UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLEN ALLEN STEWART, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:14-cr-00090-FL-1)
Submitted: September 28, 2015 Decided: October 13, 2015
Before NIEMEYER, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Glen Allen Stewart, Jr., guilty of possessing
a firearm and ammunition after sustaining a felony conviction,
in violation of 18 U.S.C. § 922(g)(1) (2012). The district
court sentenced Stewart to 120 months in prison. On appeal,
Stewart challenges his conviction, asserting first that the
Government’s evidence of his guilt was legally insufficient and,
second, that the district court abused its discretion in
admitting certain evidence pursuant to Fed. R. Evid. 404(b). We
find these contentions lack merit and therefore affirm the
judgment.
I.
We review the sufficiency of the evidence supporting a
conviction de novo. United States v. McLean, 715 F.3d 129, 137
(4th Cir. 2013). “A defendant bringing a sufficiency challenge
must overcome a heavy burden, and reversal for insufficiency
must be confined to cases where the prosecution’s failure is
clear.” United States v. Engle, 676 F.3d 405, 419 (4th Cir.
2012) (citation and internal quotation marks omitted). In
assessing the sufficiency of the evidence, our review is limited
to determining whether, viewing the evidence in the light most
favorable to the Government and accepting the factfinder’s
determinations of credibility, the verdict is supported by
substantial evidence, that is, “evidence that a reasonable
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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. King, 628 F.3d 693, 700 (4th Cir.
2011) (internal quotation marks omitted).
To convict Stewart of violating 18 U.S.C. § 922(g)(1), the
Government was required to prove beyond a reasonable doubt that
Stewart was previously convicted of a crime punishable by a term
of imprisonment exceeding one year; he knowingly possessed the
firearm and ammunition; and the possession was in or affecting
commerce, because the firearm and ammunition traveled in
interstate or foreign commerce. United States v. Moye, 454 F.3d
390, 395 (4th Cir. 2006) (en banc). Because Stewart stipulated
that he had been convicted of a felony and the uncontradicted
testimony of an ATF agent established an interstate nexus, the
only contested issue in this case was whether Stewart “knowingly
possessed” the firearm and ammunition.
“Liability under § 922(g)(1) may arise from a felon’s
voluntary and intentional possession of a firearm, whether the
felon possessed the weapon actually or constructively,
exclusively or jointly with others.” United States v. Graham,
796 F.3d 332, 376 (4th Cir. 2015). “A person may have
constructive possession of contraband if he has ownership,
dominion, or control over the contraband or the premises or
vehicle in which the contraband was concealed.” United States
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v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). Constructive
possession may be proven by either circumstantial or direct
evidence. “Either way, a fact finder may properly consider the
totality of the circumstances” in determining whether the
Government has met its burden of proof. Id.
Taken in the light most favorable to the prosecution, we
find ample record support for the jury’s finding that Stewart
constructively possessed the firearm and ammunition found in the
vehicle on the night in question. Specifically, both of the
police officers involved in the traffic stop underlying this
prosecution testified to seeing a gun, which was loaded,
protruding from the vehicle’s center console. Stewart was
driving the vehicle, which he had borrowed from his aunt. At a
minimum, then, Stewart had dominion and control over the vehicle
in which the loaded firearm was located, which is enough to
support a conviction under a constructive possession theory.
Id.
But the Government’s evidence went further. The police
officer who first observed the firearm offered clear and
unequivocal testimony describing the close proximity between
Stewart and the gun—explaining that the firearm was within
inches of Stewart’s body—and that Stewart glanced toward the gun
and began to move his hand toward it after the officer directed
Stewart to raise his hands. This evidence also establishes
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Stewart’s constructive possession of the firearm, as it was
readily within his reach and at his disposal. See United States
v. Shrader, 675 F.3d 300, 308 (4th Cir. 2012) (“[W]e have
repeatedly affirmed the right of juries to consider proximity as
a part of their analysis of a defendant’s constructive
possession.”).
Stewart attempts to cast doubt on the veracity of the
officers’ testimony, emphasizing the lack of fingerprint
evidence linking Stewart to the firearm and ammunition and the
officers’ failure to videotape the stop or take photographs on
the scene. But it is the role of the jury to weigh the
credibility of the evidence, to resolve conflicts in the
evidence, and—where the evidence supports different, reasonable
interpretations—to decide which interpretation to credit.
