The Honorable John R. Tunheim, United States District Judge for the District 1 of Minnesota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1963

_____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Ward Lewis Tomberlin, * * Appellant. *

_____________ Submitted: November 17, 1997 Filed: December 12, 1997

_____________ Before BOWMAN, LAY, and MURPHY, Circuit Judges.

_____________ BOWMAN, Circuit Judge.

War d Lewis Tomberlin appeals his drug conviction, arguing that the Distric t Court erred by admitting evidence of h is prior arrests. We find no error and therefore 1 affirm the conviction.-2- I. Pursuant to a valid wa

rrant, police officers searched the home of David Hogan. Tomberlin, the appellant in this case, was staying at Hogan's house and was presen t duri ng the search. Officers searched the first floor bedroom, which Tomberli n
occu pied, and found a number of items associated with the use and distribution o f drugs. These items included marijuana, seventy-three grams of methamphetamine , inosit ol (a cutting agent), playing cards (used to cut the methamphetamine), plasti c baggies, a Tanita electronic scale, and a blue Texas Instruments calculator.
Federal prosecutors charged Tomberl in with possession with intent to distribute methamphetamine in violation of § 21 U.S.C. 841(a)(1) (1994). For this offense, the government had to establish that Tomberlin was in possession of the metha mphetamine, Tomberl in

knew he was in possession of the methamphetamine, and Tomberli n inte nded to distribute some or all of the methamphetamine. Further, because th e government's theory of the case was that Tomberlin constructively possessed the drug items in question, to establish the element of possession the government was required to pro ve that Tomberlin intended to exercise dominion over the methamphetamine , Tomb erlinhad the power to exercise dominion over the methamphetamine, an d To mberlinknew he had the power to exercise dominion over the methamphetamine

. See United States v. Thomas , 58 F.3d 1318, 1322-23 (8th Cir. 1995) (citing Unite d States v. Henn eberry , 719 F.2d 941, 945 (8th Cir. 1983), cert. denied , 465 U.S. 1107 (1984)).
The key issue at trial was whether Tomberlin knew that the drugs recovered from his room were there, or whether, as the defense contended, they had been placed there with out his knowledge. The government introduced evidence of Tomberlin’s prio r arrests, all of which had resulted in convictions, under Federal Rule of Evidence 404(b) to show both his knowledge of possession and his intent to possess the drugs. Th e government's evidence included: 1) a 1989 conviction where Tomberlin attempted to-3-

flush narcotics down the toilet; 2) a 1993 conviction where Tomberlin fled from a car containing marijuana; 3) a 1993 conviction where Tomberlin attempted to dispose of crack cocaine from his pocket just before being apprehended; 4) a 1994 convictio n where Tomberlin escaped out of a back window, leaving behind plastic bags of drugs; 5) a 1996 conviction where Tomberlin fled from a car wherein officers found a bank bag containing plastic bags, playing cards matching those found during the search of Tomberl in's bedroom, a blue Texas Instruments calculator, and a Tanita electroni c scale.

II.

Th e issue before this Court is whether the District Court erred in allowing th e evidence of Tomberlin's prior arrests to be introduced under Federal Rule of Evidence 404(b). We review a district court's decision to admit evidence of a defendant's prior bad acts under an abuse-of-discretion standard. See United States v. Edwards , 91 F.3d 1101, 1103 (8th Cir. 1996). Federal Rule of Evide nce 404(b) permits a court to admit evidence of prior bad acts unless it tends to prove only a defendant’s crimina l disposit ion. Thus, evidence can be admitted under Rule 404(b) when a defendan t places “motive, opportunity, intent, preparat ion, plan, knowledge, identity, or absence of mistake or accident” at issue. Fed. R. Evid. 404(b). A defendant denies bot h kno wledge and intent when he asserts the “mere presence” defense--that he wa s present, but did not know of the presence of illegal drugs.

To mberlinargues that the District Court abused its discretion in admittin g evidence of his prior bad acts because knowledge and intent were not issues at trial. He contends hi s case is like United States v. Jenkins , 7 F.3d 803 (8th Cir. 1993). W e disagree.

