                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5265



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KENNETH LEROY KITTRELL,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00261-H)


Submitted:   February 13, 2008            Decided:   March 17, 2008


Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David W. Long, POYNER & SPRUILL LLP, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Following a jury trial, Kenneth Leroy Kittrell was found

guilty of one count of bank robbery, in violation of 18 U.S.C.

§   2113(a)     (2000).       Kittrell    was     sentenced   to   216    months’

imprisonment, and ordered to pay $2520 in restitution and a $5000

fine.    On appeal, Kittrell asserts the admission of a photograph

violated Fed. R. Evid. 404(b) and challenges the sufficiency of the

Government’s evidence. We have reviewed the record and, finding no

error, we affirm.

           Taken in the light most favorable to the Government,

Evans v. United States, 504 U.S. 255, 257 (1992), the evidence

presented at trial established the following facts.                On July 20,

2004, a robber entered a Wachovia Bank branch in Raleigh, North

Carolina, and handed teller Lisa Roycroft a deposit slip, on the

back of which was written, “This is a stick up.               Put all the 100's

and 20's on the top.”          According to Roycroft, the robber was an

older black man, with gray hair, a receding hairline, and facial

hair.    Roycroft also noted the robber appeared unclean and was

wearing a dirty white T-shirt.                At trial, Roycroft identified

Kittrell as the robber.

              In responding to the crime scene, the police secured the

demand   note     and     dusted   it   for     fingerprints.      Five   latent

fingerprints of value were found on the two-sided demand note.

Latent footwear impressions found near Roycroft’s teller station


                                        - 2 -
were photographed and documented.    Submission of the fingerprints

to North Carolina’s automated fingerprint identification system

yielded twelve potential matches. Because one of these matches was

“very consistent” with the recovered print, the print examiner

retrieved the corresponding fingerprint card, which belonged to

Kittrell.    The examiner concluded the recovered print was that of

the middle finger on Kittrell’s right hand.         Further analysis

revealed that three of the five latent fingerprints of value left

on the demand note matched Kittrell.

            Having identified a possible suspect, Detective Timothy

Fanney of the Raleigh Police Department examined Kittrell’s police

record.     Fanney compared a photograph of Kittrell the department

had on file, which was taken in April 2004 — approximately three

months before the robbery — with still photographs from the bank’s

video     surveillance.     Fanney   immediately   noticed   physical

similarities between the April 2004 photo of Kittrell and the

surveillance photos.      Fanney sought and obtained a warrant for

Kittrell’s arrest.

            The warrant was executed and Kittrell detained at a local

Motel Six.    Upon seeing Kittrell, Fanney observed that Kittrell’s

appearance was different from that of his April 2004 photograph.

Fanney obtained consent from Angela Lane, the motel manager, to

search the motel’s dumpster.    In the dumpster, Fanney found a pair

of sneakers, a white T-shirt, and a pair of gray sweat pants.


                                - 3 -
Fanney recognized this clothing from the surveillance video as that

which the robber wore. In comparing the latent footwear impression

discovered on the floor in front of Roycroft’s teller station to

the sneakers, the print examiner concluded the impression was made

by the recovered right sneaker.

            Angela Lane testified that she spoke to Kittrell on July

20, the day of the robbery.    Lane described Kittrell as an older

black man, with a receding hairline, a beard, and a mustache.   Lane

stated that though Kittrell appeared scruffy and dirty when she

spoke with him prior to the occurrence of the robbery, Kittrell had

shaved his beard and his head and was wearing clean clothes when

she saw him later that day.   Lane identified the white T-shirt and

sweat pants recovered from the dumpster as the clothes Kittrell

wore on July 20.

            DNA testing was ordered on the clothing seized from the

dumpster.    Kristin Meyer, a DNA analyst with the North Carolina

State Bureau of Investigation, concluded Kittrell could not be

eliminated as a contributor to the DNA found in almost all of the

samples taken from the clothing.    In addition to linking Kittrell

to the robbery via photographic, testimonial, and DNA evidence, the

Government also presented the testimony of a questioned documents

examiner who opined there was “strong evidence” that Kittrell wrote

the demand note.




                                - 4 -
              Prior to trial, the Government provided notice of its

intent   to    introduce    the   April    2004   photograph    of   Kittrell.

Kittrell opposed this, arguing the photograph should be precluded

pursuant to Fed. R. Evid. 404(b). Finding the photograph relevant,

reliable, and necessary for purposes of establishing Kittrell’s

identity, the district court denied Kittrell’s motion.

              At the close of the Government’s evidence, Kittrell moved

the court for a judgment of acquittal, which the district court

denied. The jury found Kittrell guilty of the charged offense, and

Kittrell was sentenced to 216 months’ imprisonment.               This appeal

followed.

              Kittrell raises two issues on appeal.           First, Kittrell

maintains the district court violated Fed. R. Evid. 404(b) in

admitting the photograph of Kittrell taken in April 2004.                  Next,

Kittrell maintains the Government’s evidence of his guilt was

legally insufficient to support the conviction.               We address each

contention in turn.



I.   Admission of April 2004 Photograph

              In this first assignment of error, Kittrell asserts the

admission of the April 2004 photograph violated Fed. R. Evid.

404(b)   because    the    photograph     was   taken   in   conjunction   with

Kittrell’s prior arrest.       According to Kittrell, admission of this




                                    - 5 -
photograph, “constituted an improper comment on Kittrell’s earlier

involvement with the police.”

