                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                    No. 97-1963
                                   _____________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Ward Lewis Tomberlin,                    *
                                         *
             Appellant.                  *
                                   _____________

                                 Submitted: November 17, 1997
                                     Filed: December 12, 1997
                                  _____________

Before BOWMAN, LAY, and MURPHY, Circuit Judges.
                         _____________

BOWMAN, Circuit Judge.




       Ward Lewis Tomberlin appeals his drug conviction, arguing that the District
Court1 erred by admitting evidence of his prior arrests. We find no error and therefore
affirm the conviction.




      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
                                            I.
       Pursuant to a valid warrant, police officers searched the home of David Hogan.
Tomberlin, the appellant in this case, was staying at Hogan's house and was present
during the search. Officers searched the first floor bedroom, which Tomberlin
occupied, and found a number of items associated with the use and distribution of
drugs. These items included marijuana, seventy-three grams of methamphetamine,
inositol (a cutting agent), playing cards (used to cut the methamphetamine), plastic
baggies, a Tanita electronic scale, and a blue Texas Instruments calculator.

       Federal prosecutors charged Tomberlin with possession with intent to distribute
methamphetamine in violation of § 21 U.S.C. 841(a)(1) (1994). For this offense, the
government had to establish that Tomberlin was in possession of the methamphetamine,
Tomberlin knew he was in possession of the methamphetamine, and Tomberlin
intended to distribute some or all of the methamphetamine. Further, because the
government's theory of the case was that Tomberlin constructively possessed the drug
items in question, to establish the element of possession the government was required
to prove that Tomberlin intended to exercise dominion over the methamphetamine,
Tomberlin had the power to exercise dominion over the methamphetamine, and
Tomberlin knew he had the power to exercise dominion over the methamphetamine.
See United States v. Thomas, 58 F.3d 1318, 1322-23 (8th Cir. 1995) (citing United
States v. Henneberry, 719 F.2d 941, 945 (8th Cir. 1983), cert. denied, 465 U.S. 1107
(1984)).

       The key issue at trial was whether Tomberlin knew that the drugs recovered from
his room were there, or whether, as the defense contended, they had been placed there
without his knowledge. The government introduced evidence of Tomberlin’s prior
arrests, all of which had resulted in convictions, under Federal Rule of Evidence 404(b)
to show both his knowledge of possession and his intent to possess the drugs. The
government's evidence included: 1) a 1989 conviction where Tomberlin attempted to


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flush narcotics down the toilet; 2) a 1993 conviction where Tomberlin fled from a car
containing marijuana; 3) a 1993 conviction where Tomberlin attempted to dispose of
crack cocaine from his pocket just before being apprehended; 4) a 1994 conviction
where Tomberlin escaped out of a back window, leaving behind plastic bags of drugs;
5) a 1996 conviction where Tomberlin fled from a car wherein officers found a bank
bag containing plastic bags, playing cards matching those found during the search of
Tomberlin's bedroom, a blue Texas Instruments calculator, and a Tanita electronic
scale.

                                          II.

      The issue before this Court is whether the District Court erred in allowing the
evidence of Tomberlin's prior arrests to be introduced under Federal Rule of Evidence
404(b). We review a district court's decision to admit evidence of a defendant's prior
bad acts under an abuse-of-discretion standard. See United States v. Edwards, 91 F.3d
1101, 1103 (8th Cir. 1996). Federal Rule of Evidence 404(b) permits a court to admit
evidence of prior bad acts unless it tends to prove only a defendant’s criminal
disposition. Thus, evidence can be admitted under Rule 404(b) when a defendant
places “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident” at issue. Fed. R. Evid. 404(b). A defendant denies both
knowledge and intent when he asserts the “mere presence” defense--that he was
present, but did not know of the presence of illegal drugs.

      Tomberlin argues that the District Court abused its discretion in admitting
evidence of his prior bad acts because knowledge and intent were not issues at trial. He
contends his case is like United States v. Jenkins, 7 F.3d 803 (8th Cir. 1993). We
disagree.

