US v. Johnny Baker

Filing 920091106

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4021 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY LYNN BAKER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:07-cr-00435-JRS-1) Submitted: October 28, 2009 Decided: November 6, 2009 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven Jay Rozan, STEVEN JAY for Appellant. Dana J. Samuel E. Fishel, Special Elizabeth C. Wu, Assistant Virginia, for Appellee. ROZAN & ASSOCIATES, Houston, Texas, Boente, United States Attorney, Assistant United States Attorney, United States Attorney, Richmond, Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Johnny Baker of possession of child pornography, in violation of 18 U.S.C.A. 2252A(a)(5)(B) (West Supp. 2009). The district court sentenced Baker to 108 months Finding no error, we of imprisonment and Baker now appeals. affirm. Baker argues that the district court abused its discretion in admitting evidence of Baker's possession of images and videos of child pornography that were not charged in the indictment. We review a district court's determination of the admissibility of evidence under Fed. R. Evid. 404(b) for abuse of discretion. Cir. 1997). United States v. Queen, 132 F.3d 991, 995 (4th An abuse of discretion occurs only when "the [district] court acted arbitrarily or irrationally in admitting evidence." United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation marks and citation omitted). Rule 404(b) prohibits the admission of "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." R. Evid. 404(b). However, such evidence is "admissible Fed. for other purposes, such as proof of motive, opportunity, intent, preparation, mistake. . . plan, ." Id. knowledge, Rule identity, is an or absence of rule, 404(b) inclusionary allowing evidence of other crimes or acts to be admitted, except 2 that which tends to prove only criminal disposition. 132 F.3d at 994-95. For such evidence to be admissible, it See Queen, must be "(1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable." 305, 312 (4th Cir. 2004) United States v. Hodge, 354 F.3d (citing Queen, 132 F.3d at 997). Additionally, the probative value of the evidence must not be substantially outweighed by its prejudicial effect. Id. (citing Fed. R. Evid. 403). Baker argues that the evidence of his possession of uncharged images and videos of child pornography was not relevant because there was insufficient evidence to demonstrate that the images were in fact child pornography and that he possessed the images. However, when the relevancy of evidence depends on the fulfillment of a condition of fact, the district court "simply examines all the evidence in the case and decides whether the jury could reasonably find the condition fact . . . by a preponderance of the evidence." Huddleston v. United States, 485 U.S. 681, 690 (1988). We have reviewed the record on appeal and conclude that there was sufficient evidence for the jury to conclude that the uncharged images and videos contained child pornography and that Baker possessed them. 3 Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 4

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