United States v. Mark G. Perry

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12087 ELEVENTH CIRCUIT
NOVEMBER 9, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00121-CR-F-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK G. PERRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 9, 2009)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Mark G. Perry appeals his convictions for assault with the intent to rob a
postal clerk, in violation of 18 U.S.C. § 2114(a), and assault on a government
employee engaged in the performance of official duties, in violation of 18 U.S.C.
§ 111. Perry was convicted following a jury trial. On appeal, Perry argues that the
district court erred in admitting evidence of his prior conviction for sexual assault,
and submits also that there was insufficient evidence for the jury to find him guilty.
For the following reasons, we affirm the judgment of the district court.
I.
Perry was indicted for robbing and assaulting a postal clerk in Newton,
Alabama the day after Christmas 2006. At trial the government sought to introduce
evidence of Perry’s state conviction for a sexual assault that occurred a little later
that same day in Dothan, Alabama, approximately fourteen miles away. The
government argued that the facts of Perry’s conviction for sodomy in Dothan
demonstrated identity, modus operandi, intent, and absence of mistake under
Federal Rule of Evidence 404(b) that were relevant to the issue of Perry’s guilt in
the Newton attack. The evidence was particularly important for the government’s
case because the investigation had failed to locate fingerprints, DNA, or other
physical evidence placing Perry in the Newton post office. The similar-act
evidence would support the victim’s identification of her assailant.
The district court admitted the Rule 404(b) evidence as relevant to identity
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after finding “extraordinary” similarities between the two incidents: a lone female
employee attacked in a place of business, after a similarly dressed assailant entered
on a pretext and remained within; the assailant remained calm as he bound his
victim with duct tape and sexually assaulted her. The district court instructed the
jury that it was to consider evidence of the second assault for the limited purpose
of considering the identity of the post office assailant. On appeal Perry raises two
issues: first, that admission of the second assault was unfairly prejudicial under
Federal Rule of Evidence 403, and second, that insufficient evidence supported
Perry’s conviction. We address each in turn.
II.
Perry argues that the unfair prejudice of the evidence of his prior sexual
assault conviction outweighed its probative value. He further asserts that during the
trial, the district court abused its discretion by allowing multiple witnesses to
testify to details of the sexual assault crime, which essentially resulted in a retrial
of the prior crime that inflamed the jury into finding him guilty.
We review a district court’s rejection of a Rule 403 challenge for abuse of
discretion. United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir. 2003). This
standard requires that we defer to the district court’s holdings unless they are
“manifestly erroneous.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir.
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2005).
Rule 403 provides that relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.
Exclusion under Rule 403 is “an extraordinary remedy which the district court
should invoke sparingly.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir.
2003) (internal quotation omitted). Furthermore, when reviewing a ruling under
Rule 403, the balance is in favor of admissibility, and we should “look at the
evidence in a light most favorable to its admission, maximizing its probative value
and minimizing its undue prejudicial impact.” Id. Also, instructions to the jury may
mitigate or even cure the unfair prejudice, if any, caused by the admission of some
evidence. See United States v. Spoerke, 568 F.3d 1236, 1251 (11th Cir. 2009).
To be admissible, Rule 404(b) evidence must (1) be relevant to an issue
other than the defendant’s character; (2) sufficiently prove that the defendant
committed the extrinsic act; and (3) not create undue prejudice that substantially
outweighs its probative value, and or violate the other requirements of Rule 403.
United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). Perry concedes the
first two prongs of Delgado and raises only the issue of unfair prejudice.
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Viewing the evidence in the light most favorable to admission, Dodds, 347
F.3d at 897, the district court did not commit reversible error by admitting the
evidence of Perry’s sodomy conviction. The test is not whether evidence is
prejudicial, but rather whether any unfairness of the prejudice substantially
outweighs the probative value of the proffered evidence. As the district court
noted, the facts of the Dothan attack were highly probative. The attacks took place
within minutes of each other, a few miles apart. The assailants dressed similarly,
isolated their victims in the same calculated way, bound them with duct tape, and
calmly assaulted them. At the same time, the district court did not admit all
evidence of the Dothan attack wholesale. The exclusion of numerous proffered
photographic exhibits of the Dothan attack, and the limit on witness testimony,
showed that the district court balanced the probative and prejudicial aspects of the
evidence piece by piece. This same balancing is apparent in the district court’s
exclusion of evidence of Perry’s 1991 conviction for robbing a Daleville Domino’s
Pizza, which Perry entered claiming he was a Domino’s employee who needed to
use the phone. These rulings show the district court carefully followed the
requirements of Rules 403 and 404(b). Under the abuse of discretion standard,
these rulings are defensible and fail to reach Rink’s requirement for “manifestly
erroneous” decisions to admit evidence.
