United States v. Johnson, Donnie

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 1, 2006
Decided May 25, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3156 Appeal from the United States
District Court for the Northern
UNITED STATES OF AMERICA, District of Indiana, Hammond
Plaintiff-Appellee, Division
v. No. 02 CR 00019
DONNIE-JOHNSON, Rudy Lozano, Judge.
Defendant-Appellant.
ORDER
Donnie Johnson, a felon, was driving his van in Gary when a police officer
pulled over his vehicle. After observing Johnson acting suspiciously, the officer
arrested him and eventually discovered a .22 caliber pistol hidden underneath a
towel in the van. A jury in the Northern District of Indiana convicted Johnson of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Johnson appeals, arguing the district court erred in admitting certain evidence. We
affirm.
No. 05-3156 Page 2
I
The parties largely agree on the facts of this case. Gary Police Officer Willie
McElmore conducted a traffic stop of Donnie Johnson’s van on August 6, 2001. After
approaching the van, Officer McElmore asked Johnson, the driver and sole
occupant, for his driver’s license. Officer McElmore recognized Johnson and believed
that an arrest warrant had been issued for him. After returning to his squad car,
Officer McElmore called on the police department dispatch for further information
about Johnson and noticed that the van was rocking back and forth. Johnson had
left the front seat, and there was movement in the middle part of the van. Upon
receiving a report that Johnson had an outstanding arrest warrant, Officer
McElmore arrested Johnson and searched the van, finding a loaded .22 caliber
handgun underneath a white towel under the rear seat on the driver’s side. The
revolver had a pearl handle covered by black electrical tape, but did not yield any
prints. Johnson explained to Officer McElmore that the gun belonged to his
girlfriend, not him. The next day, Johnson gave a statement to Detective Sarita
Titus of the Gary police that his girlfriend had left the gun in his van when she
used the van (the night before the stop) to move.
At trial, Mary Johnson,1 Johnson’s on-again, off-again girlfriend, explained
that she lived with Johnson intermittently from November 2000 through May 2001,
and she owned two handguns, which she kept in her dresser. She described one of
the guns as a pearl-handled .22 caliber revolver and later identified a picture of the
gun recovered from the van as appearing similar to her revolver, except the gun
from the van had black tape on the handle. At several points during their
relationship, Johnson asked to borrow her revolver, a request that she refused. The
last time she had seen the gun was on New Year’s Eve of 2001 when her son,
Ishmell, had used it and warned her that it misfired. She confirmed that she had
borrowed Johnson’s van before the traffic stop to move pieces of personal property,
including her dresser, to a new address, but she noted that the contents of her
dresser remained intact during the move. Perhaps most significantly, Mary testified
that Johnson asked her to lie for him and tell the police that she had left the gun in
the car.
The government did not rely on Mary’s testimony alone. Her son, Ishmell,
testified as well and explained that he had seen Johnson with the revolver in May
of 2001. Several witnesses also detailed Johnson’s extremely fastidious nature
1
While Mary Johnson and Donnie Johnson share a common last name, they are related
by neither blood nor marriage.
No. 05-3156 Page 3
about keeping his van spic-and-span. According to Johnson’s nephew, for example,
Johnson was a fanatic about keeping the van clean.
The government also introduced evidence of Johnson’s participation in a
similar incident in Alabama a few months after the Indiana arrest. In Alabama,
Johnson led the police on a chase and shoot-out using a gun he had taken from
Mary without her permission. Unsuccessful in eluding capture, Johnson told the
police that the gun he had used belonged to his girlfriend. The government, aware
that the story told in its entirety might inflame the jury, sought only to introduce
evidence that police stopped Johnson and he offered a similar excuse for the
presence of the gun as the one used in Indiana. Johnson objected under Federal
Rule of Evidence 404(b), claiming this would be evidence of his propensity to
commit a crime and that the evidence was unfairly prejudicial. The government
responded that the evidence would show knowledge or absence of mistake or
accident on Johnson’s part. The district court sided with the government and
allowed limited testimony by Mary and Alabama officers about the incident,
deleting any reference to the chase or shooting. The jury eventually returned a
guilty verdict against Johnson, who received a sentence of 275 months’
imprisonment because he was sentenced as a career criminal. Johnson appeals his
conviction.
