                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                          June 5, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                           No. 05-50505
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

   ROY RONALD HERNANDEZ, also known as Ray Ronald Hernandez,
                       also known as Grim,

                                                Defendant-Appellant.


           Appeal from the United States District Court
                 for the Western District of Texas
                          (5:03-CR-271-1)



Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Roy Ronald Hernandez was indicted for aiding and abetting the

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) and (2).   A jury found Hernandez guilty of the

charged offense, and the court sentenced him, inter alia, to 77

months   imprisonment.    Hernandez    challenges   his     conviction,

asserting the district court erred in admitting certain evidence



     *
       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this opinion should not be published and is not precedent except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.

                                 1
and charging the jury.       We review for abuse of discretion; there

was none.

     Hernandez contends the court erred in admitting evidence

related to his theft of beer earlier on the day the firearm was

seized.     The admission of evidence will be affirmed unless the

district    court   abused   its   discretion   and   the   defendant   was

prejudiced.    See United States v. Coleman, 78 F.3d 154, 156 (5th

Cir. 1996); see also FED. R. EVID. 103.         The threshold inquiry is

whether the evidence was extrinsic or intrinsic because Federal

Rule of Evidence 404(b) (disallowing evidence of “other crimes,

wrongs, or acts” when used to prove a defendant’s character but not

for “other purposes”) does not apply to intrinsic evidence.             See

Coleman, 78 F.3d at 156.

     The beer-theft evidence was intrinsic because it “complete[d]

the story of the crime”.           See id. It provided the necessary

explanation why the Officers stopped and searched the vehicle in

which Hernandez was a passenger, which led to the discovery of the

firearm.      See id.    Additionally, the probative value of the

evidence was not substantially outweighed by the danger of unfair

prejudice under Federal Rule of Evidence 403.

     Hernandez also contends the court erred by instructing on

aiding and abetting and constructive and joint possession. Because

Hernandez preserved these challenges in district court, review is

for abuse of discretion.       See United States v. Newell, 315 F.3d



                                     2
510, 528 (5th Cir. 2002).           There is none where the charge, as a

whole, is legally accurate and factually supportable, i.e., “the

court may not instruct the jury on a charge that is not supported

by evidence”.     United States v. Mendoza-Medina, 346 F.3d 121, 132

(5th Cir. 2003) (citation omitted), cert. denied, 540 U.S. 1156

(2004).

       The evidence sufficiently shows Hernandez:                  assisted the

possession of a firearm by a convicted felon; and had constructive

and joint possession of it.           See United States v. Fields, 72 F.3d

1200, 1212 (5th Cir.), cert. denied, 519 U.S. 807 (1996).

       Finally, Hernandez maintains the court erred in refusing part

of his proposed jury instruction.               The refusal of a requested

instruction is reviewed for abuse of discretion.                United States v.

Tomblin,    46   F.3d   1369,   1378     (5th   Cir.   1995).      Such   refusal

“constitutes error only if the instruction (1) was substantially

correct, (2) was not substantially covered in the charge delivered

to the jury, and (3) concerned an important issue so that the

failure to give it seriously impaired the defendant’s ability to

present a given defense”.           Id. at 1378-79 (citation and quotation

marks omitted).

       Hernandez concedes the charge is a correct statement of the

law.       Additionally,       it    substantially     covered     the    refused

instruction.     See Tomblin, 46 F.3d at 1378.           Moreover, the charge

permitted    Hernandez    to    assert    his   proposed   defense       that   his


                                         3
presence, without more, is not sufficient to establish constructive

possession.

                                                       AFFIRMED




                                4
