                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-4836


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JOHN GLENN BARTLEY,

                     Defendant - Appellant.



Appeal from the United States District Court for the Northern District of West Virginia, at
Clarksburg. Irene M. Keeley, District Judge. (1:15-cr-00018-IMK-MJA-1)


Submitted: September 29, 2017                                 Decided: October 11, 2017


Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West Virginia, for
Appellant. Sarah W. Montoro, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       John Glenn Bartley appeals his convictions and 71-month sentence after a jury

found him guilty of three counts of stalking, in violation of 18 U.S.C.A. §§ 2261A(2)(B),

2261(b)(5), (6) (West 2015), and one count of interstate travel to violate a protective order,

in violation of 18 U.S.C. §§ 2262(a)(1), (b)(5), (6) (2012) (J.A. 21-24). On appeal, Bartley

challenges the sufficiency of the evidence supporting his § 2262(a)(1) conviction and the

district court’s admission of certain testimony, refusal to give his requested “harassment”

instruction, and application of an upward departure based on the extreme psychological

injury to the victim. We affirm.

       Bartley argues that the district court should not have admitted testimony from his

former fiancée under Fed. R. Evid. 404(b) and 403. “Federal Rule of Evidence 404(b)(1)

provides that evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance with

the character.” United States v. Hall, 858 F.3d 254, 265 (4th Cir. 2017) (brackets and

internal quotation marks omitted). “Although ‘other acts’ evidence is not admissible to

prove criminal propensity, such evidence ‘may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.’” Id. at 266 (quoting Fed. R. Evid. 404(b)(2)). “To be

admissible under Rule 404(b), the evidence must be (1) relevant to an issue other than the

general character of the defendant, (2) necessary to prove an essential claim or element of

the charged offense, and (3) reliable.” United States v. Sterling, 860 F.3d 233, 246 (4th

Cir. 2017). “Additionally, Rule 403 demands that the evidence’s probative value not be

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substantially outweighed by its unfair prejudice to the defendant.” Id. at 246-47; see also

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). We have reviewed the trial

transcript with these standards in mind and conclude that the district court did not abuse its

discretion in admitting the challenged testimony under Rules 404(b) and 403. See Hall,

858 F.3d at 264 (stating standard of review).

       Next, Bartley argues that the district court’s failure to adopt his definition of

“harassment,” which required words, actions, or conduct that the victim directly received

or observed, impaired his ability to present his defense. We review de novo whether the

district court properly instructed the jury on the applicable law. United States v. Woods,

710 F.3d 195, 207 (4th Cir. 2013). “A district court’s decision to give (or not to give) a

jury instruction is reviewed for abuse of discretion” and will “amount[] to reversible error

only if the proffered instruction: (1) was correct, (2) was not substantially covered by the

charge that the district court actually gave to the jury, and (3) involved some point so

important that the failure to give the instruction seriously impaired the defendant’s

defense.” United States v. Hager, 721 F.3d 167, 184 (4th Cir. 2013) (brackets, ellipsis, and

internal quotation marks omitted).

       Bartley correctly notes that the stalking statute, 18 U.S.C.A. § 2261A(2)(B), does

not define the terms “harass” or “harassment.” Although Bartley asserts that violation of

the statute could only be predicated on harassment directed at Witt, not at third parties, he

provides no legal support for that assertion. We conclude that the district court properly

instructed the jury that Bartley’s conduct could be directed at third parties but that the jury

must “find beyond a reasonable doubt that he specifically intended for such words, conduct,

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or actions to annoy, alarm, or cause substantial emotional distress to [the victim].” (Joint

App’x 538-39); see United States v. Osinger, 753 F.3d 939, 941 (9th Cir. 2014) (upholding

stalking conviction where defendant “sent several threatening and sexually explicit text

messages, emails, and photographs of [the victim] to [the victim], as well as to her co-

workers and friends”); United States v. Petrovic, 701 F.3d 849, 860 (8th Cir. 2012)

(upholding stalking conviction where defendant sent sexually explicit pictures of his ex-

wife to her place of employment, her boss, and her relatives). Therefore, this claim fails.

       Bartley also argues that the evidence does not support his conviction for interstate

travel to violate a protective order under 18 U.S.C. § 2262(a)(1). In reviewing the

sufficiency of the evidence, we consider “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Robinson, 855 F.3d

265, 268 (4th Cir. 2017). In doing so, we recognize that it is the jury’s task “to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Id. (internal quotation marks omitted). Our review of the

trial transcript leads us to conclude that the evidence supports Bartley’s § 2262(a)(1)

conviction.

       Finally, Bartley argues that the district court erred when it upwardly departed one

offense level under U.S. Sentencing Guidelines Manual § 5K2.3, p.s. (2015), for extreme

psychological injury to the victim. We “review all sentences—whether inside, just outside,

or significantly outside the Guidelines range—under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “When reviewing a departure,

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we consider whether the sentencing court acted reasonably both with respect to its decision

to impose such a sentence and with respect to the extent of the divergence from the

sentencing range.” United States v. Howard, 773 F.3d 519, 529 (4th Cir. 2014) (internal

quotation marks omitted).      We give “considerable deference” to a district court’s

application of an upward departure for psychological injury to a victim. United States v.

Gary, 18 F.3d 1123, 1129 (4th Cir. 1994) (internal quotation marks omitted). Although

Bartley asserts that the district court did not make any findings regarding the victim’s

mental state and psychological injury as compared to that normally resulting from the

commission of the offense, the record belies his argument. Accordingly, we conclude that

the district court did not err in applying § 5K2.3, p.s., and that the extent of the departure

is reasonable.

       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 this court and argument would not aid the decisional process.

                                                                                 AFFIRMED




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