UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4552
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN DAMION HURLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:10-cr-00052-JPB-DJJ-1)
Submitted: October 27, 2011 Decided: November 17, 2011
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicholas J. Compton, Assistant Federal Public Defender,
Martinsburg, West Virginia, for Appellant. William J.
Ihlenfeld, II, United States Attorney, Erin K. Reisenweber,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Marvin Damion Hurley was convicted
of one count of interstate domestic violence, in violation of 18
U.S.C. § 2261(a)(2) (2006). On appeal, Hurley claims the
following: (1) the evidence was insufficient to support the
conviction and (2) the district court erred in admitting
evidence of a prior bad act, admitting evidence of a threatening
statement and denying Hurley’s request to admit evidence of the
victim’s violent nature as evidence of habit. Finding no error,
we affirm.
A person is guilty of interstate domestic violence if
the Government proves beyond a reasonable doubt that the person:
cause[d] a spouse, intimate partner, or dating partner
to travel in interstate or foreign commerce or to
enter or leave Indian country by force, coercion,
duress, or fraud, and who, in the course of, as a
result of, or to facilitate such conduct or travel,
commits or attempts to commit a crime of violence
against that spouse, intimate partner, or dating
partner[.]
18 U.S.C. § 2261(a)(2) (2006). In this instance, the trial
evidence showed that Hurley used physical force to prevent his
wife from leaving him during an automobile trip from West
Virginia to Maryland.
“A defendant challenging the sufficiency of the
evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
2
(internal quotation marks omitted). A jury’s verdict “must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942); see United States v. Perkins,
470 F.3d 150, 160 (4th Cir. 2006). Substantial evidence is
“evidence that a reasonable 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. Alerre, 430
F.3d 681, 693 (4th Cir. 2005) (internal quotation marks
omitted). The court considers both circumstantial and direct
evidence, drawing all reasonable inferences from such evidence
in the Government’s favor. United States v. Harvey, 532 F.3d
326, 333 (4th Cir. 2008). In resolving issues of substantial
evidence, this court does not reweigh the evidence or reassess
the factfinder’s determination of witness credibility, see
United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and
“can reverse a conviction on insufficiency grounds only when the
prosecution’s failure is clear.” United States v. Moye,
454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation
marks omitted).
Hurley contends the evidence was insufficient to show
that he committed a crime of violence against his wife. We note
that the statute requires either evidence of a crime of violence
or an attempt to commit such an offense. We have reviewed the
3
record and find that his wife’s testimony, which was
corroborated in part by Sergeant Manning, clearly established
Hurley engaged in an act of violence against his wife in order
to get her back into the car to continue the trip into Maryland.
Although Hurley completely denied that he engaged in anything
approaching a violent act against his wife, the jury obviously
decided that his wife was a more credible witness. It is well
established that credibility determinations are within the sole
province of the jury and are not reviewable. See United
States v. Kelly, 592 F.3d 586, 594 (4th Cir.), cert. denied, 130
S. Ct. 3374 (2010).
This court reviews for abuse of discretion the court’s
rulings on the admissibility of evidence. United States v.
Bostian, 59 F.3d 474, 480 (4th Cir. 1995). Hurley challenges
the district court’s decision to admit evidence showing that
just a week or two before the incident at issue, he took a
similar trip with his wife under the guise of visiting his
father, but stopped instead at a house where there was cocaine.
He claims the evidence was not relevant to any issue at trial
and its probative value was outweighed by the danger of unfair
prejudice.
We conclude that the district court did not abuse its
discretion in admitting the evidence as intrinsic to the charged
offense because it was part of the story of what happened during
4
the night in question. See United States v. Kennedy, 32 F.3d
876, 885-86 (4th Cir. 1994). The evidence showed why Hurley’s
wife called his father on the night in question in order to find
out if he was expecting them. It was this telephone call that
led to their first fight in the car on the way to Maryland. It
also showed why Hurley’s wife was reluctant to go on the trip in
the first place.
We note that the district court gave a very specific
limiting instruction to the jury regarding how it was to
consider this evidence. Rule 403 of the Federal Rules of
Evidence provides that “relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice.” The damage that probative evidence can
inflict on a defendant’s case is no basis for excluding the
evidence, however; only when that evidence results in unfair
prejudice, such as an appeal to the jury’s emotion, and that
prejudice “substantially outweighs the probative value of the
evidence,” must it be excluded. United States v. Basham, 561
F.3d 302, 327 (4th Cir. 2009). Where the jury is given a
limiting instruction, any concern that the jury will improperly
use the evidence subsides. United States v. Branch, 537 F.3d
328, 342 (4th Cir. 2008). Based on the court’s limiting
instruction, we conclude the evidence was properly admitted.
5
Hurley also contends that the district court erred in
admitting testimony indicating that Hurley told a fellow
prisoner that regardless of whether he was found guilty or not,
he would kill his wife and her boyfriend. This court has held
that threats against an actual witness are admissible because
the evidence exposes the defendant’s consciousness regarding his
belief that his case is weak or unfounded and shows
consciousness of guilt. See United States v. Young, 248 F.3d
260, 272 (4th Cir. 2001). The evidence must relate to the
charged offense and be reliable. Id. We conclude that the
district court did not clearly err in finding that the proposed
evidence was both reliable and related to the charged offense.
We further conclude that the court’s limiting instruction
regarding the use of this evidence limited the danger that the
evidence’s probative value was substantially outweighed by the
danger of unfair prejudice. See Fed. R. Evid. 403.
Hurley also argues that the district court erred by
not allowing him to present evidence of his wife’s habitual
violent nature. Under Rule 406 of the Federal Rules of
Evidence, habit evidence may be admissible to prove that the
conduct of a person was in conformity with habit or routine
practice. See, e.g., Wilson v. Volkswagen of Am., Inc., 561
F.2d 494, 511 (4th Cir. 1977). Here, the proffered instances of
prior conduct was simply too few and far between to show that
6
Hurley’s wife had a habit of reacting violently to a repeated
set of circumstances.
Accordingly, we affirm the conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
7