United States v. Tenorio , 312 F. App'x 122 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
February 13, 2009
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-2076
v.
(D.C. No. 1:07-CR-01865-WJ-1)
(D.N.M.)
RODNEY PAUL TENORIO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McCONNELL, Circuit Judge.
Rodney Paul Tenorio was arrested after arriving at his ex-girlfriend
Stephanie Mojica’s house in violation of a restraining order. Responding officers
found a 12-gauge shotgun and several boxes of ammunition in Mojica’s car, and
Mojica told them these belonged to Tenorio. Tenorio was charged with
possessing a firearm and ammunition as a felon, in violation of 18 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
§§ 922(g)(1) and 924(a)(2), and possession of the same as a person subject to a
restraining order, in violation of §§ 922(g)(8) and 924(a)(2). A jury convicted
him on both counts.
At trial, the district court allowed Mojica to testify about two prior
occasions on which she saw Tenorio with the same gun, including testimony that
he had threatened her on one of these occasions. Tenorio challenges his
conviction, arguing that this testimony was substantially more prejudicial than
probative and the court thus abused its discretion by admitting it. At sentencing,
the district court found that Tenorio had committed New Mexico state felonies of
aggravated assault and aggravated stalking by threatening Mojica with the gun on
a past occasion, and it therefore imposed a sentencing enhancement for possessing
the gun in connection with a felony. Tenorio also challenges this enhancement,
arguing that the district court clearly erred in crediting Mojica’s testimony and
thus, that his sentence is procedurally unreasonable.
We do not see an abuse of the district court’s broad discretion to balance
probative value against possible prejudice under Federal Rules of Evidence 403
and 404(b). Moreover, while we agree that a factfinder might reasonably have
doubted the credibility of Mojica’s testimony, the time for finding sentencing
facts has passed, and we discern no clear error by the court below in crediting her
testimony and imposing the enhancement. Exercising jurisdiction under 28
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U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm Tenorio’s conviction and sentence.
I
On June 18, 2007, Mojica called 911, stating that Tenorio had threatened
her and had a gun. At the time, Tenorio was subject to a restraining order
prohibiting him from contacting Mojica. When a police officer arrived at
Mojica’s home, Tenorio was gone. The officer spoke to Mojica and her
roommate, Jamie Black. They explained that Mojica and Tenorio had argued
after he came to the house to ask her for a ride, and that Tenorio had threatened
her with his fist. Tenorio then grabbed Mojica’s car keys and cell phone, went
outside, and got into her car. The two women followed Tenorio outside. As
Tenorio got into the vehicle, Mojica noticed that he was holding a gun. 1 Black
also reported seeing the shotgun next to Tenorio in the car. Mojica and Black
spotted an Albuquerque Public Schools maintenance vehicle across the street and
borrowed the driver’s phone to call the police. Tenorio became angry, got out of
the car, and left on foot.
The responding officer found a loaded shotgun between the driver’s seat
and the center console of Mojica’s car, several boxes of ammunition on the floor
behind the seat, and a bag of men’s clothing in the back seat, which contained
more ammunition. Mojica told the officer that these items belonged to Tenorio
1
Mojica initially told responding officers that she did not see Tenorio
holding the gun as he got into the car, but testified differently at trial.
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and that Tenorio had threatened her with the same gun in the past. In the
meantime, another officer found and arrested Tenorio, who was still carrying
Mojica’s keys and cell phone. Tenorio consistently denied the gun was his and
claimed it was in the car when he entered it. He was indicted as a felon in
possession and a person subject to a restraining order in possession.
Two months after these events occurred but before Tenorio’s trial, Mojica
gave officers a more detailed account of the past occasions on which she had seen
the gun. First, she stated that she saw the gun in Tenorio’s possession sometime
in April 2007. On that occasion, Tenorio had the gun in the cab of his vehicle
and told Mojica that he needed it for protection. Second, she described seeing the
gun on June 17, the day before her 911 call. On that date, Mojica explained, she
agreed to bring their son to Tenorio’s girlfriend’s apartment to visit him. She and
Tenorio argued, and she decided to leave. After exiting the apartment and putting
their son in his car seat in the back seat of her vehicle, she turned to see Tenorio
behind her holding the gun. Although he did not point the gun at Mojica, Tenorio
said, “You know I could hurt you” and “You know not to mess with me,” then
gestured as if to hit her. Mojica got in the driver’s seat, but before she could
leave, Tenorio took their son from the car seat. Mojica grabbed the child from
him and ran to a friend’s house on foot.
