UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4767

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FREEMAN DARRELL WELCH,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Bryson City. Lacy H. Thornburg,

District Judge. (2:05-cr-00008)

Submitted: May 30, 2007 Decided: July 11, 2007 

Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North

Carolina, for Appellant. Gretchen C. F. Shappert, United States

Attorney, Charlotte, North Carolina, Don D. Gast, Assistant United

States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
- 2 -

PER CURIAM:

Freeman Darrell Welch appeals his jury conviction and

life sentence for first degree murder in Indian country, in

violation of 18 U.S.C. §§ 1111 and 1153. Following an evening of

heavy drinking, Welch severely and repeatedly stabbed his wife, who

died at the scene. Welch asserts the district court erred when it

admitted evidence of an unrelated assault that occurred ten years

prior involving Welch attacking Merlin Brown with a knife. This

earlier assault also occurred while Welch was intoxicated, and

Welch claimed directly afterwards that he did not remember

assaulting Brown. He argues this evidence was not relevant or

probative of his state of mind at the time he assaulted his wife

and was unduly prejudicial.

We review the district court’s admission of evidence for

an abuse of discretion. See United States v. Hodge, 354 F.3d 305,

312 (4th Cir. 2004). “[A]n abuse [of discretion occurs only when

it can be said that the trial court acted arbitrarily or

irrationally in admitting evidence.” United States v. Williams,

445 F.3d 724, 732 (4th Cir), cert. denied 127 S. Ct. 314 (2006).

Although inadmissible solely to prove the character of a defendant,

evidence of other crimes, wrongs, or acts “may . . . be admissible

for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Fed. R. Evid. 404(b). Rule 404(b) is an inclusive
- 3 -

rule, allowing only evidence of other crimes or acts that which

tends to prove only criminal disposition. Such evidence is

admissible if it is necessary, reliable, and relevant to an issue

other than the defendant’s character. United States v. Queen, 132

F.3d 991, 994-95, 997 (4th Cir. 1997). If the prior act evidence

meets these criteria and the probative value is not substantially

outweighed by its prejudicial effect, it may be admitted. Id. at

997. Limiting jury instructions explaining the purpose for

admitting such evidence and advance notice of the intent to

introduce prior act evidence provide additional protection to

defendants. Id.

In considering the relevance of the questioned evidence,

“the more similar the prior act is (in terms of physical similarity

or mental state) to the act being proved, the more relevant it

becomes.” Queen, 132 F.3d at 997. Welch’s prior assault and

purported defense that he did not remember assaulting the victim

were very similar to the present crime. Welch argues here that due

to intoxication, he could not have premeditated or deliberated the

assault on his wife. The evidence of Welch’s prior assault on

Merlin Brown while intoxicated and his purported lack of memory of

the assault was admissible under Rule 404(b) and was not unfairly

prejudicial. The similarity of the conduct alleged tends to

demonstrate the absence of mistake or accident and reveals a

pattern in which Welch claims that due to his intoxication he does
- 4 -

not remember his bad acts. Moreover, the occurrence of the prior

assault and Welch’s assertion he “blacked-out” only for the very

brief time of the assault in both instances helped demonstrate that

the defense of intoxication here was not worthy of belief. These

are permissible purposes for admission of evidence under Rule

404(b). See, e.g., United States v. Teague, 737 F.2d 378, 381 (4th

Cir. 1984). Nor was the evidence unduly prejudicial——it was not

lurid or inflammatory, nor did it tend to cause the jury to decide

the case against Welch on an irrational basis. See United

States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996). It simply

underlined the fact that Welch had become violent while intoxicated

before and he similarly claimed that he was so impaired that he did

not remember the assault, but remembered clearly the events leading

up to the assault and the events directly following. 

Moreover, the district court minimized the risk of unfair

prejudice by explaining the proper uses of other crimes evidence

when the evidence was introduced and in the jury charge prior to

deliberation. Queen, 132 F.3d at 997; see United States v. Alerre,

430 F.3d 681, 692 (4th Cir. 2005) (“Ordinarily, of course, we

presume that a properly instructed jury has acted in a manner

consistent with the instructions.”), cert. denied, 126 S. Ct. 1925

(2006)). Given these facts, we find the district court did not

abuse its discretion in allowing the evidence pursuant to Rule

404(b).
- 5 -

Welch asserts the district court abused its discretion

when it permitted the Government’s expert witness to testify in

rebuttal, because he was not placed on notice of the witness’s

testimony in violation of Fed. R. Crim. P. Rule 16. Welch argues

that the Government intentionally gave the expert’s report to Welch

only minutes before the witness testified, and Welch’s counsel did

not have time to adequately prepare cross-examination.

Decisions regarding compliance with Rule 16 are also

reviewed for abuse of discretion. See United States v. Young, 248

F.3d 260, 269 (4th Cir. 2001). Again, the court will find such an

abuse of discretion only if the district court’s evidentiary ruling

was arbitrary or irrational. Williams, 445 F.3d at 732. While the

report was given to Welch just minutes before Dr. White testified,

Welch twice received notice of the Government’s intent to use an

expert witness, who remained on stand-by for rebuttal purposes.

Welch could have requested the expert report, but did not so.

Welch’s decision not to request the expert report before the trial

date was a strategic choice. Morever, counsel for Welch voiced a

“general objection” to the testimony of Dr. White but then merely

requested that he be permitted to ask Dr. White a few questions to

determine whether he should be admitted as an expert. Counsel

asked Dr. White questions about his background, and the expert was

admitted based upon these responses. Any purported discovery

violation did not prevent counsel from thoroughly cross-examining
- 6 -

Dr. White, and Welch did not suffer from substantial prejudice from

the timing of the disclosure of Dr. White’s report. The district

court’s decision to admit Dr. White’s testimony was not an abuse of

discretion.

For these reasons, we affirm Welch’s conviction and

sentence. 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