U.S. v. Bailey, 95-50254

• Decision Date: 25 April 1997
• Docket Number: No. 95-50254,95-50254
• Citation: 111 F.3d 1229
• Parties: 46 Fed. R. Evid. Serv. 1508 UNITED STATES of America, Plaintiff-Appellee, v. Jimmy C. BAILEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1229

111 F.3d 1229

46 Fed. R. Evid. Serv. 1508

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy C. BAILEY, Defendant-Appellant.

No. 95-50254.

United States Court of Appeals Fifth Circuit.

April 25, 1997.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Margaret Feuille Leachman, Office of the United States Attorney, San Antonio, TX, for Plaintiff-Appellee.

Walter Mabry Reaves, Jr., West, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before DAVIS and DUHE, Circuit Judges, and DOWD, ¹ District Judge.

DUHE, Circuit Judge:

Appellant Jimmy C. Bailey challenges his conviction on multiple counts related to his breaking and entering into the homes of Vicki LaShawn Griffin ² and Michelle Joshua, residents on the Fort Hood Military Reservation. For reasons that follow, we affirm.

BACKGROUND

Count 1 of the indictment charges Bailey with the aggravated sexual abuse of Griffin, in violation of 18 U.S.C. §§ 2241(a)(1) and 2245; count 2 charges Bailey under the Assimilative Crimes Act, 18 U.S.C. § 13, with the burglary of Griffin's habitation with intent to commit aggravated sexual assault, sexual assault, and aggravated sexual abuse, in violation of Tex. Pen.Code §§ 22.011, 22.021, 30.02, and 18 U.S.C. § 2241(a)(1); count 3 charges Bailey under the Assimilative Crimes Act with burglary of Joshua's habitation with intent to commit aggravated sexual assault, sexual assault, aggravated sexual abuse, and theft, in violation of Tex. Pen.Code §§ 22.011, 22.021, 30.02, and 18 U.S.C. § 2241(a)(1); count 4 charges Bailey with receipt of a stolen firearm valued at more than $100, in violation of 18 U.S.C. § 662.

The acts alleged in counts 1 and 2 arose out of an incident occurring in Griffin's home Griffin, having observed her attacker in the bright hallway light while he stood in her bedroom doorway, described him as a five foot ten or eleven inches tall, light-skinned, Hispanic male with hair close to his head and a light mustache, and clothed only in light blue hospital pants and white canvas shoes. ⁴ Although a police sketch was made, Bailey was not identified as Griffin's attacker until some months later when Griffin spoke with Staff Sergeant Yvette Smalls about a similar attack on Smalls. That conversation led Griffin to a high school yearbook containing Bailey's photo, by which she identified Bailey as her attacker. Griffin identified Bailey again in three subsequent photo line-ups.

                on the Fort Hood military base in Texas. 3  In the pre-dawn hours of May 25, 1992, Griffin, a Staff Sergeant in the United States Army, awoke to being choked by a man she later identified as Bailey.  As he was choking her, Bailey placed his hand in Griffin's underwear and inserted his finger into her vagina.  Griffin pushed Bailey away, screamed for help, and asked Bailey to leave her alone.  Bailey left but then returned, and Griffin again pleaded for her safety.  This time, Bailey left and did not return
                

Counts 3 and 4 of the indictment are based upon an incident that occurred on August 25, 1993, in the home of Michelle Joshua. Joshua, who lived alone on the Fort Hood base, was sleeping on her couch when she awoke in the pre-dawn morning because she felt that someone had pulled her toe. Awake, she began watching television but was interrupted by "a bumping sound." Joshua arose from the couch, turned around, and saw a man in one of the bedrooms emerging from a closet. He wore a ski mask and dark-colored pants but no shirt. Joshua screamed and ran to a neighbor's house to call the police. When the police arrived, Joshua informed them that a foreign car she believed belonged to the intruder was parked at the end of her driveway. Upon investigation, the police found a black ski mask on the back seat of the car and a Ruger nine millimeter pistol and two magazines in the trunk. The car belonged to one of Bailey's parents. When Joshua later returned to her house, she found nothing missing but noticed that the closet was "messed up." The police later discovered that the pistol found in Bailey's trunk belonged to a mechanic on Fort Hood, who had reported it stolen in June 1993.