Before trial, Tenorio moved to exclude Mojica’s testimony about the April
and June 17 gun sightings, which the government offered as proof that Tenorio
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possessed the same firearm on prior occasions. Tenorio filed two motions in
limine challenging the testimony as inadmissible prior acts evidence under
Federal Rules of Evidence 403 and 404(b). In response, the government argued
that the evidence was relevant to Tenorio’s intent, motive, knowledge, and
absence of mistake in possessing the firearm and was therefore admissible. The
court allowed the testimony, subject to limiting instructions to be developed at
trial. At trial, Mojica testified regarding the April and June 17 events. Tenorio’s
counsel did not renew an objection to the testimony.
Instructed to consider Tenorio’s prior possession of the firearm “only as it
bears on the defendant’s motive, opportunity, intent, knowledge, absence of
mistake or accident and for no other purpose,” the jury convicted Tenorio on both
counts, and the case proceeded to sentencing. In his presentence report (“PSR”),
Tenorio’s base offense level was calculated at 20 pursuant to § 2K2.1(a)(4)(A) of
the United States Sentencing Guidelines (“Guidelines”), applicable to unlawful
possession of firearms committed by a person previously convicted of a felony
crime of violence or controlled substance offense. 2 The PSR then added four
levels pursuant to § 2K2.1(b)(6) because Tenorio had possessed the gun in
connection with another felony offense, for a final offense level of 24. Finally,
2
Because they were closely related, the PSR grouped the two charges
together and performed a single Guidelines range calculation. See U.S.S.G.
§ 3D1.2. Although the PSR incorrectly listed § 2K2.1(a)(3)(B) as the applicable
Guidelines provision establishing Tenorio’s base offense level, it applied the
correct provision, § 2K2.1(a)(4)(A), to reach a base offense level of 20.
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the PSR calculated a criminal history category of IV. This resulted in an advisory
sentencing range of 77 to 96 months’ imprisonment.
Tenorio filed written objections to these calculations, arguing that no
felony other than possession itself had been proven by a preponderance of the
evidence. Relying upon Mojica’s testimony from trial, the district court
disagreed. Specifically, the court found by a preponderance that Tenorio had
committed two New Mexico felonies on June 17: aggravated assault, N.M. Stat.
§ 30-3-2(A), and aggravated stalking, N.M. Stat. § 30-3A-3.1(A)(3). The court
applied the enhancement and sentenced Tenorio to 96 months’ imprisonment, the
top end of the Guidelines range. U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
Tenorio now appeals his conviction and sentence.
II
A
Tenorio challenges the district court’s decision to admit Mojica’s testimony
that he threatened her on past occasions with the same shotgun he was convicted
of possessing on June 18. We review admission of evidence under Rule 404(b)
for abuse of discretion. United States v. Wilson, 107 F.3d 774, 782 (10th Cir.
1997). When the court’s error goes unpreserved, however, we review only for
plain error. Id.; see Fed. R. Crim. P. 52(b). Tenorio raised a Rule 403 and 404(b)
argument only in his motions in limine and did not contemporaneously object to
Mojica’s testimony during trial. “Generally, a pretrial motion in limine will not
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preserve an objection if the objection is not renewed at the time the evidence is
introduced.” United States v. Nichols, 169 F.3d 1255, 1264 (10th Cir. 1999). But
an exception exists: If “the issue (1) is fairly presented to the district court, (2) is
the type of issue that can be finally decided in a pretrial hearing, and (3) is ruled
upon without equivocation by the trial judge,” we consider the motion in limine
sufficient to preserve the error. Id. (quoting United States v. Mejia-Alarcon, 995
F.2d 982, 986 (10th Cir. 1993)); see Fed. R. Evid. 103(a) (“Once the court makes
a definitive ruling on the record admitting . . . evidence, either at or before trial, a
party need not renew an objection . . . to preserve a claim of error for appeal.”). 3
Applying this exception, we decide that Tenorio’s motions preserved his
objection for appellate review.
