UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5140
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAFAEL ELIAS KILLIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00106-NCT)
Submitted: April 11, 2007 Decided: May 14, 2007
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rafael Killian appeals the district court’s judgment
entered pursuant to a jury verdict finding him guilty of knowingly
possessing in commerce a firearm after having been convicted of a
crime punishable by imprisonment for a term exceeding one year, in
violation of 18 U.S.C. § 922(g)(1) (2000) and § 924(a)(2) (2000).
On appeal, Killian contends the district court erred in its
admission of certain evidence. Decisions regarding the admission
or exclusion of evidence are left to the sound discretion of the
trial court and will not be reversed absent an abuse of that
discretion. United States v. Russell, 971 F.2d 1098, 1104 (4th
Cir. 1992).
Police apprehended Killian after encountering him at a
car dealership where he was in the process of removing the wheels
and tires from a car on the lot. Killian’s girlfriend testified at
trial that she assisted Killian’s attempt to steal the tires, that
the couple had already twice unsuccessfully attempted to steal
tires earlier in the evening, including once at the dealership,
because they possessed the wrong tools, and had returned to his
sister’s trailer to get the correct tools. While at the trailer,
Killian obtained a gun and stated that “if it didn’t work this time
that he was going to kick in people’s doors.” The couple then
returned to the car dealership.
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Killian contends that admission of evidence that he was
attempting to steal tires, as well as the testimony that he “was
going to kick in people’s doors,” constituted error under Federal
Rules of Evidence 403 and 404(b). Rule 403 excludes relevant
evidence whose probative value is substantially outweighed by the
danger of unfair prejudice. Rule 404(b) encompasses this same
restriction while also excluding evidence of prior bad acts offered
to prove a defendant’s character. Evidence of prior bad acts may
be admitted under the rule, however, if offered to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). Rule
404(b) also does not exclude evidence of prior bad acts that are
intrinsic to the criminal act charged. “Other criminal acts are
intrinsic when they are inextricably intertwined or both acts are
part of a single criminal episode or the other acts were necessary
preliminaries to the crime charged.” United States v. Chin, 83
F.3d 83, 88 (4th Cir. 1996) (quoting United States v. Lambert, 995
F.2d 1006, 1007 (10th Cir. 1993)) (internal quotations omitted).
We find no error in the district court’s admission of the
evidence at issue. The evidence of Killian’s actions in
preparation to steal tires was intrinsic to the crime of possession
of a firearm. Clearly, Killian retrieved the firearm for the
purpose of facilitating his plan to steal tires. Moreover, the
evidence was not overly prejudicial as the evidence that Killian
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attempted to steal tires did not “involve conduct any more
sensational or disturbing than the crimes with which he was
charged.” United States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995).
Finally, we find the evidence at issue to be relevant, necessary,
reliable, and probative in accordance with the four-part test for
admissibility of 404(b) evidence set forth in United States v.
Queen, 132 F.3d 991, 997 (4th Cir. 1997).
Accordingly, the judgment of the district court is
affirmed. We dispense with oral argument because the facts and
legal contentions are adequately expressed in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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