UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4296

MILTON C. ROBINSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-98-49-BO)

Submitted: December 29, 1999

Decided: February 9, 2000

Before MURNAGHAN, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William L. Davis, III, Lumberton, North Carolina, for Appellant.
Janice McKenzie Cole, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Jennifer May-Parker, 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Unpublished opinions are not binding precedent in this circuit.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:

A jury convicted Milton C. Robinson of habitual driving while
impaired, transporting an open container of alcoholic beverage after
having consumed alcohol, and speeding. These offenses, while crimes
under North Carolina state statutes, were prosecuted federally because
they were committed on property of Fort Bragg, North Carolina, and
were within the territorial jurisdiction of the United States and subject
to its jurisdiction under the Assimilated Crimes Act, 18 U.S.C.A. § 13
(West Supp. 1999), and 32 C.F.R. § 210 (1999). Robinson appeals his
convictions and sentence, alleging insufficiency of evidence and
improper evidentiary rulings by the district court. Finding no error,
we affirm.

Robinson alleges the district court erred by admitting into evidence
Government's Exhibit #1 to establish three prior convictions of
impaired driving because the exhibit, a state court Judgment and
Commitment, post-dated the offense of conviction (October 1, 1997).
We find the district court did not abuse its discretion by permitting
admission of the exhibit because the prior convictions the Govern-
ment sought to establish, proof of which was contained in the October
28, 1997 document, occurred in September 1994, September 1995,
and December 1995, well in advance of the offense of conviction. See
United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995).

Robinson further argues the district court erred in admitting this
exhibit because it contained evidence of prior bad acts. Because Rob-
inson failed to object at trial on this ground and preserve this issue for
appeal, our review is for plain error. See United States v. Castner, 50
F.3d 1267, 1277 (4th Cir. 1995). Rule 404(b) of the Federal Rules of
Evidence provides that evidence of other crimes, wrongs, or acts is
admissible to prove "motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." These excep-
tions to the inadmissibility of prior bad acts evidence are broadly con-
strued, effectuating the principle that "evidence of prior bad acts is
admissible unless it is introduced for the sole purpose of proving
criminal disposition." United States v. Russell, 971 F.2d 1098, 1106
(4th Cir. 1992).

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The bad acts involving prior driving impaired offenses that were
contained in the exhibit were not introduced pursuant to any of the
exceptions to Rule 404(b). Instead, they were introduced to establish
that Robinson, by pleading guilty to such acts, confirmed the three
prior convictions for driving impaired that occurred in September
1994, September 1995, and December 1995. Therefore, they were not
introduced under an exception to Rule 404(b) or to show criminal dis-
position, rather they were components of the underlying predicate
offenses necessary to prove the offense of conviction, which was
driving while impaired after having been convicted of three prior
driving impaired offenses.

As to the bad acts contained in the exhibit that were unrelated to
the habitual driving impaired charge, Robinson failed to object to the
introduction of those acts. Further, there was no request that the court
redact the document or provide a limiting instruction. Nevertheless,
because the acts involved prior felonies that were irrelevant to the
trial and potentially prejudicial, it was error to admit them. However,
because the acts were unrelated to the current offenses and were not
referred to by either party anywhere in the record submitted on
appeal, we find the error to be harmless.

Robinson also contends the evidence was insufficient to prove he
drove while impaired, had three prior driving impaired convictions,
and was driving with an open container in his vehicle while alcohol
remained in his body. When reviewing sufficiency of the evidence,
the trial verdict must be sustained if there is substantial evidence, tak-
ing the view most favorable to the Government, to support it. Glasser
v. United States, 315 U.S. 60, 80 (1942).

The evidence at trial established that Robinson was speeding and
had an odor of alcohol on his breath when pulled over by the officer.
Robinson was unable to follow field sobriety test instructions, indicat-
ing an impairment of his mental faculties. Further, his inability to exit
the vehicle and walk to the rear of it without steadying himself, his
lack of balance, and the need to lean on the vehicle for support dem-
onstrate his physical faculties were impaired. Robinson also failed the
walk and turn field sobriety test. Finally, the arresting officer testified
that he believed Robinson was impaired as a result of alcohol when
he stopped Robinson's vehicle. Accordingly, we find the evidence

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was sufficient for a rational trier of fact to find that Robinson drove
while impaired and that alcohol remained in his body.

The evidence that the officer removed a half-empty bottle of gin
with a broken seal from the passenger side of Robinson's truck was
likewise sufficient to establish that an open container of alcohol was
in the vehicle driven by Robinson.

Robinson next asserts that because the procedure outlined in State
v. Jernigan, 455 S.E.2d 163 (N.C. 1995), and N.C. Gen. Stat. § 15A-
928(c) (1997), which governs cases involving habitual impaired driv-
ing charges, was not followed by the district court. In Jernigan, the
Court of Appeals of North Carolina stated that the purpose of § 15A-
928 is "to insure that the defendant is informed of the previous con-
victions the state intends to use and is given a fair opportunity to
either admit or deny them or remain silent." Jernigan, 455 S.E.2d at
166. We find Robinson was informed, prior to trial, that the Govern-
ment intended to prove previous convictions of Robinson and that
Robinson, armed with this knowledge, informed the court that he
denied the previous convictions. See id. at 166. Accordingly, we find
the district court did not violate any of the safeguards outlined in the
North Carolina statute or case law governing a trial of habitual driv-
ing while impaired.

With regard to Robinson's claims that it was improper to allow the
officer to testify as to his opinion of whether Robinson was intoxi-
cated and improper to allow evidence of his refusal to submit to the
Intoxilyzer 5000 chemical analysis, we find the authorities cited by
Robinson do not support either of these allegations. Accordingly, we
find these claims meritless.

We therefore affirm Robinson's convictions and sentence. We dis-
pense 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

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