     Case: 14-30855      Document: 00513187926         Page: 1    Date Filed: 09/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30855
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 10, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ELTON RAY JONES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:12-CR-333-1


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM: *
       Elton Ray Jones appeals his conviction of attempting to entice a minor
to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b). On
September 11, 2012, Jones contacted a detective with the Louisiana State
Police who was posing as a 14-year old girl named Jenny Dupre in an Internet
chatroom. The chat conversations eventually led to an attempted meeting
between Jones and Jenny. Jones was arrested and subsequently charged.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-30855

Prior to trial, the Government filed a notice of intent to offer at trial, pursuant
to Federal Rule of Evidence 404(b), evidence that at the same time Jones was
engaged in the charged conduct involving Jenny, he was engaged in similar
conduct involving another purported minor, Ashton Thibodaux, who was in
fact a detective with the Kenner Police Department.
      Jones challenges the sufficiency of the evidence, contending that there
was insufficient evidence that he believed Jenny to be a minor under the age
of 18. Jones also argues that the district court erred by admitting evidence of
the uncharged conduct involving Ashton Thibodaux.           He asserts that the
evidence related to Ashton was not relevant to the charged offense and that
the evidence was more prejudicial than probative.
      Because Jones properly preserved his challenge to the sufficiency of the
evidence by moving for a judgment of acquittal after the close of all evidence,
the district court’s denial of his motion for judgment of acquittal is reviewed de
novo. United States v. Harris, 740 F.3d 956, 962 (5th Cir.), cert. denied, 135 S.
Ct. 54 (2014). In reviewing the evidence, this court will examine “all evidence
in the light most favorable to the verdict to determine whether a rational trier
of fact could have found that the evidence established the essential elements
of the offense beyond a reasonable doubt.” Id. (internal quotation marks and
citation omitted). “The evidence need not exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except that of
guilt, and the jury is free to choose among reasonable constructions of the
evidence.” United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014) (internal
quotation marks and citation omitted).
      Jones’s challenge to the sufficiency of the evidence is unavailing. From
the evidence offered at trial, the jury could have inferred that Jones was aware
that he was communicating with a minor under the age of 18. In an early



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                                  No. 14-30855

online chat, Jenny identified herself as a 14-year old female in Lafayette.
Throughout the chat logs, Jenny repeatedly and consistently referenced her
mother, her homework and schooling, and her fear that she “might get in
trouble” for talking to him. Jones acknowledged these facts by asking Jenny
what time her mother got home from work to coordinate their meeting. Jones
expressed concern that Jenny’s mother might discover their proposed meeting.
Jones reassured Jenny that she would not get in trouble if they “were careful”
and told no one of their plans.
        The content of the chat logs, including a clear statement from Jenny
regarding her age, repeated references to homeschooling, homework, and her
mother provided the jury with more than sufficient evidence to find that Jones
believed Jenny to be under the age of 18. See United States v. Lundy, 676 F.3d
444, 450 (5th Cir. 2012). Certainly a rational jury could have discredited
Jones’s explanation that he believed Jenny to be over the age of 18, especially
in light of the repeated references to Jenny’s mother by both chat participants,
as well as the frequent expressions by both of them that they should take steps
to ensure they were not discovered. See United States v. Flores-Chapa, 48 F.3d
156, 161 (5th Cir. 1995) (“Juries are free to use their common sense and apply
common knowledge, observation, and experience gained in the ordinary affairs
of life when giving effect to the inferences that may reasonably be drawn from
the evidence.”). Jones’s construction of the evidence, that he believed Jenny to
be an adult, is one that the jury was entitled to reject. See Lewis, 774 F.3d at
841.
        Jones also contests the admission of evidence related to online chat
conversations with Ashton Thibodaux.       We find it unnecessary to resolve
whether this evidence was erroneously admitted pursuant to Rule 404(b),
because we conclude that any error in admitting this evidence was harmless.



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                                  No. 14-30855

When a jury hears information unfairly prejudicial to a defendant, “[r]eversal
is not required unless there is a reasonable possibility that the improperly
admitted evidence contributed to the conviction.” United States v. Flores, 640
F.3d 638, 643 (5th Cir. 2011) (internal quotation marks and citation omitted).
When other evidence of guilt is overwhelming, and the error does not
substantially influence the jury’s verdict, the error is harmless. United States
v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008). Here, the Government presented
evidence that Jenny identified herself as a 14-year old girl and repeatedly and
consistently maintained that she was homeschooled by her mother and that
she “might get in trouble” for talking with Jones, facts which Jones
acknowledged throughout the chat logs. What is more, as Jones admits in his
brief, the evidence related to Ashton was relatively benign—the conversations
did not proceed beyond simple conversation and did not contain any sexually
explicit communication. Given the overwhelming nature of the evidence as it
related to the charged offense, even assuming error in the admission of the
Rule 404(b) evidence, the error was harmless. See Hawley, 516 F.3d at 268. In
addition, the benign nature of the Ashton evidence, as compared to the
evidence related to the charged offense, belies any concern that it had an effect
on the jury’s verdict. See United States v. Gutierrez-Mendez, 752 F.3d 418, 427
(5th Cir.), cert. denied, 135 S. Ct. 298 (2014).
      The judgment of the district court is AFFIRMED.




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