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III.
Perry next argues that there was insufficient evidence for the jury to convict
him. Perry asserts that the victim’s identification of him was unreliable due to
extenuating circumstances at the time the crime was committed and flaws in the
investigative process. He also asserts that the record demonstrates that it was
physically impossible for him to have committed the crime, and emphasizes that
there was no physical evidence connecting him to the crime.
The inquiry into the sufficiency of the government’s evidence produced at
trial is a question of law subject to de novo review. Spoerke, 568 F.3d at 1244. In
reviewing the sufficiency of the evidence, we ask whether, after viewing the
evidence in the light most favorable to the prosecution, with all reasonable
inferences and credibility choices made in the government’s favor, a reasonable
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Id. We will not disturb a guilty verdict unless “no trier of fact
could have found guilt beyond a reasonable doubt.” United States v. Yost, 479 F.3d
815, 818–19 (11th Cir. 2007) (internal quotation omitted).
Witness credibility is the “sole province” of the jury. United States v.
Hamaker, 455 F.3d 1316, 1334 (11th Cir. 2006). Moreover, only the jury has the
responsibility to weigh and resolve conflicts in the evidence. United States v. Tagg,
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572 F.3d 1320, 1325 (11th Cir. 2009) (quoting United States v. Pearson, 746 F.2d
787, 794 (11th Cir.1984)). “[T]he jury’s verdict will not be disturbed on appeal
unless the testimony is ‘incredible as a matter of law.’ Testimony is only
‘incredible’ if it relates to ‘facts that the witness could not have possibly observed
or events that could not have occurred under the laws of nature.’” United States v.
Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (internal citations omitted), petition
for cert. filed, (U.S. Sept. 25 and Sept. 28, 2009) (09-6730 and 09-6821).
To obtain a conviction under 18 U.S.C. § 2114(a), as charged here, the
government must establish, beyond a reasonable doubt, that (1) the defendant
assaulted a postal worker who had lawful charge, custody, or control of money or
other property of the United States; and (2) the defendant did so with intent to rob,
steal, or purloin that property. 18 U.S.C. § 2114(a). To obtain a conviction under
18 U.S.C. § 111, the government must establish, beyond a reasonable doubt, that
(1) the defendant forcibly assaulted the person described in the indictment; (2) the
person assaulted was a federal officer, then engaged in the performance of an
official duty or on account of her official duties, as charged; and (3) that the
defendant acted knowingly and willfully. See United States v. Martinez, 486 F.3d
1239, 1243, 1246 (11th Cir. 2007) (holding that the district court, by using the
elements set forth above, instructed the jury properly).
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Looking at the evidence in the light most favorable to the government,
Spoerke, 568 F.3d at 1244, we conclude there is sufficient evidence to sustain
Perry’s conviction. The victim’s account of the assault and her identification of
Perry was the crux of the government’s case. Perry was able to cross-examine the
victim regarding her perceptions at the post office, her work with the police sketch
artist, and her identification of Perry from the photo lineup. Moreover, Perry
presented an expert witness who testified as to the problems of in-person
identifications made under stress, and identifications made between people of
different races. These evaluations of witness credibility, perception, and memory
are matters for the jury. Perry also was able to challenge the government’s account
regarding the length of time it took to travel from Newton to Dothan, and the color
of the vehicles driven by the assailants. The lack of physical evidence by itself
does not entitle Perry to acquittal. A reasonable jury could have weighed the
competing accounts and found Perry guilty beyond a reasonable doubt based on
the evidence presented.
IV.
The district court did not abuse its discretion by admitting evidence of
Perry's prior conviction for sexual assault. Additionally, the jury had sufficient
evidence upon which to find Perry guilty of both counts beyond a reasonable
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doubt. The judgment of the district court is AFFIRMED.
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