US v. Dexter Spear

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:06-cr-00162-FDW-1 Copies to all parties and the district court/agency. [1000185412].. [17-4349]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-4349

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEXTER N. SPEARS,
Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:06-cr-00162-FDW-1)

Submitted: October 31, 2017

Decided: November 2, 2017

Before WILKINSON, WYNN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Simon Massie, MASSIE LAW, PLLC, Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, United States Attorney, Erik Lindahl, Special Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In 2007, Dexter N. Spears pled guilty to possessing with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2012), and possessing a
firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (2012). The district court sentenced him to 87 months’ imprisonment, to be
followed by a 3-year term of supervised release. The district court found that while
Spears was on supervised release, he violated the terms of his release by using cocaine
and committing other new criminal conduct. On appeal, Spears contends that the district
court clearly erred in crediting the victim’s testimony in finding that he committed new
criminal conduct. We affirm the district court’s judgment.
To revoke supervised release, a district court need only find a violation of a
condition of release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2012).
“We review a district court’s ultimate decision to revoke a defendant’s supervised release
for abuse of discretion.” United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015). A
district court’s factual findings are reviewed for clear error. Id. However, a district
court’s finding that a witness is credible is “virtually unassailable on appeal.” United
States v. Cates, 613 F.3d 856, 858 (8th Cir. 2010).
[W]hen a trial judge’s finding is based on his decision to credit the
testimony of one of two or more witnesses, each of whom has told a
coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be
clear error.
United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985)).
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Spears’ argument on appeal is that the victim’s testimony that he kicked in the
front door of her apartment and assaulted her was not supported by the photographs of
the damage to the door and her injuries. We disagree. The photographs of the door
clearly show some force was applied to break the locks. Additionally, a law enforcement
officer testified that he found a piece of the lock on the ground and that the door suffered
recent damage.
The photographs of the victim’s injuries are also not inconsistent with her
testimony. While the victim did not suffer a visible injury to her neck, she did not testify
that Spears strangled her—only that he placed his hands around her neck. Additionally,
the photograph of the victim’s knees show that her right knee was swollen, consistent
with her description of a fall to her knees while disengaging from Spears’ attack. This
evidence does not call into question the district court’s decision to credit the victim’s
testimony over that of Spears and another witness.
Accordingly, we affirm the district court’s 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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