Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^** 

Raphael Rhamon Johnson appeals his conviction, following a jury trial, for armed robbery, assault with intent to commit robbery, and assault with a dangerous weapon, in violation of 18 U.S.C. §§ 2111, 113(b), and 113(c). Johnson contends that (1) the district court erred in admitting in evidence a composite sketch of him, and (2) the evidence is insufficient to support his conviction. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

* Johnson contends that the district court abused its discretion by admitting in evidence a composite sketch of him. Johnson argues that the sketch was irrelevant, confusing, and unduly prejudicial, and therefore should have been excluded under Fed.R.Evid. 403. This contention is meritless.

We review the district court's decision to admit the sketch "with considerable deference." United States v. Layton, 855 F.2d 1388, 1402 (9th Cir. 1988), cert. denied, 109 S. Ct. 1178 (1989). " 'The Rule 403 weighing process--that of balancing the probative value of the proffered evidence against its potential for unfair prejudice or confusion of the issues--is primarily for the district court to perform.' " Id. (quoting United States v. Layton, 767 F.2d 549, 553 (9th Cir. 1985)).

Felicia Baker, the robbery victim, had worked closely with Johnson for two months. Baker testified that she immediately recognized Johnson as the robber by his eyes, his size, and the way he stood. Moreover, when the robber told Baker several times to "lay face down," she recognized Johnson's voice. The composite sketch was drawn by investigating agents based on Baker's prior knowledge of Johnson's appearance. Thus, the sketch was relevant as an identification of the robber and it was probative of Baker's familiarity with Johnson's appearance.

Johnson argues that the sketch was confusing and unduly prejudicial because it did not represent the appearance of the robber on the night of the robbery. Indeed, Baker testified that the robber wore a bandana over the lower half of his face and a cap on his head, that the robbery took place at night in a dimly lit parking lot and that she was concentrating on the assailant's gun during the robbery. These facts, however, go only to the weight and credibility of Baker's identification of Johnson as the robber, not to the admissibility of the composite sketch. Baker also testified several times that she recognized Johnson from the start of the robbery and that the composite sketch was drawn from her overall knowledge of Johnson's appearance, not on her view of him that night. The credibility of Baker's testimony was an issue for the jury to decide.

Therefore, the district court did not abuse its broad discretion by admitting the sketch and concluding that its probative value outweighed its prejudicial effect under Fed.R.Evid. 403. See Layton, 855 F.2d at 1402.

II

Johnson contends that the evidence is insufficient to support his conviction. This contention is meritless.

We review the sufficiency of the evidence, despite an unrenewed motion for acquittal, to prevent a manifest miscarriage of justice or for plain error. United States v. Ramirez, 880 F.2d 236, 238 (9th Cir. 1989); United States v. Patton, 771 F.2d 1240, 1243 (9th Cir. 1985). We review the evidence in the light most favorable to the government and the conviction must be affirmed if any rational jury could find the essential elements of the crime beyond a reasonable doubt. Patton, 771 F.2d at 1243.

Here, Baker identified Johnson as the robber. Baker had worked closely with Johnson and testified that she recognized him as the robber immediately. Baker further testified that when the robber spoke to her, she recognized Johnson's voice. The evidence also showed that shortly after the robbery, Johnson went to the airport, and purchased a one-way ticket to Chicago for $322 in cash. The gun used in the robbery was found in a field in the direction that the robber had run after the robbery. The gun belonged to Johnson's neighbor. Johnson had seen his neighbor's gun collection and had been in his neighbor's apartment several hours before the robbery. Finally, Johnson had a motive to commit the robbery and had discussed previously how easy it would be to carry out a robbery in this specific manner.

Thus, the jury's verdict is supported by substantial evidence and does not constitute plain error. See Ramirez, 880 F.2d at 238; Patton, 771 F.2d at 1243.

AFFIRMED.