UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4033

VINCENT LEE HIMES,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

James C. Turk, District Judge; Glen M. Williams,

Senior District Judge.

(CR-96-18-A)

Submitted: October 31, 1997

Decided: December 16, 1997

Before LUTTIG and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney, Rick A. Mountcastle, Assistant United States Attorney, Abingdon, Virginia; Thomas

E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

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OPINION

PER CURIAM:

Vincent Lee Himes appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C.§ 922(g)(1)

(1994), and for receiving a stolen firearm transported in interstate

commerce, in violation of 18 U.S.C. § 922(j) (1994). We affirm.

The evidence at trial showed that in October 1995, Himes and two

friends, Larry Crumley and Jason Worley, drove to an apartment

complex in Bristol, Virginia, and broke into three parked cars. Himes

stole stereo equipment from two of the cars and a duffle bag from the

third car. When Himes looked in the duffle bag, he found a .22 caliber

pistol. After determining that the pistol was unloaded he handed it to

Worley, who later sold the gun.

In November 1995, Himes, Crumley, and Angela Trinkle drove to

the United Parcel Service parking lot in Bristol, Virginia, and broke

into a jeep but found nothing worth stealing. Himes then broke into

a pickup truck and stole a shotgun and ammunition. Himes placed the

shotgun in the backseat of his car and drove to a nearby store. On the

way, a police officer stopped Himes for a traffic violation and found

the shotgun in the backseat. Himes told the police officer that the

shotgun belonged to his brother. The officer seized the shotgun. On

the following day, Himes instructed Crumley to go the police station

and claim the shotgun.

The Government also presented evidence that Himes possessed and

transferred other firearms and was involved in prior vehicle break-ins.

Jason Worley testified that in July or August 1995, he and Himes

broke into a truck at an apartment complex and stole stereo equipment. Worley also testified that prior to the October 1995 incident,

Himes offered to sell him a .22 caliber pistol. Larry Crumley testified

that Himes sold him a handgun in 1995. He also testified that he saw

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Himes with two different .22 caliber pistols before the October 1995

incident and that Himes had stolen a gun from a police officer's car.

Several other witnesses testified that they saw Himes with other guns

and Himes had offered to sell those guns. Himes objected to the evidence and the court instructed the jury that the evidence was being

permitted to show a pattern of conduct. Himes did not object to the

instruction.

On appeal, Himes asserts that the district court erred by admitting

Fed. R. Evid. 404(b) evidence at trial. We review the district court's

decision to admit Fed. R. Evid. 404(b) evidence for abuse of discretion, and we will not reverse that decision unless it was "`arbitrary

and irrational.'" See United States v. Chin , 83 F.3d 83, 87 (4th Cir.

1996) (quoting United States v. Powers, 59 F.3d 1460, 1464-65 (4th

Cir. 1995), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3485 (U.S. Jan.

16, 1996) (No. 95-6391)). Rule 404(b) permits evidence of other

crimes, wrongs, or acts to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Evidence which has no purpose except to show criminal disposition

is excluded. See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir.

1997). Thus, the court may admit any evidence which is relevant to

any issue other than character, is necessary, and is reliable. Id. (quoting United States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991)). Such

evidence may be excluded, however, if it is more prejudicial than probative. Sanchez, 118 F.3d at 196.

The record shows that the evidence of Himes's prior acts was not

used solely to show bad character, but rather, to show motive. Himes

had a financial interest in acquiring firearms. Further, the evidence

showed that Himes's possession of the firearms was not the result of

a mistake or accident. See Sanchez, 118 F.3d at 195-96. The evidence

of previous car break-ins showed a pattern of action and modus operandi. See id. Himes fails to show that the probative value of the evidence of other gun possessions and car break-ins was outweighed by

the prejudicial effect of the testimony. See Fed. R. Evid. 403;

Sanchez, 118 F.3d at 196. Further, any possible prejudice was minimized by the court's instruction that the evidence could be considered

only to show a pattern of conduct, and that the jury was to concern

itself with "the actual guns and the actual stolen property that's

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involved in these indictments." (J.A. 262). See United States v.

Teague, 737 F.2d 378, 381 (4th Cir. 1984).

Himes also asserts that the evidence was insufficient to sustain

count five of the indictment, charging Himes with the possession,

receipt, and disposal of a stolen firearm, because the evidence did not

show that he disposed of the weapon. To sustain a conviction, the evidence viewed in the light most favorable to the Government must be

sufficient for a rational jury to find the essential elements of the crime

beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60,

80 (1942); United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.

1993). When a jury returns a verdict on an indictment that charges

several acts in the conjunctive, the verdict stands if the evidence is

sufficient with respect to any act. See Griffin v. United States, 502

U.S. 46, 56-57 (1991) (quoting Turner v. United States, 396 U.S. 398,

420 (1970). Under 18 U.S.C. § 922(j), it is unlawful "for any person

to receive, possess, conceal, store, barter, sell, or dispose of any stolen

firearm" in interstate commerce knowing that the firearm has been

stolen. The firearm in question was the shotgun stolen in November

1995 from the truck in the UPS parking lot. The evidence showed that

Himes possessed and received the shotgun when he took it from the

truck he had broken into. Thus, even if Himes did not dispose of the

weapon, his conviction must stand because the evidence is sufficient

to show that Himes received and possessed the weapon.

Accordingly, we affirm Himes's conviction. 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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