UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 94-5697
LENWOOD WEBSTER DAVIS, a/k/a
Tony Lee Miller,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, District Judge.
(CR-94-21)

Submitted: November 28, 1995

Decided: January 12, 1996

Before WIDENER, HAMILTON, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James S. Perry, PERRY, PERRY & PERRY, Kinston, North Caro-
lina, for Appellant. Janice McKenzie Cole, United States Attorney,
John S. Bowler, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lenwood Webster Davis ("Davis")* was convicted of possession
of cocaine base with intent to distribute and conspiracy to possess
cocaine base with intent to distribute in violation of 21 U.S.C.A.
§§ 841(a)(1), 846(b)(1)(B) (West 1981 & Supp. 1995). Davis noted
a timely appeal. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), noting that Davis contends that his
trial counsel was ineffective because he failed to file certain discovery
motions and because he failed to properly advise Davis about his
rights not to take the witness stand. Counsel states, however, that in
his view there exist no nonfrivolous grounds for appeal. Davis filed
a supplemental brief raising several claims.

Davis, Victor Pinilla ("Pinilla"), and Stenicsha Evans ("Evans")
were approached by detectives of the Jacksonville, North Carolina,
Police Department. When asked, Davis consented to a search of his
person. The detectives found several hundred dollars in currency, a
set of keys, and a motel room key with the number"246" on it. The
items were laid out on the trunk of a car. The detectives observed
Pinilla surreptitiously place his hand over the motel key and place it
in his pocket. Pinilla was unaware that he was being watched when
he took the key. The detectives then departed.

After a quick investigation, the detectives determined that the
motel key was for a room at the Day's Inn. The room was registered
to Evans. The detectives set up a surveillance outside the room.
Shortly thereafter, Davis walked up the back stairway of the motel
heading in the direction of Room 246. Davis spotted the detectives
and asked them if something had happened. Davis then said that he
_________________________________________________________________
*Davis also used the alias Tony Miller. He was indicted under his
alias.

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was looking for his girlfriend in room 122. When the detectives told
Davis that there was no room 122, Davis changed his story and said
he was looking for a soda machine.

While this was occurring, one of the detectives spotted Pinilla's car
in the motel parking lot. The detective ran down to the lot and found
Pinilla and Evans in the car. The detective asked them to come up to
the room. The detectives confirmed with Evans that she had rented
the room. They then asked Evans if they could search the room. She
consented. The detectives found a portable radio in the room. Upon
close observation they could see currency inside the radio. They
broke open the radio and found 244 grams of crack cocaine.

Davis and Pinilla were tried together. The prosecution presented
testimony from several witnesses. The detectives testified about the
events leading up to the arrest of the Defendants. Evans also testified
for the prosecution. Evans said that Davis had approached her in Flor-
ida and had asked her to drive him to North Carolina. When they
arrived in Jacksonville, Davis immediately began to look for Pinilla
and had him paged. Davis then gave Evans some money and told her
to rent the motel room. Two convicted drug dealers and a crack
cocaine addict from the Jacksonville area also testified for the prose-
cution; they implicated Davis and Pinilla in various drug deals.

Davis testified in his own defense. He denied any knowledge of the
physical evidence and in various respects implicated his Co-
Defendant Pinilla. Not to be outdone, Pinilla decided to plead guilty
and testify against Davis. The government offered Pinilla's testimony
in rebuttal to Davis's testimony. Davis did not object. Pinilla testified
that Davis had brought the crack from Miami in the radio to sell to
Pinilla. Both sides rested after Pinilla's testimony. Davis did not
object during jury instructions. The jury convicted Davis of one count
of possession of cocaine base with intent to distribute, and one count
of conspiracy to possess cocaine base with intent to distribute.

Davis's first claim in his supplemental brief is that the district court
erred in denying his motion for judgment of acquittal. Denials of
motions for acquittal are reviewed under a sufficiency of the evidence
standard. United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.),
cert. denied, 112 S. Ct. 3051. This court reviews sufficiency of the

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evidence deferentially, viewing the evidence in the light most favor-
able to the government and inquiring whether a rational trier of fact
could have found the defendant guilty beyond a reasonable doubt.
Glasser v. United States, 315 U.S. 60, 80 (1942); see Jackson v.
Virginia, 443 U.S. 307, 319 (1979).

When construed in the light most favorable to the Government, the
testimony from the Jacksonville Police detectives, Evans, and the two
Jacksonville crack dealers provided sufficient evidence to convince a
rational trier of fact that Davis was guilty beyond a reasonable doubt.
Glasser, 315 U.S. at 80. Accordingly, Davis was not entitled to a
judgment of acquittal.

Davis also claims that the admission of Pinilla's testimony was
unduly prejudicial under Fed. R. Evid. 403, because Pinilla was his
Co-Defendant. The admission of evidence is committed to the discre-
tion of the trial court and is not overturned on appeal absent irrational-
ity or arbitrariness. United States v. Bailey , 990 F.2d 119, 122 (4th
Cir. 1993); see also United States v. Russell , 971 F.2d 1098, 1104
(4th Cir. 1992) (district court's evidentiary rulings entitled to substan-
tial deference on appeal), cert. denied, 113 S. Ct. 3051.

Davis's argument is without merit because the record clearly shows
that the trial court properly admitted Pinilla's testimony as rebuttal to
Davis's testimony. The testimony was not unduly prejudicial and its
probative value outweighed any prejudice suffered by its admission.
United States v. Mark, 943 F.2d 444, 449 (4th Cir. 1991). Moreover,
any undue prejudice suffered by the admission of the evidence was
obviated by the court's limiting instruction on the proper use of the
evidence given prior to Pinilla's testimony. Id.

Davis also contends the trial court should have directed a mistrial
on its own motion. Review of the trial judge's failure to direct a mis-
trial on its own motion is limited to review for plain error. The plain
error rule, Federal Rules of Criminal Procedure 52(b), must be
applied cautiously and should be invoked only in the exceptional case
where, after reviewing the entire record, it appears that an error that
seriously affects the fundamental fairness of the trial process has been
committed. See United States v. Mitchell, 1 F.3d 235, 239-40 (4th Cir.

                     4
1993). Based on a review of the entire proceeding, we find that this
case is not one in which such a fundamental error occurred.

Davis further contends in his supplemental brief that the trial court
erred in instructing the jury. Davis did not object to the jury instruc-
tions nor did he propose alternative instructions. The issue of alleg-
edly erroneous jury instructions may not be raised on appeal when the
defendant did not object or propose an alternative instruction at trial,
United States v. Bryant, 612 F.2d 799, 803 (4th Cir. 1979), cert.
denied, 446 U.S. 919 (1980), unless the judge's failure to properly
instruct was clear error, United States v. Venneri, 736 F.2d 995, 996
(4th Cir.), cert. denied, 469 U.S. 1035 (1984). Our review of the
record reveals that the trial court's jury instructions were adequate
and did not amount to clear error.

Finally, Davis in his supplemental brief and his appellate counsel
in his Anders brief, raise claims of ineffective assistance. Such claims,
however, should be raised by motion under 28 U.S.C.§ 2255 (1988),
in the district court and not on direct appeal unless it "conclusively
appears" from the record that defense counsel did not provide effec-
tive representation. See United States v. DeFusco, 949 F.2d 114, 120-
21 (4th Cir. 1991), cert. denied, 503 U.S. 997 (1992). Davis's claims
of ineffective assistance are largely based on his contentions that
counsel failed to object to the alleged substantive errors previously
discussed. As those claims are without merit, the record does not con-
clusively establish counsel's ineffective assistance.

We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
The court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court at that time for leave to withdraw from representa-
tion. Counsel's motion must state that a copy thereof was served on
the client. We affirm the district court's judgment order. We dispense
with oral argument because the facts and legal contentions are

                     5
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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