McLean, 715 F.3d at 137. The jury was entitled to accept the
officers’ testimony and, on substantial evidence review, we will
not weigh evidence or review witness credibility.
II.
Stewart next argues that the district court abused its
discretion by admitting, under Fed. R. Evid. 404(b), the
testimony of Deputy Sheriff Frank Barbagallo, with the Flagler
County (Florida) Sheriff’s Office, and evidence of Stewart’s two
prior convictions for being a felon in possession of a firearm.
Deputy Sheriff Barbagallo testified that, in March 2014—only a
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few months after the events underlying Stewart’s prosecution in
this case—he stopped another vehicle Stewart was driving, also
loaned to Stewart by his aunt, and that several rounds of
ammunition were found during a later inventory search of that
vehicle.
We review a district court’s “decision to admit evidence
under Rule 404(b) for abuse of discretion.” United States v.
Byers, 649 F.3d 197, 206 (4th Cir. 2011). Under Rule 404(b),
evidence of other bad acts may be admitted as proof of “motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident,” but “not . . . to
prove a person’s character in order to show that on a particular
occasion the person acted in accordance with [his] character.”
Fed. R. Evid. 404(b).
“Rule 404(b) is an inclusive rule, admitting all evidence
of other crimes or acts except that which tends to prove only
criminal disposition.” United States v. Wilson, 624 F.3d 640,
651 (4th Cir. 2010) (internal quotation marks omitted). “To be
admissible under Rule 404(b), evidence must be (1) relevant to
an issue other than character; (2) necessary; and (3) reliable.”
United States v. Siegel, 536 F.3d 306, 317 (4th Cir. 2008)
(internal quotation marks omitted). Nevertheless, potential
Rule 404(b) evidence should be excluded if its probative value
is substantially outweighed by its unfair prejudice to the
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defendant. United States v. Johnson, 617 F.3d 286, 296–97 (4th
Cir. 2010).
Our review of the record confirms that Deputy Barbagallo’s
testimony meets all the criteria for admissibility under Rule
404(b). Moreover, despite Stewart’s suggestion to the contrary,
the district court’s careful ruling with regard to the scope of
Barbagallo’s testimony, combined with the limiting jury
instructions, eliminated the risk of unfair prejudice.
We likewise find no abuse of discretion in admitting
evidence of Stewart’s two prior convictions for possessing
firearms as a convicted felon. See accord United States v.
Moran, 503 F.3d 1135, 1144 (10th Cir. 2007) (“[T]he fact that
[defendant] knowingly possessed a firearm in the past supports
the inference that he had the same knowledge in the context of
the charged offense.”); United States v. Jernigan, 341 F.3d
1273, 1281 (11th Cir. 2003) (“[T]he caselaw in this and other
circuits establishes clearly the logical connection between a
convicted felon’s knowing possession of a firearm at one time
and his knowledge that a firearm is present at a subsequent time
(or, put differently, that his possession at the subsequent time
is not mistaken or accidental).”); United States v. Cassell, 292
F.3d 788, 794-95 (D.C. Cir. 2002) (“A prior history of
intentionally possessing guns, or for that matter chattels of
any sort, is certainly relevant to the determination of whether
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a person in proximity to such a chattel on the occasion under
litigation knew what he was possessing and intended to do so.”).
However, even if we were to conclude that the district
court erred in admitting the Rule 404(b) evidence, Stewart would
not be entitled to relief unless we also found that the error
was not harmless. See United States v. Lighty, 616 F.3d 321,
355 (4th Cir. 2010). “Where error is founded on a violation of
Rule 404(b), the test for harmlessness is whether we can say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” Id. (internal
quotation marks omitted). As discussed above with regard to the
sufficiency of the Government’s evidence, we readily conclude
that the jury’s verdict was not substantially swayed by the
admission of either Deputy Barbagallo’s testimony or evidence of
Stewart’s two prior felon-in-possession convictions.
Accordingly, we affirm the criminal judgment. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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