UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 06-4809

UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus MICHAEL LOUIS BOYD, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Joseph F. Ander s o n, Jr., Chief District Judge. (0:05-cr-00945-JFA) Submitted: July 9, 2007 Decided: August 17, 2007 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion.

John H. Hare, Assistant Federal Public Defender, Columbia, S o uth Carolina, for Appel l a n t . Robert Claude Jendron, Jr., Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.- 2 -

PER CURIAM:

Michael Louis Boyd appeals his conviction for possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g) & 924(a)(2) (2000). His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Although informed of his right to do so, Boyd has not filed a pro se in f o rm al brief. The Government has declined to file a brief. Boyd’s counsel raises two potential evidentiary issues: whether the district court erred in admitting an audiotape and transcript of a 911 call and erred in refusing to permit defense counsel to cross examine a Government witness about his marijuana use the day before his testimony at trial. Finding no error, we affirm.

Counsel first r a i s es the issue of whether an audiotape and transcript of a 911 call should have be e nadmitted as an excited utterance and an exception to the hearsay rule. We review the distric t c ourt’s evidentiary rulings for an abuse of discretion. See United States v. Cooper, 482 F.3d 658, 662-63 (4th Cir. 2007). Melvin James’s statements during the 911 call were admissible under the excited utterance exception to the hearsay rule, which is “[a] statement relating to a startling event or condition made while the declarant was under the st r e s s of excitement caused by the event or condition.” Fed. R. Evid. 803( 2 ) . James’s statements were made under the stress of excitement caused by the shots at the club door. The court noted- 3 -

that James sounded excited on the tape of the call and that James testified he made the call immediately after the shots were fired. Therefore, we conclude that the district court did not abuse its dis c r e tion in admitting James’s 911 statements under the excited utterance exception to the hearsay rule.

Although ultimately concluding there was no error, Boyd’s counsel argues that the court erred in refusing to permit defense counsel to cross examine Bruce Johnson about his drug use the day before his trial testimony. Evidence of other acts is not admissible to prove bad character or criminal propensity, but such

e v i d e n ce is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence o f mistake or accident. S e e Fed. R. Evid. 404(b); United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). Rule 404(b) is an inclusive rule, allowing evidence of other crimes or acts except those which tend to prove only criminal disposition. Queen, 132 F.3d at 994-95; United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). Evidence of prior acts is admissible under Rules 404(b) and Fed. R. Evid. 403, if the evidence is: (1) relevant to an issue other than the general character of the defendant, (2) necessary, (3) reliable, and (4) the probative value of the evidence i s not substantially outweighed by its prejudicial value. Queen, 132 F.3d at 997.- 4 - Here, the district court gave Boyd the opportunity to cross examine Johnson regarding specific episodes of drug use during the day of the shootings and the day of his testimony at trial. When considering its ruling, the court also gave Boyd the opportunity to show that Johnson’s marijuana use the day before his testimony had lingering effects that impaired him the next day, but counsel was unable to demonstrate this. Thus, Johnson’s marijuana use the d a y b e f o re his testimony was not relevant to the issues abou t wh i c h he was testifying and the court did not abuse its d i s c r e t i o n i n r e f u s i n g t o p e rm i t e x am i n a t i o n o n t h e i s s u e. See Unit ed Sta tes v. Sa mpo l, 636 F. 2d 621 , 6 67 (D. C. Cir . 1 980 ); Uni ted Sta tes v. Leon ard , 494 F.2d955, 971- 72 (D .C. Cir. 1974 ) ( a w itn ess ’s pri or use of dr ugs is rel eva nt onl y as to the ab ili ty of the wi tne ss to per cei ve the un der lyi ng eve nts an d t est ifylu cid ly at tri al) .

In accordance with Anders, we have reviewed the e n t i re record in this case and have found no meritorious issues for appeal. We therefore affirm Boyd’s conviction and sentence. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Coun s e l ’ s motion must state that a copy thereof was served on the client.- 5 - We dispense with oral argument be c a u se the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED