                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4021


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JOHNNY LYNN BAKER,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:07-cr-00435-JRS-1)


Submitted:    October 28, 2009              Decided:   November 6, 2009


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Steven Jay Rozan, STEVEN JAY      ROZAN & ASSOCIATES, Houston, Texas,
for   Appellant.  Dana  J.       Boente,   United   States  Attorney,
Samuel E. Fishel, Special        Assistant United States Attorney,
Elizabeth C. Wu, Assistant        United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             A jury convicted Johnny Baker of possession of child

pornography, in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West

Supp. 2009).     The district court sentenced Baker to 108 months

of imprisonment and Baker now appeals.                   Finding no error, we

affirm.

             Baker    argues      that    the   district       court       abused    its

discretion in admitting evidence of Baker’s possession of images

and videos of child pornography that were not charged in the

indictment.     We review a district court’s determination of the

admissibility of evidence under Fed. R. Evid. 404(b) for abuse

of discretion.        United States v. Queen, 132 F.3d 991, 995 (4th

Cir.   1997).        An   abuse    of    discretion     occurs      only    when    “the

[district] court acted arbitrarily or irrationally in admitting

evidence.”      United States v. Williams, 445 F.3d 724, 732 (4th

Cir. 2006) (internal quotation marks and citation omitted).

             Rule 404(b) prohibits the admission of “[e]vidence of

other crimes, wrongs, or acts . . . to prove the character of a

person in order to show action in conformity therewith.”                            Fed.

R.   Evid.   404(b).       However,      such   evidence      is    “admissible      for

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

preparation,      plan,         knowledge,      identity,          or   absence       of

mistake. . .    .”        Id.     Rule    404(b)   is    an   inclusionary          rule,

allowing evidence of other crimes or acts to be admitted, except

                                           2
that which tends to prove only criminal disposition.                                See Queen,

132 F.3d at 994-95.

                 For    such     evidence        to     be    admissible,      it    must        be

“(1) relevant to an issue other than the general character of

the defendant; (2) necessary to prove an element of the charged

offense; and (3) reliable.”                      United States v. Hodge, 354 F.3d

305,      312    (4th     Cir.    2004)      (citing         Queen,   132   F.3d     at    997).

Additionally, the probative value of the evidence must not be

substantially           outweighed         by     its    prejudicial        effect.             Id.

(citing Fed. R. Evid. 403).

                 Baker argues that the evidence of his possession of

uncharged         images       and    videos      of     child    pornography        was        not

relevant because there was insufficient evidence to demonstrate

that      the    images    were       in   fact       child    pornography     and       that    he

possessed the images.                 However, when the relevancy of evidence

depends on the fulfillment of a condition of fact, the district

court “simply examines all the evidence in the case and decides

whether the jury could reasonably find the condition fact . . .

by    a    preponderance         of    the      evidence.”        Huddleston        v.    United

States, 485 U.S. 681, 690 (1988).                        We have reviewed the record

on appeal and conclude that there was sufficient evidence for

the       jury   to     conclude      that      the     uncharged     images    and       videos

contained child pornography and that Baker possessed them.



                                                  3
            Accordingly, we affirm the judgment of the district

court.     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




                                    4