          This court reviews the admission of evidence for an abuse

of discretion.   United States v. Midgett, 488 F.3d 288, 297 (4th

Cir. 2007).   Evidentiary rulings are also subject to review for

harmless error under Federal Rule of Criminal Procedure 52, and

will be found harmless if the reviewing court can conclude “without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.” United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (internal quotations and

citation omitted).

          Rule 404(b) of the Federal Rules of Evidence prohibits

the admission of evidence of “other crimes” solely to prove a

defendant’s bad character, but such evidence may be admissible for

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

preparation, plan, knowledge, identity, or absence of mistake or

accident.’” United States v. Hodge, 354 F.3d 305, 311-12 (4th Cir.

2004) (quoting Fed. R. Evid. 404(b)).   Rule 404(b) is considered a

rule of inclusion; thus, evidence of prior acts is admissible under

Rules 404(b) and 403 if the evidence is:   (1) relevant to an issue

other than the general character of the defendant, (2) necessary,

(3) reliable, and (4) if the probative value of the evidence is not

substantially outweighed by its prejudicial value.   United States




                                - 6 -
v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002); United States v.

Queen, 132 F.3d 991, 997 (4th Cir. 1997).

           The district court did not abuse its discretion in

admitting the April 2004 photograph.        The photograph was relevant

to the issue of identity, not Kittrell’s general character, and

necessary to the Government’s case.        Moreover, the photograph was

reliable   and   its   probative   value   was   not   outweighed   by   the

prejudicial effect.*    United States v. Hill, 322 F.3d 301, 309 (4th

Cir. 2003).



II.   Sufficiency of the Evidence

           Kittrell next asserts the jury’s guilty verdict was not

supported by legally sufficient evidence.              In support of this

argument, Kittrell emphasizes several purported deficiencies in the

Government’s evidence, namely, Roycroft’s in-court identification,

the lack of any other eyewitness testimony identifying Kittrell as

the robber, and the “inconclusive” nature of the DNA evidence.

           This court reviews the district court’s decision to deny

a Rule 29 motion de novo.      United States v. Smith, 451 F.3d 209,



      *
      Even if the district court did abuse its discretion in
admitting the April 2004 photograph, the error was harmless. The
evidence against Kittrell was significant. As this was not a close
case factually, we conclude with fair assurance that any error
regarding the admission of this photograph taken in the course of
Kittrell’s prior arrest did not affect the verdict. See Weaver,
282 F.3d at 313-14; United States v. Heater, 63 F.3d 311, 325 (4th
Cir. 1995).

                                   - 7 -
216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006).           This court

reviews sufficiency of the evidence challenges by determining

whether, viewing the evidence in the light most favorable to the

Government, any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. Glasser v. United

States, 315 U.S. 60, 80 (1942); United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982).         The court reviews both direct and

circumstantial evidence, and permits the “[G]overnment the benefit

of all reasonable inferences from the facts proven to those sought

to be established.”        Tresvant, 677 F.2d at 1021.

             In evaluating the sufficiency of the evidence, this court

does not “weigh the evidence or review the credibility of the

witnesses.”     United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997).       Where   the     evidence   supports   differing   reasonable

interpretations, the jury decides which interpretation to credit.

Id. (quotations omitted).          This court will uphold the jury’s

verdict if there is substantial evidence to support it, and will

reverse only in those rare cases “where the prosecution’s failure

is clear.”    United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997) (internal quotations omitted).

             We reject Kittrell’s challenge to the sufficiency of the

evidence.    Roycroft’s identification of Kittrell as the robber was

sufficient, and the jury was well within its province to credit her




                                    - 8 -
testimony.     Moreover, the Government was under no obligation to

present any other eyewitness testimony.

           Kittrell   strenuously   maintains    the   Government’s   DNA

evidence was insufficient.    Kittrell is correct in stating the DNA

did not link Kittrell to the clothing found in the motel dumpster

to the exclusion of all others.     However, the DNA found on two of

the cuttings taken from the recovered clothing contained a mixture

of no more than two contributors, and Kittrell could not be

excluded as a contributor to that mixture.       Further, the DNA found

on six of the cuttings contained a mixture of three or four

contributors, and Kittrell similarly could not be excluded as a

contributor from those mixtures.    Contrary to Kittrell’s position,

the inconclusive nature of the DNA evidence obtained from the

recovered right sneaker is not fatal to the Government’s case.

           The Government’s evidence of Kittrell’s guilt was ample.

In addition to the DNA evidence linking Kittrell to the recovered

clothing and Roycroft’s in-court identification, the Government’s

expert handwriting analyst testified the demand note was “probably”

written   by   Kittrell.     Moreover,   three   of    the   five   latent

fingerprints recovered from the demand note were identified as

Kittrell’s.    Examination of the right sneaker recovered from the

motel’s dumpster revealed that particular sneaker left the latent

footwear impression lifted from Roycroft’s teller station.            This

shoe was found with clothing containing a mixture of DNA, of which


                                 - 9 -
Kittrell could not be excluded as one of the no more than four

contributors.     This evidence, although circumstantial, was more

than enough to support the jury’s guilty verdict, “even though it

[did] not exclude every reasonable hypothesis consistent with

innocence.”    United States v. Osborne, __ F.3d __, 2008 WL 222739,

*7 (4th Cir. Jan. 29, 2008) (internal quotation marks and citation

omitted).

            Accordingly, we affirm the district court’s judgment.

Further, we deny Kittrell’s motion for leave to file a pro se

supplemental    brief   challenging   the   constitutionality   of   his

sentence.     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




                                - 10 -