In Jenkins , police obtained i nformation from two sources that Paul Jenkins had sold LSD. At first, Jenkins admitted to the sales and agreed to be an informant in-4-

exchange for leniency. But when Jenki ns failed to cooperate, federal officials charged him with two counts of distribution of a controlled substance.
Jenkins took the stand and denied any involvement in the drug sales. Because he unequivocally denied participation in the drug transactions, this Court ruled tha t intent was not an issue. See id. at 807. Instead, whether the transactions occurred at all was the issue. As a result, this Court held that evidence of Jenkins's prior bad acts was not admissible under Rule 404(b). See id.

We believe the facts of Tomberlin' s case are closer to those in Thomas , 58 F.3d 1318, wherein we clar

ified Jenkins . In Thomas , police were attempting to execute an arrest warrant for Ronald Thomas. Police went to an apartment where they foun d Thomas. In the apartment, police seized crack cocaine and other drug-related items. Thomas was charged with violating 21 U.S.C. § 841(a)(1) b y possessing crack cocaine with i ntent to distribute. At trial, Thomas maintained that the apartment was not hi s and that h e had no knowledge of the presence of crack in the apartment. He asserted the “mere presence” defense, claiming to have been in the wrong place at the wrong time.

This C ourt held that when Thomas denied knowledge that the cocaine wa s present in the apartment, he directly challenged an element of § 841(a)(1): that h e “knew he was in possession” of cocaine. See id. at 1323. Also, Thomas’s defens e indirectly challeng ed the first element of constructive possession, that he “intended to
exerc ise dominion” over the cocaine, and element three of § 841(a)(1), that h e “intended t o distribute some or all” of the cocaine. See id. Thus, Thomas’s “mer e presence” defense raised issues of knowledge and intent. Evidence of his prior ba d acts was admissible under Rule 404(b).
Like Thomas, Tomberlin asserted a “mere presence” defense, which challenged b o th his knowledge and intent. Tomberlin admits his presence, i.e., that he occupied-5-

the bedroom, but cl aims he had no knowledge the methamphetamine and related drug items were there. This is fundamentally the same defense Thomas put forward

. Moreove r, like Thomas, Tomberlin was charged with possession of drugs with intent to dis tribute. This requires proof of intent to possess and proof of knowledge o f po ssession, both of which Tomberlin disputed. Furthermore, because this is a constructive possession case, indicia of knowledge is crucial.

This si tuation differs from that in Jenkins . Jenkins was charged with actua l distribution but d enied any involvement whatsoever in distributing the drugs. Jenkins did n ot assert his mere presence; he simply claimed he had nothing to do with an y crime. Jenkins therefore never placed intent or knowledge at issue. In our case , Tomberlin only denies actually having put the drugs in the bedroom. But this is no t denying any involvem

ent whatsoever in the crime because the crime is not putting the drugs in the room. Rather, the crime is possessing and intending to dis tribute the drugs. Just as in Thomas , when Tomberlin claimed he did n ot know that the inculpatory items were present in his room, he was asser ting the mere presence defense. In doing so, he directly challenged t

he elements of knowledge and intent, which the government was required to prove.

Because To mberlin asserted a mere presence defense, the challenged evidence
was a dmissible under Rule 404(b) to show knowledge and intent. In addition, ther e was sufficient evidence to support a finding that Tomberlin had committed the prior bad acts, s ee United States v. Drew , 894 F.2d 965, 971 (8th Cir.), cert. denied , 494 U.S. 1089 (1990), and the prior bad acts a re similar in kind and not remote in time from the crime charg ed, see id. at 969-70, thus satisfying the definition of "relevant evidence." See Fed. R. Evid. 401. F inally, the balancing test of Federal Rule of Evidence 403 is also satisf

ied, inasmuch as we are unable to say that the probative value of thi s evidence was sub stantially outweighed by the danger of unfair prejudice. See Drew , 894 F.2d at 971. In sum, we hold that t he District Court did not abuse its discretion in admitting the evidence of Tomberlin's prior bad acts.-6-

The judgment of the District Court is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.