First, Tenorio fairly presented the Rule 403 and 404(b) issue in his two
pretrial motions in limine. Assuredly, he raised the precise argument he seeks to
pursue in this appeal: That the probative value of Mojica’s testimony regarding
the two past incidents would be substantially outweighed by its potential for
unfair prejudice. See United States v. Bedford, 536 F.3d 1148, 1157-58 (10th
Cir. 2008). In its response, the government argued that the subject evidence was
more probative than prejudicial because it would illuminate Tenorio’s “intent,
3
Tenorio failed to include his first motion in limine in the appendix he
submitted to this court. Because the motion was before the district court and thus
remains a part of the record on appeal, see Fed. R. App. P. 10(a)(1), we exercise
our discretion in favor of considering the document in our review, Milligan-Hitt
v. Bd. of Trs., 523 F.3d 1219, 1231 (10th Cir. 2008).
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motive, knowledge, and absence of mistake” in possessing the gun.
Second, this issue could be decided fairly prior to trial, as the content of the
proposed testimony was straightforward and was fully and accurately described.
See id. at 1158. Finally, the court unequivocally ruled on the admission of the
challenged evidence, denying the relevant portion of Tenorio’s motions in limine
as follows:
The court shall allow testimony by Ms. Mojica that in April 2007,
she observed the Defendant in possession of the shotgun at issue in
this case [and] that on June 17, 2007 she observed the Defendant in
possession of the shotgun at issue in this case and that the Defendant
threatened Ms. Mojica on June 17, 2007.
See id. (“[T]he court’s decision to admit the testimony was final and
unequivocal.”); cf. Nichols, 169 F.3d at 1265 (concluding that the third Mejia-
Alarcon requirement was not met where “[t]he [district] court reserved ruling on
defense challenges to . . . prosecution experts” until trial (quotation omitted)).
This left for trial only the formulation of appropriate limiting instructions.
Tenorio’s challenge to Mojica’s testimony thus falls under the exception for
errors unraised at trial but preserved through a pretrial motion in limine, and we
apply an ordinary abuse of discretion standard of review.
B
Tenorio contends that Mojica’s testimony amounts to inadmissible evidence
of prior bad acts. Federal Rule of Evidence 404 prohibits such evidence when
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used to show a person’s character and resultant conduct but allows its admission
for other purposes. The Rule provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b). To be admitted thereunder, “(1) the evidence must be
offered for a proper purpose; (2) it must be relevant; (3) its probative value must
not be substantially outweighed by its potential for unfair prejudice under Rule
403; and (4) the court must give a proper limiting instruction, if it is requested by
the defendant.” United States v. Moran, 503 F.3d 1135, 1144 (10th Cir. 2007)
(citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). Tenorio
argues that Mojica’s testimony was substantially more prejudicial than probative
and should have been excluded pursuant to Rule 403. 4
Mojica’s testimony consisted of two primary assertions. First, Mojica
testified that she had seen the subject firearm in Tenorio’s possession on at least
two past occasions. Second, she testified that he had threatened her with the gun
on the day before his crimes of conviction, telling her not to “mess with” him
4
He does not contest that the evidence was offered for a proper purpose,
that it was relevant, or that the court gave a proper limiting instruction. Because
the former two considerations are relevant to the Rule 403 balancing, we
nonetheless discuss them briefly.
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because he could “hurt” her. Because the probative value and potential for
prejudice is different for each, we consider them separately.
1
We begin with Mojica’s assertion that Tenorio had possessed the same gun
in the past, and conclude that the probative value of this testimony was not
substantially outweighed by its potential for unfair prejudice. As the government
explained in its response to Tenorio’s motions in limine, the testimony shows
Tenorio’s motive and knowledge in possessing the weapon on June 18—matters
which may be proven by evidence of past acts under the terms of Rule 404(b).
Moreover, the evidence is relevant: it has a “tendency to make the existence of
any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Fed. R. Evid. 401. If
Tenorio possessed the same gun on past occasions, it is considerably more likely
that the gun still belonged to him at the time it was found in Mojica’s car and
correspondingly less likely that the gun belonged to someone else or was simply
there when he entered. Possession, of course, is the primary element of each of
Tenorio’s two crimes of conviction. See United States v. Jameson, 478 F.3d
1204, 1208-09 (10th Cir. 2007) (“To establish a violation of 18 U.S.C.
§ 922(g)(1), the government had to prove: (1) that Mr. Jameson had previously
been convicted of a felony, (2) that he thereafter knowingly possessed a firearm,
and (3) that such possession was in or affected interstate commerce.”); United
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States v. Reddick, 203 F.3d 767, 771 (10th Cir. 2000) (“Section 922(g)(8) sets
forth the three elements necessary to sustain a conviction: 1) the defendant was
subject to a restraining order issued after a hearing, 2) the defendant thereafter
knowingly possessed a firearm, and 3) the possession was in or affecting
interstate commerce.”).