When questioned, Bailey initially denied entering Joshua's home but admitted to having been in the area. He then changed his story and confessed to entering Joshua's residence but claimed he did not know why he had done so. Bailey also acknowledged he owned a ski mask that he wore "for fun." He denied having worn the mask in Joshua's home, however. He also stated that he had bought the gun found in his car with full knowledge that it was stolen.

Bailey was convicted by a jury on all counts.

DISCUSSION

Bailey argues that (1) the district court erred in admitting evidence of an extrinsic offense; (2) the evidence is insufficient to convict him on the burglary charge (count 3); (3) the district court erred in denying his motion to dismiss counts 3 and 4 for alleged violations of the Speedy Trial Act; and (4) the district court erred in refusing to instruct the jury on the lesser included offense of criminal trespass. We are unpersuaded by Bailey's arguments.

I.

The district court, under Fed.R.Evid. 404(b), admitted evidence of Bailey's attack on Smalls only to demonstrate Bailey's intent and identity in committing the burglaries charged in counts 2 and 3. The 404(b) evidence showed the following: On November 22, 1991, Smalls was awakened before sunrise when her touch-sensitive bedside lamp came on, and found a stranger standing in her bedroom doorway. Alarmed, Smalls asked the intruder his identity. The intruder During an interview conducted two days after the incident, Bailey admitted that he had entered Smalls's home uninvited, that he had stayed some length of time, that he had seen her breasts, and that he had asked Smalls to have sex with him. He denied grabbing Smalls's breasts or vaginal area, however, but conceded he may have brushed up against her chest.

did not respond and instead sat down on Smalls's bed while Smalls was still in it. He informed Smalls that he was coming to visit a previous occupant who had given him unrestricted access. He failed to identify this person, however, and did not leave Smalls's home despite the realization of his purported mistake. Although Smalls asked him to leave, he refused. Eventually, the intruder told Smalls, without revealing his name, that he was a football player at Killeen High School. Four to six hours after his entry into Smalls's home, during which time he constantly guarded Smalls for fear she would call the police, the intruder finally left. As he was leaving, the intruder pulled Smalls towards him, pushed her up against the wall, and grabbed her breast and crotch. When she screamed, he ran out. Thereafter, Smalls examined photographs of high school football teams in Killeen and identified Bailey as her attacker.

Bailey maintains that the admission of this evidence is not relevant to the charged burglary offenses and that its prejudicial effect outweighs its probative value. We disagree.

The decision to admit or exclude extrinsic evidence is subject to reversal only upon a clear showing of an abuse of discretion. See United States v. Sanchez, 988 F.2d 1384, 1393 (5th Cir.1993); United States v. Peden, 961 F.2d 517, 521 (5th Cir.1992). Rule 404(b) provides, in pertinent part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

This Court has established a two-prong test that governs the admissibility of Rule 404(b) evidence. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc). First, the evidence must be relevant to an issue other than the defendant's character. Second, the probative value of the evidence must not be substantially outweighed by its undue prejudice and the evidence must meet the other requirements of Rule 403. See id.; United States v. Williams, 957 F.2d 1238, 1243-44 (5th Cir.1992). We conclude that both prongs are satisfied, and that the evidence was therefore properly admitted.

A.

The Government contends that the evidence of Bailey's attack on Smalls is relevant to show identity and intent, both of which Bailey disputed at trial. Extrinsic offense evidence is relevant to an issue other than the defendant's character only if the jury can reasonably conclude that the extrinsic act occurred and that the defendant was the actor. See Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988); see also Beechum, 582 F.2d at 912-13 (rejecting standards developed in United States v. Broadway, 477 F.2d 991 (5th Cir.1973), for establishing relevance; and adopting more lenient test). Evidence of Bailey's attack on Smalls is therefore relevant to identity and intent under the Government's theory only if the jury could reasonably find that (a) Bailey himself entered Smalls's home; and (b) he did so with the intent to commit aggravated sexual assault, sexual assault, and aggravated sexual abuse. See Beechum, 582 F.2d at 913.

The Government proved that Bailey was the perpetrator of the crime against Smalls. Indeed, Bailey admitted to having been in Smalls's home without invitation the night of the offense. The jury thus could reasonably find that Bailey was Smalls's attacker. Evidence of Smalls's attack is therefore clearly relevant to the issue of identity. We are also convinced that the 404(b) evidence is relevant to the issue of intent but pretermit any discussion of that issue as unnecessary in light of the holding regarding identity.

B.

Although relevant, the evidence may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See id. at 911 (citing ...