs in exchange for Woods dropping
the charges, citing Fed. R. Evid. 404(b) and 403. As Davis
preserved his objections, we review the district court’s
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admissibility determination for abuse of discretion. United
States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010).
“Rule 404(b) prohibits evidence of other crimes or bad
acts committed by the defendant if offered solely to prove a
defendant’s bad character, but such evidence may be admissible
for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” United States v. Moore, 709 F.3d 287, 295
(4th Cir. 2013) (internal quotation marks omitted). As Rule
404(b) is inclusive in nature, this list “is not exhaustive,”
and evidence may be admitted for other purposes so long as the
evidence does not tend to prove only criminal disposition.
United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009).
Evidence admitted under Rule 404(b) must be “reliable,” United
States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004), and its
probative value must not be outweighed by unfair prejudice, Fed.
R. Evid. 403.
A defendant’s plan to intimidate or influence a
government witness demonstrates the defendant’s consciousness of
guilt and shows that the defendant knows “his case is a weak or
unfounded one.” United States v. Van Metre, 150 F.3d 339, 352
(4th Cir. 1998) (internal quotation marks omitted). Davis’s
plan to bribe Woods undermined Davis’s defense that he borrowed
Woods’s car. As Davis’s cellblock mate provided specific
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details of the offense and had known Davis for years, the
testimony was reliable. Nor is the probative value of this
evidence outweighed by any danger of unfair prejudice under Rule
403. Evidence of a defendant’s consciousness of guilt is
“highly probative” and, although “undoubtedly prejudicial,” not
unfairly so. See United States v. Lentz, 524 F.3d 501, 525-26
(4th Cir. 2008) (finding no abuse of discretion where district
court admitted evidence of defendant’s plan to kill adverse
witness). Accordingly, the district court did not abuse its
discretion by admitting this evidence.
Second, Davis challenges testimony that Davis planned
to cry on the witness stand in order to gain juror sympathy. At
trial, Davis objected on relevancy and Rule 403 grounds.
Evidence is “relevant” if it “has any tendency to make a fact
more or less probable than it would be without the evidence” and
“the fact is of consequence in determining the action.” Fed. R.
Evid. 401(a)-(b). Davis’s plan to cry on the stand tends to
prove his consciousness of guilt, and thus is relevant. The
district court did not abuse its discretion in overruling
Davis’s objections.
Finally, and for the first time on appeal, Davis
argues that evidence of his plan to cry on the stand was
inadmissible under Rule 404(b). Where a defendant fails to
preserve a ground for objection, we review the district court’s
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admission of evidence for plain error. United States v. Zayyad,
741 F.3d 452, 459 (4th Cir. 2014). Given the weight of the
other evidence and the limited focus placed on the disputed
evidence, Davis has not shown that admission of the evidence was
error, much less plain error, under Rule 404(b).
III.
Accordingly, we affirm Davis’s conviction. 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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