Balanced against the probative value of Mojica’s testimony is its potential
for prejudice. Even if relevant, evidence may be excluded if its probative value is
substantially outweighed by a danger of unfair prejudice to the defendant. United
States v. Smith, 534 F.3d 1211, 1218 (10th Cir. 2008) (citing Fed. R. Evid. 403).
Evidence is unfairly prejudicial if it “make[s] a conviction more likely because it
provokes an emotional response in the jury or otherwise tends to affect adversely
the jury’s attitude toward the defendant wholly apart from its judgment as to his
guilt or innocence of the crime charged.” Id. at 1219 (quotation omitted).
Evidence of past possession could unfairly prejudice Tenorio by leading the jury
to draw exactly the conclusion Rule 404(b) seeks to avoid—that his prior acts of
weapons possession demonstrate that he has a tendency to possess guns and thus
likely did so on June 18.
Yet, we see no abuse of discretion in the court’s decision to admit the
testimony. The probative value of Mojica’s background knowledge of the weapon
at issue is unquestionable. In particular, the testimony that Tenorio
acknowledged his ownership of the weapon to her in the past made his possession
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on June 18 considerably more likely. And her testimony that he possessed the
gun on the very day before the incident at issue showed that he continued to
possess the weapon in the intervening months. This probative value is not
substantially outweighed by the accompanying danger of prejudice, and thus
admission of the challenged testimony was far from “arbitrary, capricious, or
whimsical.” United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997)
(quotation omitted); see also United States v. Mares, 441 F.3d 1152, 1157 (10th
Cir. 2006) (admissibility of evidence under Rule 404(b) “involves a case-specific
inquiry that is within the district court’s broad discretion” (quotation omitted)).
2
As for the second component of Mojica’s testimony—her allegation that
Tenorio not only possessed the gun in the past, but used it to threaten her—we
reach the same conclusion. Like her testimony regarding possession, this
evidence was offered for a proper purpose. The government contends that the
evidence is relevant because it shows that Tenorio had a motive for bringing the
gun to Mojica’s house on June 18: to intimidate her into allowing him to drive
her car. Given the broad definition of relevance in our evidentiary system, see
Fed. R. Evid. 401, we agree.
As for the danger of unfair prejudice, we agree with Tenorio that this
danger was significant. Mojica’s testimony could lead a jury to conclude that
Tenorio was a threat to her safety, or generally had a violent character towards
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women. See, e.g., United States v. Hands, 184 F.3d 1322, 1329 n.20 (11th Cir.
1999) (“The hoary chestnut ‘When did you stop beating your wife?,’ for example,
might lack some of its illustrative power if the topic of domestic violence did not
produce such visceral reactions.” (quotation omitted)). However, we cannot say
that the district court’s decision to admit the evidence was an abuse of discretion.
The danger of unfair prejudice is partially mitigated by the fact that the jury was
properly shown a restraining order preventing Tenorio from contacting Mojica. 5
Thus, the jury already had a basis to conclude that Tenorio was a threat to her.
Cf. United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004) (“[I]nformation
that the defendant is currently on probation will generally create little or no
prejudicial effect when the jury already knows of the defendant’s criminal
history.”). We cannot say that the probative value of a motive explaining
Tenorio’s gun possession on the day in question was substantially outweighed by
the danger of unfair prejudice. See, e.g., United States v. Morris, 287 F.3d 985,
990-91 (10th Cir. 2002) (holding that the defendant’s statement that he purchased
a gun in order to avoid arrest for a murder was evidence of a motive for
possession, admissible under Rule 404(b) despite great potential for unfair
prejudice). We thus perceive no error in the admission of Mojica’s testimony and
affirm Tenorio’s conviction.
5
The jury was required to see evidence regarding the restraining order
because its existence is an element of an offense under 18 U.S.C. § 922(g)(8).
Reddick, 203 F.3d at 771.
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III
Regarding his sentence, Tenorio argues that the district court erred in
imposing an enhancement to his advisory Guidelines sentencing range. If a
district court errs in calculating this range, the sentence is rendered procedurally
unreasonable. United States v. Scott, 529 F.3d 1290, 1300 (10th Cir. 2008). In
determining whether the district court correctly calculated the range, we review
the district court’s legal conclusions de novo and its factual findings for clear
error. 6 United States v. Sells, 541 F.3d 1227, 1235 (10th Cir. 2008). It is the
government’s burden to prove by a preponderance of the evidence any uncharged
conduct supporting a sentencing enhancement. United States v. Matthews, 942
F.2d 779, 784 (10th Cir. 1991).
