UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4021

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GLEN ALLEN STEWART, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan, 

District Judge. (5:14-cr-00090-FL-1)

Submitted: September 28, 2015 Decided: October 13, 2015

Before NIEMEYER, KEENAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North 

Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

A jury found Glen Allen Stewart, Jr., guilty of possessing 

a firearm and ammunition after sustaining a felony conviction, 

in violation of 18 U.S.C. § 922(g)(1) (2012). The district 

court sentenced Stewart to 120 months in prison. On appeal, 

Stewart challenges his conviction, asserting first that the 

Government’s evidence of his guilt was legally insufficient and, 

second, that the district court abused its discretion in 

admitting certain evidence pursuant to Fed. R. Evid. 404(b). We 

find these contentions lack merit and therefore affirm the 

judgment.

I.

We review the sufficiency of the evidence supporting a 

conviction de novo. United States v. McLean, 715 F.3d 129, 137 

(4th Cir. 2013). “A defendant bringing a sufficiency challenge 

must overcome a heavy burden, and reversal for insufficiency 

must be confined to cases where the prosecution’s failure is 

clear.” United States v. Engle, 676 F.3d 405, 419 (4th Cir. 

2012) (citation and internal quotation marks omitted). In 

assessing the sufficiency of the evidence, our review is limited 

to determining whether, viewing the evidence in the light most 

favorable to the Government and accepting the factfinder’s 

determinations of credibility, the verdict is supported by 

substantial evidence, that is, “evidence that a reasonable 
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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. King, 628 F.3d 693, 700 (4th Cir. 

2011) (internal quotation marks omitted).

To convict Stewart of violating 18 U.S.C. § 922(g)(1), the 

Government was required to prove beyond a reasonable doubt that 

Stewart was previously convicted of a crime punishable by a term 

of imprisonment exceeding one year; he knowingly possessed the 

firearm and ammunition; and the possession was in or affecting 

commerce, because the firearm and ammunition traveled in 

interstate or foreign commerce. United States v. Moye, 454 F.3d 

390, 395 (4th Cir. 2006) (en banc). Because Stewart stipulated 

that he had been convicted of a felony and the uncontradicted 

testimony of an ATF agent established an interstate nexus, the 

only contested issue in this case was whether Stewart “knowingly 

possessed” the firearm and ammunition. 

“Liability under § 922(g)(1) may arise from a felon’s 

voluntary and intentional possession of a firearm, whether the 

felon possessed the weapon actually or constructively, 

exclusively or jointly with others.” United States v. Graham, 

796 F.3d 332, 376 (4th Cir. 2015). “A person may have 

constructive possession of contraband if he has ownership, 

dominion, or control over the contraband or the premises or 

vehicle in which the contraband was concealed.” United States 
4

v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). Constructive 

possession may be proven by either circumstantial or direct 

evidence. “Either way, a fact finder may properly consider the 

totality of the circumstances” in determining whether the 

Government has met its burden of proof. Id. 

Taken in the light most favorable to the prosecution, we 

find ample record support for the jury’s finding that Stewart 

constructively possessed the firearm and ammunition found in the 

vehicle on the night in question. Specifically, both of the 

police officers involved in the traffic stop underlying this 

prosecution testified to seeing a gun, which was loaded,

protruding from the vehicle’s center console. Stewart was 

driving the vehicle, which he had borrowed from his aunt. At a 

minimum, then, Stewart had dominion and control over the vehicle 

in which the loaded firearm was located, which is enough to 

support a conviction under a constructive possession theory. 

Id. 

But the Government’s evidence went further. The police 

officer who first observed the firearm offered clear and 

unequivocal testimony describing the close proximity between 

Stewart and the gun—explaining that the firearm was within 

inches of Stewart’s body—and that Stewart glanced toward the gun 

and began to move his hand toward it after the officer directed 

Stewart to raise his hands. This evidence also establishes 
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Stewart’s constructive possession of the firearm, as it was 

readily within his reach and at his disposal. See United States 

v. Shrader, 675 F.3d 300, 308 (4th Cir. 2012) (“[W]e have 

repeatedly affirmed the right of juries to consider proximity as 

a part of their analysis of a defendant’s constructive 

possession.”). 

Stewart attempts to cast doubt on the veracity of the 

officers’ testimony, emphasizing the lack of fingerprint 

evidence linking Stewart to the firearm and ammunition and the 

officers’ failure to videotape the stop or take photographs on 

the scene. But it is the role of the jury to weigh the 

credibility of the evidence, to resolve conflicts in the 

evidence, and—where the evidence supports different, reasonable 

interpretations—to decide which interpretation to credit. 

