UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4784

EVERETT CEASAR GRIER, a/k/a

Timothy Jerome Avery,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Shelby.

Lacy H. Thornburg, District Judge.

(CR-97-83)

Submitted: February 16, 1999

Decided: March 18, 1999

Before WILKINS and TRAXLER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joel S. Trilling, Asheville, North Carolina, for Appellant. Mark T.

Calloway, United States Attorney, William A. Brafford, Assistant

United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Everett Ceasar Grier was convicted by a jury of one count of possession with intent to distribute cocaine base in violation of 21 U.S.C.

§ 841(a)(1) (1994), and one count of carrying a firearm in relation to

a drug trafficking crime in violation of 18 U.S.C.A.§ 924(c)(1) (West

1994 & Supp. 1998). He was sentenced to a 248 month term of

imprisonment. He appeals his conviction. Finding no reversible error,

we affirm.

Grier was arrested after the automobile in which he was a passenger was stopped by a police officer responding to a trespassing complaint at an apartment complex. Pursuant to a consent search of the

vehicle, a bag containing 323.3 grams of cocaine base was found on

the floor of the automobile, partially under Grier's seat. When the

officer frisked Grier he found a loaded weapon in Grier's waistband

or belt. During a more thorough search of Grier at the police station,

a "chunk" of cocaine base slightly larger than a fifty cent piece was

recovered from Grier's pocket, and $490 cash was recovered from

Grier's undergarments.

The driver of the vehicle, Roy Junior Young, was also arrested

after police found approximately eight crack cocaine rocks on him.1

Young pled guilty in state court to possession with intent to sell and

deliver the eight rocks. Young testified against Grier at Grier's trial.

While Grier testified that the bag containing the cocaine base did not

belong to him, Young testified that Grier had the bag with him before

Grier got into Young's vehicle.2

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1 There was also a third passenger in the vehicle, Rolland Davidson; he

was not arrested or charged in connection with the stop. Davidson did

not testify at Grier's trial because he could not be located.

2 The vehicle actually belonged to Young's father, but Young consistently used it as his method of transportation.

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Grier raises four evidentiary issues on appeal. This court reviews

a district court's ruling on the relevance and admissibility of evidence

for abuse of discretion, and reverses only if the error was not harmless. See United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995);

United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1995). "In order

to find a district court's error harmless, we need only be able to 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." Brooks , 111 F.3d at 371 (quotation

and citation omitted).

Grier first alleges that the district court abused its discretion in

allowing testimony regarding the nature of the gun and bullets found

on Grier. The gun was a semi-automatic handgun, and it was loaded

with hollow point bullets. At trial, one police officer testified regarding the technical operation of a semi-automatic handgun, and stated

that it was similar to the type of gun carried by police officers.

Another police officer described how hollow point bullets technically

differ from most bullets, and stated that hollow point bullets "create

more damage." Defendant asserts that this testimony was not relevant

to the crimes charged and was prejudicial.

Evidence that is relevant is admissible unless excluded for some

other purpose. See Fed. R. Evid. 402; Westfield Ins. Co. v. Harris, 134

F.3d 608, 614 (4th Cir. 1998). Evidence is relevant if it has "any tendency" to make a material fact more or less probable than it would

be without the evidence. Fed. R. Evid. 401. One reason for excluding

relevant evidence is that the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice." Fed. R.

Evid. 403. However, this possibly prejudicial effect requires exclusion "only in those instances where the trial judge believes that there

is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative

value of the offered evidence." Westfield Ins. Co., 134 F.3d at 614

(quotation and citations omitted).

The Government submits that the testimony regarding the nature of

the gun and bullets was relevant because it tended to show that Grier,

and not Young, was the drug dealer and thus the likely owner of the

bag of cocaine base. The Government further contends that the evi-

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dence tended to show that the gun and bullets were"serious tools of

the (drug) trade."