Under § 2K2.1(b)(6) of the Guidelines, a four level enhancement applies if
a defendant convicted of being a felon in possession of a weapon did so “in
connection with” another felony. At sentencing, the trial court found by a
preponderance of the evidence that Tenorio committed two New Mexico felonies
on June 17: aggravated assault, N.M. Stat. § 30-3-2(A), and aggravated stalking,
6
Tenorio preserved the alleged error in his objections to the PSR and at
sentencing. See United States v. Mendoza, 543 F.3d 1186, 1195 (10th Cir. 2008)
(noting that a defendant preserves his claims of sentencing error through written
objections to the PSR or an oral objection during the sentencing hearing). Thus,
we apply our ordinary standard of review.
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N.M. Stat. § 30-3A-3.1(A)(3). 7 Thus, the court concluded that Tenorio committed
the June 18 possession offenses “in connection with” a felony, and imposed a
§ 2K2.1 enhancement.
Tenorio’s challenge on appeal is a narrow one. The district court’s findings
were supported solely by Mojica’s testimony, and Tenorio argues that the district
court committed clear error when it stated that her testimony was
“uncontroverted” and when it found her testimony credible. He particularly
objects to the district court’s comment that the jury, like the judge himself, found
Mojica credible. Because the jury sent a note to the judge during deliberations
asking whether it could convict based solely on the conclusion that “the defendant
knowingly sat in a car for several minutes with a gun,” Tenorio asks us to infer
7
Either felony would support application of the enhancement, and Tenorio
does not contest whether the elements of either crime were met by the conduct
alleged in Mojica’s testimony. Aggravated assault is defined as “unlawfully
assaulting or striking at another with a deadly weapon,” N.M. Stat. § 30-3-2(A),
and requires proof that the defendant “threatened or engaged in menacing conduct
with a deadly weapon toward a victim, causing the victim to believe that he or she
was about to be in danger of receiving an immediate battery,” State v. Bachicha,
808 P.2d 51, 54 (N.M. Ct. App. 1991). Aggravated stalking is defined as
“stalking perpetrated by a person . . . in possession of a deadly weapon.” N.M.
Stat. § 30-3A-3.1(A)(3). Stalking consists of “knowingly pursuing a pattern of
conduct that would cause a reasonable person to feel frightened, intimidated or
threatened” with intent to “place another person in reasonable apprehension of
death, bodily harm, sexual assault, confinement or restraint” or in “fear for his
safety.” State v. Anderson, 24 P.3d 327, 329 (N.M. Ct. App. 2001) (quotation
omitted).
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that the jury did not credit Mojica’s testimony that Tenorio placed the gun in the
car—or, presumably, the rest of her testimony. 8
Whether the jury found Mojica credible (or whether the district judge
believed it did) is irrelevant at the sentencing stage. The district court itself is the
factfinder at sentencing and may make all necessary credibility determinations.
See United States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003); see
also United States v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005) (a district
court may find facts by a preponderance even if rejected by a jury under a
reasonable doubt standard). 9 Accordingly, the court was well within its discretion
to decide for itself that Mojica was credible.
Once such a determination is made, it is “virtually unreviewable on
appeal.” Virgen-Chavarin, 350 F.3d at 1134 (quotation omitted). “We will not
hold that testimony is, as a matter of law, incredible unless it is unbelievable on
its face, i.e., testimony as to facts that the witness physically could not have
possibly observed or events that could not have occurred under the laws of
nature.” Id. (quotation omitted). There is nothing physically improbable about
8
Tenorio makes no argument that a preponderance of the evidence bears
against the enhancement if Mojica’s testimony is credited.
9
Even if the jury’s credibility assessment were relevant to a sentencing
challenge, “[t]he jury speaks through its verdict” and not through any notes
submitted to the court in the process of reaching that verdict. United States v.
Espinoza, 338 F.3d 1140, 1148 (10th Cir. 2003). Thus, we will not consider the
jury’s note in our review.
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the events Mojica claims transpired on June 17. Thus, the district court did not
err in concluding by a preponderance of the evidence that they occurred, and we
find no procedural error in Tenorio’s sentence.
IV
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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