                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4089


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARVIN ORLANDO DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00051-CCE-2)


Submitted:   October 28, 2014             Decided:   November 10, 2014


Before MOTZ, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC,
Greensboro, North Carolina, for Appellant.    Ripley Rand, United
States Attorney, T. Nick Matkins, Special Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              A jury convicted Marvin Orlando Davis of carjacking,

in violation of 18 U.S.C. §§ 2119(1), 2 (2012), and of carrying

and using by brandishing a firearm during and in relation to a

crime        of     violence,        in        violation     of         18      U.S.C.

§§ 924(c)(1)(A)(ii), 2 (2012).            On appeal, Davis claims that (1)

there       was   insufficient      evidence     to   support     his        carjacking

conviction *      and   (2)   the    district     court    erred    in       admitting

portions of the testimony of one witness.                  Finding no error, we

affirm.

                                          I.

              A person is guilty of carjacking if the Government

proves beyond a reasonable doubt that the person:                            “(1) with

intent to cause death or serious bodily harm (2) took a motor

vehicle (3) that had been transported, shipped or received in

interstate or foreign commerce (4) from the person or presence

of another (5) by force and violence or intimidation.”                          United

States v. Blake, 571 F.3d 331, 351 (4th Cir. 2009) (internal

quotation marks omitted).




        *
       Davis addresses only the carjacking conviction                           in   his
brief, and we limit our analysis to that offense.



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                                                 A.

            Davis        asserts          that       the      testimonial         evidence      was

insufficient to support his carjacking conviction.                                       We review

challenges    to    the     sufficiency                 of   evidence       de   novo.       United

States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010).                                     “The jury’s

verdict    must     be    upheld          on     appeal        if    there       is   substantial

evidence in the record to support it, where substantial evidence

is evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.”                            United States v. Perry, 757

F.3d 166, 175 (4th Cir. 2014) (emphasis and internal quotation

marks omitted).           In considering whether there is substantial

evidence to support a conviction, we must “view[] the evidence

and the reasonable inferences to be drawn therefrom in the light

most   favorable     to     the    Government.”                 Id.        (internal      quotation

marks omitted).

            Evidence       at     trial          included        testimony         from     Addison

Woods (the victim), Misty Neese (a witness), a cellblock mate of

Davis’s,     and    Larry       Byrnes         (a       Honda       employee      familiar    with

vehicle identification numbers).                         Woods testified that Davis and

Adam   Bradley      entered       a       room      occupied          by    Woods     and    Neese.

Bradley,   while     holding          a    pistol,           demanded       Woods’s    car    keys.

When Woods did not comply, Bradley struck Woods in the head with

the pistol, causing Woods to surrender his keys.                                 Davis searched

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Woods’s    pockets    and   took    Woods’s      wallet.       Davis    and    Bradley

exited the house and used Woods’s keys to operate Woods’s car.

According to Woods, Davis willingly participated in the offense.

            Neese    corroborated        Woods’s     testimony.        According      to

Neese, Bradley and another man entered her room, and Bradley

struck Woods in the head with a pistol.                     The man with Bradley

then searched Woods’s pockets, taking Woods’s wallet.                         Although

unable     to   identify    Davis     as       the   man    with    Bradley,     Neese

testified that that man willingly participated in the offense.

            The      testimony      of     Davis’s         cellblock     mate     also

corroborated      Woods’s   version      of     events.      This   witness     was    a

long-term acquaintance of Davis’s and was confined with Davis

for three months.       He testified that Davis admitted planning the

theft of Woods’s vehicle, including Bradley’s possession of the

pistol.     The witness’s testimony included details of the offense

similar to those provided by Woods and Neese.

            Finally, Byrnes testified that, based on its vehicle

identification number, Woods’s car was made in Ohio.

            This testimony provided the jury with ample evidence

to conclude that Davis was guilty of carjacking.                       Davis’s claim

that the witnesses were not credible fails, as “the jury, not

the reviewing court, weighs the credibility of the evidence and

resolves any conflicts in the evidence presented, and if the

evidence    supports     different,        reasonable       interpretations,       the

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jury decides which interpretation to believe.”                                 United States v.

Wilson, 484 F.3d 267, 283 (4th Cir. 2007) (internal quotation

marks omitted).             While Davis argues he merely borrowed Woods’s

car, the evidence that Bradley struck Woods in the head with a

pistol and Davis took Woods’s wallet supports the jury’s verdict

of carjacking.          Davis’s argument that he intended to return the

car is unpersuasive because intent to permanently deprive the

victim of his vehicle is not an element of carjacking.                                          United

States    v.    Payne,       83    F.3d    346,       347    (10th          Cir.   1996);       United

States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996).                                     Finally, the

trial     testimony         contradicts          Davis’s             argument       that       Bradley

coerced    him       into    stealing      Woods’s          car,       and    a    jury    may       rely

entirely       on    circumstantial         evidence             to    assess      a    defendant’s

intent.       See United States v. Ibisevic, 675 F.3d 342, 353 (4th

Cir.    2012).         Accordingly,         Davis       fails          to    sustain      his    heavy

burden     of       demonstrating         that        the    testimonial            evidence          was

insufficient to support his conviction for carjacking.