The district court did not abuse its discretion in allowing this testimony. The evidence had a mild tendency to establish which of the

two men owned the bag of cocaine base and thus was slightly relevant. Although the Government may have simply pointed out that

Grier was carrying a gun and Young was not, the fact that Grier was

carrying a loaded semi-automatic handgun with hollow point bullets

does "furnish[ ] part of the context of the crime." See United States

v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (quotation and citation

omitted), cert. denied, ___ U.S. #6D 6D6D#, 66 U.S.L.W. 3704 (U.S. Apr. 27,

1998) (No. 97-8487). Nor is there reason to have excluded the evidence under Rule 403; to the extent that the evidence was prejudicial,

it was not unfairly so. See United States v. Grimmond, 137 F.3d 823,

833 (4th Cir. 1998), cert. denied, #6D6D 6D# U.S. ___, 67 U.S.L.W. 3232

(No. 97-9416) (U.S. Oct. 5, 1998).

Grier also argues that the district court abused its discretion in

allowing testimony that Grier stole the handgun. During cross examination, the prosecutor asked Grier, "did you know that gun was

stolen?" In response Grier stated that he had stolen the gun. The prosecutor then asked several questions about stealing the gun. Grier now

asserts that this line of questioning violated the Federal Rules of Evidence, including Rule 404(b).

It is not clear how inquiry regarding the gun's pedigree could have

been probative of the charges for which Grier was on trial. However,

to the extent that this line of questioning was improper, any error was

harmless. First, there was little doubt that Grier had been carrying a

gun because the police recovered it from him at his arrest. Second,

regarding whether the bag of cocaine base belonged to Grier or

Young, there was significant circumstantial evidence implicating

Grier: Grier, and not Young, was carrying a loaded weapon and a

large amount of cash; the drugs were found on the floor of the vehicle, partially under Grier's seat. In addition, Young testified that the

bag was Grier's. Therefore, we can conclude with confidence that the

judgment was not substantially swayed by the prosecutor's inquiry as

to whether Grier knew the weapon to have been stolen, even if the

line of questioning was in error. See Brooks, 111 F.3d at 371.

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Grier next alleges that the district court abused its discretion in

allowing the prosecutor to question Grier regarding an alleged shooting. On cross examination, the prosecutor asked Grier if Grier used

the gun to shoot Troy Linn Thompson in the leg, thus introducing an

alleged incident with no clear connection to the crimes for which

Grier was being tried. Over defense objections, the question was

allowed and repeated. However, Grier invoked his Fifth Amendment

privilege and never answered. Grier argues that the questioning could

not have produced relevant evidence, was prejudicial, and was meant

to elicit inadmissible character evidence under Fed. R. Evid. 404(b).

It is less than obvious what relevance Grier's alleged shooting of

a person would have to the subject of Grier's trial. However, we again

conclude that, even if this line of questioning was improper, the judgment was not substantially swayed by the error. See Brooks, 111 F.3d

at 671.

Finally, Grier contends that the district court abused its discretion

in allowing testimony regarding the exact method by which Grier

smoked crack cocaine. During cross examination, Grier stated that

about fifteen minutes before being stopped by the police in Young's

vehicle, Grier smoked crack cocaine; Grier explained how one

smokes crack out of a can. Grier now maintains that this testimony

was irrelevant and prejudicial in light of the fact that he had already

admitted to being a crack smoker.

It was not an abuse of discretion for the district court to allow this

line of questioning. Even if the testimony was only slightly probative,

it was not unduly prejudicial, because Grier had already testified that

he was a crack smoker. Further, a defendant's admission of a fact

generally does not prevent the government from putting forward evidence to establish that fact. See United States v. Dunford, 148 F.3d

385, 394-96 (4th Cir. 1998) (holding that district court did not abuse

its discretion in admitting evidence of drugs and drug paraphernalia

seized from defendant's home even though defendant had stipulated

to being a drug user); see generally Old Chief v. United States, 519

U.S. 172, 186-87 (1997).

Accordingly, we affirm Grier's conviction. We dispense with oral

argument because the facts and legal contentions are adequately pre-

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sented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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