United States v. Mark G. Perry , 352 F. App'x 351 ( 2009 )


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  •                                                              [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                   FILED
    U.S. COURT OF APPEALS
    No. 09-12087                 ELEVENTH CIRCUIT
    NOVEMBER 9, 2009
    Non-Argument Calendar
    THOMAS K. KAHN
    ________________________
    CLERK
    D. C. Docket No. 07-00121-CR-F-S
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MARK G. PERRY,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    _________________________
    (November 9, 2009)
    Before BLACK, WILSON and PRYOR, Circuit Judges.
    PER CURIAM:
    Mark G. Perry appeals his convictions for assault with the intent to rob a
    postal clerk, in violation of 
    18 U.S.C. § 2114
    (a), and assault on a government
    employee engaged in the performance of official duties, in violation of 
    18 U.S.C. § 111
    . Perry was convicted following a jury trial. On appeal, Perry argues that the
    district court erred in admitting evidence of his prior conviction for sexual assault,
    and submits also that there was insufficient evidence for the jury to find him guilty.
    For the following reasons, we affirm the judgment of the district court.
    I.
    Perry was indicted for robbing and assaulting a postal clerk in Newton,
    Alabama the day after Christmas 2006. At trial the government sought to introduce
    evidence of Perry’s state conviction for a sexual assault that occurred a little later
    that same day in Dothan, Alabama, approximately fourteen miles away. The
    government argued that the facts of Perry’s conviction for sodomy in Dothan
    demonstrated identity, modus operandi, intent, and absence of mistake under
    Federal Rule of Evidence 404(b) that were relevant to the issue of Perry’s guilt in
    the Newton attack. The evidence was particularly important for the government’s
    case because the investigation had failed to locate fingerprints, DNA, or other
    physical evidence placing Perry in the Newton post office. The similar-act
    evidence would support the victim’s identification of her assailant.
    The district court admitted the Rule 404(b) evidence as relevant to identity
    2
    after finding “extraordinary” similarities between the two incidents: a lone female
    employee attacked in a place of business, after a similarly dressed assailant entered
    on a pretext and remained within; the assailant remained calm as he bound his
    victim with duct tape and sexually assaulted her. The district court instructed the
    jury that it was to consider evidence of the second assault for the limited purpose
    of considering the identity of the post office assailant. On appeal Perry raises two
    issues: first, that admission of the second assault was unfairly prejudicial under
    Federal Rule of Evidence 403, and second, that insufficient evidence supported
    Perry’s conviction. We address each in turn.
    II.
    Perry argues that the unfair prejudice of the evidence of his prior sexual
    assault conviction outweighed its probative value. He further asserts that during the
    trial, the district court abused its discretion by allowing multiple witnesses to
    testify to details of the sexual assault crime, which essentially resulted in a retrial
    of the prior crime that inflamed the jury into finding him guilty.
    We review a district court’s rejection of a Rule 403 challenge for abuse of
    discretion. United States v. Jernigan, 
    341 F.3d 1273
    , 1284 (11th Cir. 2003). This
    standard requires that we defer to the district court’s holdings unless they are
    “manifestly erroneous.” Rink v. Cheminova, Inc., 
    400 F.3d 1286
    , 1291 (11th Cir.
    3
    2005).
    Rule 403 provides that relevant evidence “may be excluded if its probative
    value is substantially outweighed by the danger of unfair prejudice, confusion of
    the issues, or misleading the jury, or by considerations of undue delay, waste of
    time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.
    Exclusion under Rule 403 is “an extraordinary remedy which the district court
    should invoke sparingly.” United States v. Dodds, 
    347 F.3d 893
    , 897 (11th Cir.
    2003) (internal quotation omitted). Furthermore, when reviewing a ruling under
    Rule 403, the balance is in favor of admissibility, and we should “look at the
    evidence in a light most favorable to its admission, maximizing its probative value
    and minimizing its undue prejudicial impact.” 
    Id.
     Also, instructions to the jury may
    mitigate or even cure the unfair prejudice, if any, caused by the admission of some
    evidence. See United States v. Spoerke, 
    568 F.3d 1236
    , 1251 (11th Cir. 2009).
    To be admissible, Rule 404(b) evidence must (1) be relevant to an issue
    other than the defendant’s character; (2) sufficiently prove that the defendant
    committed the extrinsic act; and (3) not create undue prejudice that substantially
    outweighs its probative value, and or violate the other requirements of Rule 403.
    United States v. Delgado, 
    56 F.3d 1357
    , 1365 (11th Cir. 1995). Perry concedes the
    first two prongs of Delgado and raises only the issue of unfair prejudice.
    4
    Viewing the evidence in the light most favorable to admission, Dodds, 
    347 F.3d at 897
    , the district court did not commit reversible error by admitting the
    evidence of Perry’s sodomy conviction. The test is not whether evidence is
    prejudicial, but rather whether any unfairness of the prejudice substantially
    outweighs the probative value of the proffered evidence. As the district court
    noted, the facts of the Dothan attack were highly probative. The attacks took place
    within minutes of each other, a few miles apart. The assailants dressed similarly,
    isolated their victims in the same calculated way, bound them with duct tape, and
    calmly assaulted them. At the same time, the district court did not admit all
    evidence of the Dothan attack wholesale. The exclusion of numerous proffered
    photographic exhibits of the Dothan attack, and the limit on witness testimony,
    showed that the district court balanced the probative and prejudicial aspects of the
    evidence piece by piece. This same balancing is apparent in the district court’s
    exclusion of evidence of Perry’s 1991 conviction for robbing a Daleville Domino’s
    Pizza, which Perry entered claiming he was a Domino’s employee who needed to
    use the phone. These rulings show the district court carefully followed the
    requirements of Rules 403 and 404(b). Under the abuse of discretion standard,
    these rulings are defensible and fail to reach Rink’s requirement for “manifestly
    erroneous” decisions to admit evidence.
    5
    III.
    Perry next argues that there was insufficient evidence for the jury to convict
    him. Perry asserts that the victim’s identification of him was unreliable due to
    extenuating circumstances at the time the crime was committed and flaws in the
    investigative process. He also asserts that the record demonstrates that it was
    physically impossible for him to have committed the crime, and emphasizes that
    there was no physical evidence connecting him to the crime.
    The inquiry into the sufficiency of the government’s evidence produced at
    trial is a question of law subject to de novo review. Spoerke, 
    568 F.3d at 1244
    . In
    reviewing the sufficiency of the evidence, we ask whether, after viewing the
    evidence in the light most favorable to the prosecution, with all reasonable
    inferences and credibility choices made in the government’s favor, a reasonable
    trier of fact could have found the essential elements of the crime beyond a
    reasonable doubt. 
    Id.
     We will not disturb a guilty verdict unless “no trier of fact
    could have found guilt beyond a reasonable doubt.” United States v. Yost, 
    479 F.3d 815
    , 818–19 (11th Cir. 2007) (internal quotation omitted).
    Witness credibility is the “sole province” of the jury. United States v.
    Hamaker, 
    455 F.3d 1316
    , 1334 (11th Cir. 2006). Moreover, only the jury has the
    responsibility to weigh and resolve conflicts in the evidence. United States v. Tagg,
    6
    