McLean, 715 F.3d at 137. The jury was entitled to accept the

officers’ testimony and, on substantial evidence review, we will 

not weigh evidence or review witness credibility. 

II.

Stewart next argues that the district court abused its 

discretion by admitting, under Fed. R. Evid. 404(b), the 

testimony of Deputy Sheriff Frank Barbagallo, with the Flagler 

County (Florida) Sheriff’s Office, and evidence of Stewart’s two 

prior convictions for being a felon in possession of a firearm. 

Deputy Sheriff Barbagallo testified that, in March 2014—only a 
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few months after the events underlying Stewart’s prosecution in 

this case—he stopped another vehicle Stewart was driving, also 

loaned to Stewart by his aunt, and that several rounds of 

ammunition were found during a later inventory search of that 

vehicle. 

We review a district court’s “decision to admit evidence 

under Rule 404(b) for abuse of discretion.” United States v. 

Byers, 649 F.3d 197, 206 (4th Cir. 2011). Under Rule 404(b), 

evidence of other bad acts may be admitted as proof of “motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident,” but “not . . . to 

prove a person’s character in order to show that on a particular 

occasion the person acted in accordance with [his] character.” 

Fed. R. Evid. 404(b). 

“Rule 404(b) is an inclusive rule, admitting all evidence 

of other crimes or acts except that which tends to prove only 

criminal disposition.” United States v. Wilson, 624 F.3d 640, 

651 (4th Cir. 2010) (internal quotation marks omitted). “To be 

admissible under Rule 404(b), evidence must be (1) relevant to 

an issue other than character; (2) necessary; and (3) reliable.” 

United States v. Siegel, 536 F.3d 306, 317 (4th Cir. 2008) 

(internal quotation marks omitted). Nevertheless, potential 

Rule 404(b) evidence should be excluded if its probative value 

is substantially outweighed by its unfair prejudice to the 
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defendant. United States v. Johnson, 617 F.3d 286, 296–97 (4th 

Cir. 2010). 

Our review of the record confirms that Deputy Barbagallo’s 

testimony meets all the criteria for admissibility under Rule 

404(b). Moreover, despite Stewart’s suggestion to the contrary, 

the district court’s careful ruling with regard to the scope of 

Barbagallo’s testimony, combined with the limiting jury 

instructions, eliminated the risk of unfair prejudice. 

We likewise find no abuse of discretion in admitting 

evidence of Stewart’s two prior convictions for possessing 

firearms as a convicted felon. See accord United States v. 

Moran, 503 F.3d 1135, 1144 (10th Cir. 2007) (“[T]he fact that 

[defendant] knowingly possessed a firearm in the past supports 

the inference that he had the same knowledge in the context of 

the charged offense.”); United States v. Jernigan, 341 F.3d 

1273, 1281 (11th Cir. 2003) (“[T]he caselaw in this and other 

circuits establishes clearly the logical connection between a 

convicted felon’s knowing possession of a firearm at one time 

and his knowledge that a firearm is present at a subsequent time 

(or, put differently, that his possession at the subsequent time 

is not mistaken or accidental).”); United States v. Cassell, 292 

F.3d 788, 794-95 (D.C. Cir. 2002) (“A prior history of 

intentionally possessing guns, or for that matter chattels of 

any sort, is certainly relevant to the determination of whether 
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a person in proximity to such a chattel on the occasion under 

litigation knew what he was possessing and intended to do so.”). 

However, even if we were to conclude that the district 

court erred in admitting the Rule 404(b) evidence, Stewart would 

not be entitled to relief unless we also found that the error 

was not harmless. See United States v. Lighty, 616 F.3d 321, 

355 (4th Cir. 2010). “Where error is founded on a violation of 

Rule 404(b), the test for harmlessness is whether we can say 

with fair assurance, after pondering all that happened without 

stripping the erroneous action from the whole, that the judgment 

was not substantially swayed by the error.” Id. (internal 

quotation marks omitted). As discussed above with regard to the 

sufficiency of the Government’s evidence, we readily conclude 

that the jury’s verdict was not substantially swayed by the 

admission of either Deputy Barbagallo’s testimony or evidence of 

Stewart’s two prior felon-in-possession convictions.

Accordingly, we affirm the criminal 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