      In Jenkins, police obtained information from two sources that Paul Jenkins had
sold LSD. At first, Jenkins admitted to the sales and agreed to be an informant in

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exchange for leniency. But when Jenkins failed to cooperate, federal officials charged
him with two counts of distribution of a controlled substance.

       Jenkins took the stand and denied any involvement in the drug sales. Because
he unequivocally denied participation in the drug transactions, this Court ruled that
intent was not an issue. See id. at 807. Instead, whether the transactions occurred at
all was the issue. As a result, this Court held that evidence of Jenkins's prior bad acts
was not admissible under Rule 404(b). See id.

       We believe the facts of Tomberlin's case are closer to those in Thomas, 58 F.3d
1318, wherein we clarified Jenkins. In Thomas, police were attempting to execute an
arrest warrant for Ronald Thomas. Police went to an apartment where they found
Thomas. In the apartment, police seized crack cocaine and other drug-related items.
Thomas was charged with violating 21 U.S.C. § 841(a)(1) by possessing crack cocaine
with intent to distribute. At trial, Thomas maintained that the apartment was not his
and that he had no knowledge of the presence of crack in the apartment. He asserted
the “mere presence” defense, claiming to have been in the wrong place at the wrong
time.

      This Court held that when Thomas denied knowledge that the cocaine was
present in the apartment, he directly challenged an element of § 841(a)(1): that he
“knew he was in possession” of cocaine. See id. at 1323. Also, Thomas’s defense
indirectly challenged the first element of constructive possession, that he “intended to
exercise dominion” over the cocaine, and element three of § 841(a)(1), that he
“intended to distribute some or all” of the cocaine. See id. Thus, Thomas’s “mere
presence” defense raised issues of knowledge and intent. Evidence of his prior bad
acts was admissible under Rule 404(b).

      Like Thomas, Tomberlin asserted a “mere presence” defense, which challenged
both his knowledge and intent. Tomberlin admits his presence, i.e., that he occupied

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the bedroom, but claims he had no knowledge the methamphetamine and related drug
items were there. This is fundamentally the same defense Thomas put forward.
Moreover, like Thomas, Tomberlin was charged with possession of drugs with intent
to distribute. This requires proof of intent to possess and proof of knowledge of
possession, both of which Tomberlin disputed. Furthermore, because this is a
constructive possession case, indicia of knowledge is crucial.

       This situation differs from that in Jenkins. Jenkins was charged with actual
distribution but denied any involvement whatsoever in distributing the drugs. Jenkins
did not assert his mere presence; he simply claimed he had nothing to do with any
crime. Jenkins therefore never placed intent or knowledge at issue. In our case,
Tomberlin only denies actually having put the drugs in the bedroom. But this is not
denying any involvement whatsoever in the crime because the crime is not putting the
drugs in the room. Rather, the crime is possessing and intending to distribute the drugs.
Just as in Thomas, when Tomberlin claimed he did not know that the inculpatory items
were present in his room, he was asserting the mere presence defense. In doing so, he
directly challenged the elements of knowledge and intent, which the government was
required to prove.

       Because Tomberlin asserted a mere presence defense, the challenged evidence
was admissible under Rule 404(b) to show knowledge and intent. In addition, there
was sufficient evidence to support a finding that Tomberlin had committed the prior bad
acts, see United States v. Drew, 894 F.2d 965, 971 (8th Cir.), cert. denied, 494 U.S.
1089 (1990), and the prior bad acts are similar in kind and not remote in time from the
crime charged, see id. at 969-70, thus satisfying the definition of "relevant evidence."
See Fed. R. Evid. 401. Finally, the balancing test of Federal Rule of Evidence 403 is
also satisfied, inasmuch as we are unable to say that the probative value of this
evidence was substantially outweighed by the danger of unfair prejudice. See Drew,
894 F.2d at 971. In sum, we hold that the District Court did not abuse its discretion in
admitting the evidence of Tomberlin's prior bad acts.

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The judgment of the District Court is affirmed.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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