US v. Marvin Davis, No. 14-4089 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4089 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARVIN ORLANDO DAVIS, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 §§ 924(c)(1)(A)(ii), 2 (2012). there was conviction * insufficient and (2) the violation of 18 U.S.C. On appeal, Davis claims that (1) evidence district to support court portions of the testimony of one witness. his erred in carjacking admitting 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 brief, and we limit our analysis to that offense. 2 in his A. Davis asserts that the testimonial evidence insufficient to support his carjacking conviction. challenges to the sufficiency of evidence de was We review novo. United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). “The jury’s verdict substantial must be upheld on appeal if there is 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 vehicle identification numbers). Adam Bradley Bradley, while entered holding a room a employee familiar with Woods testified that Davis and occupied pistol, by demanded Woods Woods’s and car Neese. keys. When Woods did not comply, Bradley struck Woods in the head with the pistol, causing Woods to surrender his keys. 3 Davis searched 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. unable to identify Davis as the man with Although Bradley, Neese testified that that man willingly participated in the offense. The corroborated testimony Woods’s of version Davis’s of cellblock events. This mate witness also 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 4 interpretations, the 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 United v. Payne, 83 F.3d 346, 347 (10th Cir. 1996); States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996). trial testimony coerced him into contradicts stealing Davis’s Woods’s car, burden of demonstrating that fails the to a may rely See United States v. Ibisevic, 675 F.3d 342, 353 (4th Davis assess jury intent. Accordingly, to a Bradley on 2012). evidence and that entirely Cir. circumstantial argument Finally, the defendant’s sustain testimonial his heavy 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,” immediately Where we is next satisfied to interpret his the only vehicle elements 5 if the victim when the vehicle of a criminal is is in or taken. statute, the 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). this conclusion principle: by applying some The circuits have reached version of the following “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.” Soler, 759 F.3d 226, 235 (2d Cir. 2014). United States v. 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. preserved his objections, we review 6 the district As Davis court’s 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 7 mate provided specific details of the offense and testimony was reliable. had known Davis for years, the 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 witness). evidence of defendant’s plan to kill adverse 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. trial, Davis objected on relevancy and Rule 403 At 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.” Evid. 401(a)-(b). Fed. R. Davis’s plan to cry on the stand tends to prove his consciousness of guilt, and thus is relevant. district court did not abuse its discretion in The overruling Davis’s objections. Finally, argues that inadmissible and evidence under for of Rule the his first plan 404(b). time to cry Where a on on appeal, the defendant Davis stand fails was to preserve a ground for objection, we review the district court’s 8 admission of evidence for plain error. United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014). other evidence and the limited Given the weight of the 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, dispense with contentions are oral we affirm argument adequately Davis’s because presented in the the conviction. facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 9

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