II
Johnson’s sole claim on appeal is that the district court erred by introducing
the limited evidence of the Alabama incident, which had an injurious effect on his
defense. We review a district court’s evidentiary rulings for abuse of discretion. See
United States v. Gellene, 182 F.3d 578, 595 (7th Cir. 1999). Rule 404(b) of the
Federal Rules of Evidence provides that evidence of prior crimes, wrongs or acts is
admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident,” but not to prove a defendant’s character
in order to show he acted in conformity with the charged offense. Fed. R. Evid.
404(b); see also United States v. Macedo, 406 F.3d 778, 792 (7th Cir. 2005); United
States v. Best, 250 F.3d 1084, 1090 (7th Cir. 2001). We review the admissibility of
evidence under a four-part test considering whether:
(1) the evidence is directed toward establishing a matter in issue other than
the defendant’s propensity to commit the crime charged, (2) the evidence
shows that the other act is similar enough and close enough in time to be
relevant to the matter in issue, (3) the evidence is sufficient to support a jury
finding that the defendant committed the similar act, and (4) the probative
No. 05-3156 Page 4
value of the evidence is not substantially outweighed by the danger of unfair
prejudice.
Macedo, 406 F.3d at 793; United States v. Joseph, 310 F.3d 975, 978 (7th Cir. 2002).
Regarding the last issue, “we have repeatedly held that evidence is unfairly
prejudicial only if it will ‘induce the jury to decide the case on an improper basis,
commonly an emotional one, rather than on the evidence presented.’” United States
v. Conley, 291 F.3d 464, 473 (7th Cir. 2002). As before the district court, Johnson
challenges only the first and fourth prongs of this framework.
The district court did not abuse its discretion when it admitted the evidence
of the Alabama incident. Johnson’s defense rested on the theory that the presence
of the revolver in the van was a mistake or an accident and that he had no
knowledge that it was there. After being tracked down by the Alabama police,
Johnson offered the same explanation for the presence of the gun there—Mary had
accidentally left a gun in his van. The evidence was not admitted to establish
Johnson’s propensity to illicitly possess firearms but to show the unlikelihood that
such an accident or mistake happened twice in the span of a few months. The
testimony involved similar acts that were close in time. Moreover, the highly
probative value of this evidence outweighed any unfair prejudice, which the district
court further reduced by curtailing the description of the Alabama incident to a
simple traffic stop, rather than a gun-fight and chase.
We pause briefly to note that, even if the introduction of the Alabama
evidence constituted some violation of Rule 404(b), the error was harmless. See
Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.”). “Error is rendered harmless when
it is clear beyond a reasonable doubt that a rational jury would have convicted
defendants absent the erroneously admitted evidence.” United States v. Brown, 250
F.3d 580, 586 (7th Cir. 2001). In this case, the jury had sufficient evidence to
support Johnson’s conviction. Officer McElmore observed Johnson rustle around in
the middle of the van, and the officer subsequently recovered the gun from that
general area. His girlfriend testified that the gun did not slip out of her dresser
when she moved and that Johnson asked her to lie for him. Her son stated that
Johnson had the gun in May 2001, and several witnesses confirmed that Johnson
kept his van extremely clean, further diminishing the possibility that the gun was
underneath the towel by accident. In short, even in the absence of the evidence of
the Alabama incident, a reasonable jury would have convicted Johnson based on the
other evidence.
III
No. 05-3156 Page 5
Donnie Johnson kept firearms in his van despite being a felon and was
caught doing so in Indiana. The district court properly admitted evidence of his
possession of a gun in Alabama and his subsequent explanation, which pinned the
problem on his girlfriend, to show that the Indiana incident was not merely an
unfortunate event concomitant to a move. The judgment of the district court is
AFFIRMED