                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4605


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

RONALD EARL RICE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District   of  North   Carolina,  at  Charlotte.     Robert J.
Conrad, Jr., Chief District Judge. (3:07-cr-00145-RJC-1)


Submitted:    October 7, 2009                 Decided:   October 15, 2009


Before GREGORY, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Ross Hall Richardson, Peter Adolf, Federal Public
Defenders, Charlotte, North Carolina, for Appellant.     Gretchen
C. F. Shappert, United States Attorney, Adam Morris, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ronald Earl Rice appeals his conviction for possession

of child pornography, in violation of 18 U.S.C. § 2252 (2006).

Before trial, Rice filed a motion to suppress evidence, seeking

to exclude, among other things, the testimony of Rice’s nephew,

detailing    repeated      instances       in    which    Rice    had     molested    his

nephew, shown him child pornography, and taken sexually explicit

photographs of him.          Though the district court excluded other

evidence    of    Rice’s     prior    bad       acts,    the     judge    allowed     the

nephew’s testimony.          Rice was convicted after a jury trial and

sentenced    to    240   months’     imprisonment.          Rice      filed   a   timely

appeal.

            On     appeal,    Rice       challenges       the     district        court’s

admission    of    the   nephew’s     testimony.          Rice    asserts     that    the

probative value of the evidence was greatly outweighed by its

prejudicial      nature,    and   that     the    evidence       of   prior   bad    acts

improperly shifted the jury’s focus from the facts of the case

“to a more general referendum on Mr. Rice’s character.”                                We

affirm.

            We review the evidentiary rulings of a district court

for abuse of discretion.           United States v. Kelly, 510 F.3d 433,

436 (4th Cir. 2007).         Rule 414 of the Federal Rules of Evidence

allows     for    the    admission    of    evidence       of     other    molestation

offenses committed by the defendant.                    Fed. R. Evid. 414.           Rule

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414 provides “an exception to the general rule that evidence of

past crimes may not be used ‘to prove the character of a person

in order to show action in conformity therewith.’”                    Kelly, 510

F.3d at 436-37 (quoting Fed. R. Evid. 404(b)).                     However, like

all other evidence, that admitted under Rule 414 is subject to

the balancing test of Fed. R. Evid. 403, requiring that the

evidence “‘be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice’ to the defendant.”

Id.   at   437   (quoting     Rule   403).        When   applying    Rule   403’s

balancing    test,      a    district   court      should    consider     several

factors, such as:

      (i) the similarity between the previous offense and
      the charged crime, (ii) the temporal proximity between
      the two crimes, (iii) the frequency of the prior acts,
      (iv) the presence or absence of any intervening acts,
      and (v) the reliability of the evidence of the past
      offense.

Id.   When reviewing the district court’s balancing of these and

other factors, we defer to the district court’s determination

“unless     it   is     an    arbitrary      or    irrational       exercise   of

discretion.”     Id.

            Here,      the   district     court    engaged    in     a   thorough

examination of the nephew’s proposed testimony regarding Rice’s

past offenses.        First, as the district court determined, though

the molestation activity occurred between ten and eighteen years

ago, this was a shorter time period than that present in our


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recent decision in Kelly, where this court allowed the admission

of a rape occurring twenty-two years prior to the offense in

question.   See 510 F.3d at 437.

            Second, though there were some differences between the

previous molestation activity and the current charges of child

pornography, the district court noted that the prior offenses

included showing the nephew child pornography, as well as taking

pictures of the nephew’s genitalia.         These similarities, as well

as the repeated assaults over a lengthy period of time, were

indicative of the highly probative nature of the testimony on

the issue of Rice’s intent and proclivity toward molestation and

child pornography.     Finally, that the nephew testified in court

and was subject to cross examination establishes the reliable

nature of the evidence of past offenses.

            When viewing these factors together, it is clear that

while the nephew’s testimony of Rice’s past sexual abuse was

certainly prejudicial to Rice’s defense, it was not unfairly

prejudicial.    Instead, “it was prejudicial for the same reason

it is probative-” it tends to prove that Rice has a deviant

sexual attraction towards children.         See Kelly, 510 F.3d at 438.

Therefore, as the record clearly demonstrates that the admission

of this evidence was not an arbitary or irrational exercise of

discretion,    we   find   the   district   court   did   not   abuse   its

discretion in denying Rice’s motion to suppress this evidence.

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            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   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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