    572 F.3d 1320
    , 1325 (11th Cir. 2009) (quoting United States v. Pearson, 
    746 F.2d 787
    , 794 (11th Cir.1984)). “[T]he jury’s verdict will not be disturbed on appeal
    unless the testimony is ‘incredible as a matter of law.’ Testimony is only
    ‘incredible’ if it relates to ‘facts that the witness could not have possibly observed
    or events that could not have occurred under the laws of nature.’” United States v.
    Flores, 
    572 F.3d 1254
    , 1263 (11th Cir. 2009) (internal citations omitted), petition
    for cert. filed, (U.S. Sept. 25 and Sept. 28, 2009) (09-6730 and 09-6821).
    To obtain a conviction under 
    18 U.S.C. § 2114
    (a), as charged here, the
    government must establish, beyond a reasonable doubt, that (1) the defendant
    assaulted a postal worker who had lawful charge, custody, or control of money or
    other property of the United States; and (2) the defendant did so with intent to rob,
    steal, or purloin that property. 
    18 U.S.C. § 2114
    (a). To obtain a conviction under
    
    18 U.S.C. § 111
    , the government must establish, beyond a reasonable doubt, that
    (1) the defendant forcibly assaulted the person described in the indictment; (2) the
    person assaulted was a federal officer, then engaged in the performance of an
    official duty or on account of her official duties, as charged; and (3) that the
    defendant acted knowingly and willfully. See United States v. Martinez, 
    486 F.3d 1239
    , 1243, 1246 (11th Cir. 2007) (holding that the district court, by using the
    elements set forth above, instructed the jury properly).
    7
    Looking at the evidence in the light most favorable to the government,
    Spoerke, 
    568 F.3d at 1244
    , we conclude there is sufficient evidence to sustain
    Perry’s conviction. The victim’s account of the assault and her identification of
    Perry was the crux of the government’s case. Perry was able to cross-examine the
    victim regarding her perceptions at the post office, her work with the police sketch
    artist, and her identification of Perry from the photo lineup. Moreover, Perry
    presented an expert witness who testified as to the problems of in-person
    identifications made under stress, and identifications made between people of
    different races. These evaluations of witness credibility, perception, and memory
    are matters for the jury. Perry also was able to challenge the government’s account
    regarding the length of time it took to travel from Newton to Dothan, and the color
    of the vehicles driven by the assailants. The lack of physical evidence by itself
    does not entitle Perry to acquittal. A reasonable jury could have weighed the
    competing accounts and found Perry guilty beyond a reasonable doubt based on
    the evidence presented.
    IV.
    The district court did not abuse its discretion by admitting evidence of
    Perry's prior conviction for sexual assault. Additionally, the jury had sufficient
    evidence upon which to find Perry guilty of both counts beyond a reasonable
    8
    doubt. The judgment of the district court is AFFIRMED.
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