United States v. Perkins ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4296
FREDDIE PERKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-214)
Submitted: October 20, 1998
Decided: November 16, 1998
Before WIDENER and WILKINS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Carl C. Muzi, Richmond, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Cameron S. Heaps, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Freddie Perkins appeals his conviction for being a felon in posses-
sion of a gun, in violation of 18 U.S.C. § 922(g) (1994). We affirm.
At trial, Detective Jan McTernan testified that early on March 16,
1997, she responded to a call at an Amoco gas station and conve-
nience store in Richmond, Virginia. At the gas station, McTernan
investigated the shooting death of Michael Watts and interviewed
Welton Brooks, a bystander who had been pumping gas during the
incident. McTernan later showed Brooks a photographic line-up, from
which Brooks identified Perkins.
Brooks also testified that he knew Perkins and had seen him stand-
ing in front of the Amoco store that morning. Brooks further testified
that he heard gunshots from behind the store while he was pumping
gas. Following the gunshots, Brooks saw Perkins and another man run
from behind the building. Brooks also saw Perkins drop a revolver,
pick it up, and continue running away from the gas station.
Jermaine Little, a defense witness, testified that he was in a phone
booth at the gas station at the time of the shooting and that he ran
away when he heard gun shots. Little claimed that Perkins was not at
the gas station when the shooting occurred. On cross-examination,
however, Little admitted that he had been recently convicted for the
murder of Watts as a principal in the second degree. The Government
then questioned Little about the facts of the murder, which he denied.
Perkins also testified on his behalf at trial. Perkins stated that he
was at the gas station before the shooting occurred to buy snacks and
cigarettes. However, Perkins claimed that at the time of the shooting,
he was asleep in his apartment unaware that a shooting had taken
place.
On appeal, Perkins asserts that the introduction of evidence of the
murder of Watts violated Fed. R. Evid. 404(b). We review the district
court's evidentiary rulings for abuse of discretion. See United States
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v. Hassan-El, 5 F.3d 726, 731 (4th Cir. 1993). Rule 404(b) permits
evidence of other crimes, wrongs, or acts to prove motive, opportu-
nity, intent, preparation, plan, knowledge, identity, or absence of mis-
take or accident. Evidence which has no purpose except to show
criminal disposition is excluded. See United States v. Sanchez, 118
F.3d 192, 195 (4th Cir. 1997). Thus, the court may admit any evi-
dence which is relevant to any issue other than character, is necessary,
and is reliable. Id. (citing United States v. Mark, 943 F.2d 444, 447
(4th Cir. 1991)). Such evidence may be excluded, however, if it is
more prejudicial than probative. See Sanchez, 118 F.3d at 196. How-
ever, acts intrinsic to the charged crime do not fall under Rule 404(b).
See United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996).
Perkins claims that the testimony of McTernan and the cross-
examination of Little, which elicited facts of the murder, was prejudi-
cial. The record discloses that during a pretrial discussion, Perkins'
counsel stated he did not object to the prosecutor giving an "overall
view of the incident" but wanted the prosecutor's terminology
restricted to the fact that there was a shooting and not an actual mur-
der. The prosecutor agreed not to introduce evidence such as photo-
graphs of the murder scene, autopsy reports or eyewitness accounts
of the actual murder. The evidence that was introduced was inextrica-
bly intertwined with the charged offense and necessary to provide the
jury with an understanding of the events leading to the charges
against Perkins. See United States v. Masters , 622 F.2d 83, 86 (4th
Cir. 1980). Regardless, the evidence was admitted for noncharacter
purposes and showed motive and intent to possess the gun. Further,
any possible prejudice was minimized by the court's instructions dur-
ing the Government's case that the evidence was merely for back-
ground information and that there was no other crime before the jury
other than possession of the firearm.
Perkins next asserts that the evidence was insufficient to support
his conviction. We must affirm Perkins' conviction"if there is sub-
stantial evidence, taking the view most favorable to the Government,
to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
Viewed in the light most favorable to the Government, the testimony
of Brooks, who identified Perkins as running away and in possession
of a weapon, is sufficient to sustain the conviction.
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Accordingly, we affirm Perkins' conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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