                                                 B.

               Next, Davis asserts that the fourth element of the

carjacking statute, taking the car “from the person or presence

of     another,”       is    satisfied       only           if       the     victim      is     in    or

immediately         next    to     his    vehicle       when          the    vehicle      is    taken.

Where    we     interpret         the    elements       of       a    criminal         statute,      the



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question is one of law that we review de novo.                         United States v.

Ryan-Webster, 353 F.3d 353, 359 (4th Cir. 2003).

               Every    circuit     to    have     considered      this    argument     has

concluded that the carjacking statute does not require that the

victim    be    in     or    immediately       beside     his   car,    and     has   found

sufficient evidence where the victim is in a building when his

car keys are forcibly taken from him and his car is parked

nearby.     See United States v. Casteel, 663 F.3d 1013, 1019-20

(8th Cir. 2011) (collecting cases).                     The circuits have reached

this   conclusion           by   applying      some   version      of     the   following

principle:       “A motor vehicle is in the presence of the victim if

it is so within his or her reach, inspection, observation, or

control that he or she could, if not overcome by violence or

prevented by fear, retain possession of it.”                         United States v.

Soler,    759     F.3d       226,   235     (2d    Cir.     2014).        Applying    this

principle to the facts of this case, we can easily conclude that

the evidence satisfies the “presence” element.

                                             II.

               Davis next contends that the district court erred in

admitting two portions of testimony.                        First, Davis challenges

the district court’s admission of testimony that Davis hatched a

plan to bribe Woods with drugs in exchange for Woods dropping

the charges, citing Fed. R. Evid. 404(b) and 403.                                As Davis

preserved       his     objections,       we       review    the     district     court’s

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admissibility      determination      for      abuse   of    discretion.     United

States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010).

            “Rule 404(b) prohibits evidence of other crimes or bad

acts committed by the defendant if offered solely to prove a

defendant’s bad character, but such evidence may be admissible

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

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

mistake or accident.”         United States v. Moore, 709 F.3d 287, 295

(4th Cir. 2013) (internal quotation marks omitted).                        As Rule

404(b) is inclusive in nature, this list “is not exhaustive,”

and evidence may be admitted for other purposes so long as the

evidence   does     not   tend   to     prove     only      criminal   disposition.

United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009).

Evidence admitted under Rule 404(b) must be “reliable,” United

States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004), and its

probative value must not be outweighed by unfair prejudice, Fed.

R. Evid. 403.

            A     defendant’s    plan      to    intimidate      or    influence   a

government witness demonstrates the defendant’s consciousness of

guilt and shows that the defendant knows “his case is a weak or

unfounded one.”       United States v. Van Metre, 150 F.3d 339, 352

(4th Cir. 1998) (internal quotation marks omitted).                         Davis’s

plan to bribe Woods undermined Davis’s defense that he borrowed

Woods’s    car.      As     Davis’s    cellblock        mate   provided    specific

                                           7
details    of    the   offense          and    had    known      Davis        for   years,     the

testimony was reliable.                   Nor is the probative value of this

evidence outweighed by any danger of unfair prejudice under Rule

403.      Evidence      of    a     defendant’s            consciousness        of     guilt    is

“highly probative” and, although “undoubtedly prejudicial,” not

unfairly so.        See United States v. Lentz, 524 F.3d 501, 525-26

(4th Cir. 2008) (finding no abuse of discretion where district

court    admitted      evidence         of    defendant’s         plan    to    kill    adverse

witness).        Accordingly, the district court did not abuse its

discretion by admitting this evidence.

            Second, Davis challenges testimony that Davis planned

to cry on the witness stand in order to gain juror sympathy.                                    At

trial,     Davis    objected         on       relevancy         and    Rule     403    grounds.

Evidence is “relevant” if it “has any tendency to make a fact

more or less probable than it would be without the evidence” and

“the fact is of consequence in determining the action.”                                 Fed. R.

Evid. 401(a)-(b).            Davis’s plan to cry on the stand tends to

prove his consciousness of guilt, and thus is relevant.                                        The

district    court      did     not       abuse       its    discretion         in     overruling

Davis’s objections.

            Finally,         and    for       the    first      time     on    appeal,     Davis

argues    that     evidence        of    his     plan      to    cry   on     the     stand    was

inadmissible       under     Rule       404(b).         Where     a    defendant       fails    to

preserve a ground for objection, we review the district court’s

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admission of evidence for plain error.                United States v. Zayyad,

741 F.3d 452, 459 (4th Cir. 2014).                    Given the weight of the

other   evidence    and    the    limited    focus    placed      on   the   disputed

evidence, Davis has not shown that admission of the evidence was

error, much less plain error, under Rule 404(b).

                                       III.

           Accordingly,          we   affirm    Davis’s          conviction.      We

dispense   with     oral    argument        because       the    facts   and   legal

contentions   are    adequately       presented      in    the    materials    before

this court and argument would not aid the decisional process.



                                                                             AFFIRMED




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