UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4702

CHARLES HENRY EDWARD SMITH, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CR-96-132)

Submitted: July 22, 1997

Decided: September 10, 1997

Before WILKINS, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph N. Bowman, Alexandria, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, Michael E. Rich, Assistant United

States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Charles Smith appeals from a district court judgment entered pursuant to a jury verdict finding him guilty of two counts of bank robbery, in violation of 18 U.S.C. § 2113(a) & (d) (1994). Smith

contends that the trial court erred by joining the two counts together

under Fed. R. Crim. P. 8(a), and denying his motion to sever the

charges under Fed. R. Crim. P. 14. He also challenges the sufficiency

of the evidence to convict him of either charge.

"Trial courts routinely allow joinder of different bank robbery

counts against a single defendant in the same indictment." United

States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995). The defendant bears

the burden of showing that the joinder was manifestly prejudicial, and

the trial court's decision to allow joinder should not be disturbed

absent a showing of clear prejudice or abuse of discretion. Id. Where

the offenses are strikingly similar in terms of method of operation and

occur over a short span of time, the trial court does not abuse its discretion by denying severance. Id.

In this case, the two robberies were only two days apart. Both

occurred at suburban banks in Northern Virginia, and the robber was

similarly dressed each time. He wore heavy clothing, a hat or hood

that partially masked his face, and distinctive large, round eyeglasses.

In both robberies, the robber wielded a black, semi-automatic pistol,

and on each occasion, witnesses described a getaway car which

matched the characteristics of one of two vehicles belonging to Maria

Valenzuela, Smith's common law wife. Given the numerous similarities between the two crimes, we find no abuse of discretion in the

court's decision to deny the motion for severance.

Regarding Smith's challenges to the sufficiency of the evidence,

we ask whether "any rational trier of fact could have found the essential elements of the crime [charged] beyond a reasonable doubt."

United States v. Johnson, 54 F.3d 1150, 1153 (4th Cir. 1995) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We "construe the evidence in the light most favorable to the government, assuming its

credibility, drawing all favorable inferences from it, and taking into

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account all the evidence, however adduced." Id. at 1153 (quoting

United States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991)).

The evidence adduced at trial relating to the first bank robbery

showed that a black male entered the bank in the late morning hours,

pulled out a gun, pointed it at a bank teller, and ordered her to put

money into a plastic bag he provided. The teller did as instructed, but

also placed a dyepack into the bag. A bank customer saw the robber

leave the bank and get into an older model gray Toyota or Sentra, and

saw a cloud of purple smoke coming from the car shortly after the

robber entered the vehicle.

Maria Valenzuela testified that Smith left the apartment they

shared on the morning of the robbery around 9:15 a.m., and returned

between 1:30 and 2:00 p.m. She testified that he ran into the apartment and then ran immediately to the back bedroom, where he took

off his clothes, which smelled, and took a shower. She testified that

Smith owned glasses, gloves, and a jacket similar to those that bank

surveillance cameras showed were worn by the robber of the first

bank. She also noticed that the gloves and jacket she spoke of were

missing after the robbery.

On the day of the robbery, police discovered a dye stained clear

plastic bag containing some dye stained United States currency near

the parking lot of the victim bank. Federal Bureau of Investigation

officials found a fingerprint of Smith's right thumb on the bag. When

Smith was arrested two days later, law enforcement officials searched

a gray 1977 Toyota Corona belonging to Valenzuela and discovered

that the vinyl covering of the front passenger seat had been removed.

While Smith contends that the only evidence linking him to the

first robbery was his fingerprint on the plastic bag, the totality of the

evidence in fact tended to demonstrate Smith's ability to be at the

scene of the robbery based on his departure and arrival times from his

apartment, that he wore glasses and clothing similar to those of the

robber, that he had access to a vehicle matching the characteristics of

the getaway car in the first robbery, and that Smith and the vehicle

he drove came into contact with the dye that the robber and his vehicle were exposed to after the first robbery. We find this evidence sufficient to support the jury's verdict as to the first robbery.

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The evidence linking Smith to the second robbery was even

stronger. The robber of the second bank wore distinctive eyeglasses

similar to those which Valenzuela testified Smith always wore, and

carried a gun similar to the one used by the robber of the first bank.

A bank customer saw the robber leave the bank and enter his getaway

vehicle. The customer wrote down the license plate number and gave

it to authorities. The number was issued to a 1987 Mazda owned by

Valenzuela. Police found Smith driving the Mazda later in the day of

the robbery, and arrested him. Police searched the vehicle and found

$12,948 in United States currency and a black pistol in the trunk.

Smith also had $1,500 in his wallet at the time of his arrest. Approximately $14,000 was stolen from the second bank.

Although Smith presented a witness at trial who testified that she

spoke to Smith at a service station located about 13 to 16 minutes by

car from the bank at precisely the time of the robbery, the jury was

free to disbelieve this testimony and credit the evidence which

strongly linked Smith to the second robbery. Accordingly, the judgment order of the district court is affirmed. 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

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