                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         October 16, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-1451
                                                 (D.C. No. 1:13-CR-00194-WJM-1)
DONTAE DANIEL HINES,                                         (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________

      Dontae Hines appeals following his convictions for being a felon in possession

of a firearm, possessing a firearm in furtherance of a drug trafficking offense, and

possessing cocaine base with intent to distribute. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

                                           I

      On April 18, 2013, the Denver Police Department’s Vice and Narcotics Bureau

executed a “buy-bust” operation near East Colfax Avenue. An undercover detective,

Joseph Portillo, purchased crack cocaine from Hines in an apartment building

entryway. Portillo signaled to other officers that the transaction was complete at

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
approximately 9:00 p.m. As uniformed officers entered the building, Hines fled

upstairs. Officer Richard Shurley pursued.

      Shurley testified that as he reached the top of the stairs, he had a clear view

down a fifty-foot, well-illuminated hallway. He observed Hines stop near the far end

of the hallway, remove a handgun from his waistband, and place it on a blue

container in front of apartment 202. Shurley continued to pursue Hines, who exited

the hallway through a door at the far end.

      Hines was apprehended by a group of officers, including Shurley and Portillo.

After Hines was taken into custody, Shurley stated that he needed to go back and

retrieve a gun. He found a Glock 30 .45 caliber handgun under a trash bag in the

blue container near apartment 202. The resident of apartment 202, Briana Overy,

told officers that the blue container and trash bag belonged to her, but the handgun

did not.

      At trial, the prosecution conducted a courtroom demonstration during the

testimony of Detective James Anderson, who was the case agent for Hines’ trial.

Anderson testified that the hallway where Shurley recovered the handgun was

approximately 52 feet long and measured the same distance in the courtroom. The

prosecutor then asked Anderson to step off the stand and testify from the measured

distance. Defense counsel objected that Anderson should testify from the stand, but

was overruled. Anderson identified a handgun held in the prosecutor’s right hand

from 52 feet away. Defense counsel immediately objected that the demonstration

had “no relevance” because Anderson was not the officer who claimed to have seen

                                             -- 2
the gun, and the lighting in the courtroom was not the same as the lighting in the

hallway. The court overruled the objection, stating that the points raised “go to the

weight of the evidence.”

      The jury convicted Hines on all three charges: possession of cocaine base with

intent to distribute, possession of a firearm by a felon, and possession of a firearm in

furtherance of a drug trafficking offense. He was sentenced to 72 months’

imprisonment. Hines timely appealed.

                                           II

      Hines contends the district court erred in permitting a courtroom

demonstration without a showing that conditions in the courtroom were substantially

similar to those in the hallway. We ordinarily review a district court decision to

permit an in-court demonstration for abuse of discretion. United States v. Wanoskia,

800 F.2d 235, 238 (10th Cir. 1986). The government argues that we should review

only for plain error because Hines did not object to the demonstration before it

occurred.1 “A timely objection, accompanied by a statement of the specific ground

of the objection, must be made when evidence is offered at trial to preserve the

question for appeal . . . .” United States v. Norman T., 129 F.3d 1099, 1106 (10th

Cir. 1997). Hines counters that defense counsel objected immediately after the

demonstration—which occurred without warning—when the district court could have

instructed the jury to disregard the display. See United States v. Banks, 761 F.3d

      1
        At oral argument, the government clarified that it seeks plain error review
with respect to only part of Hines’ argument. We consider preservation of Hines’
two sub-arguments below.
                                           -- 3
1163, 1186 (10th Cir. 2014) (“[A] litigant must lodge an objection to a purported

error while the district court still has an opportunity to fix it.”).

       In assessing the proper standard of review, we think it helpful to consider

Hines’ two sub-arguments separately. Hines argues that the district court abused its

discretion by failing to make a substantial similarity finding, and by permitting the

demonstration when conditions were not in fact substantially similar. With respect to

the latter argument, we assume that Hines’ objection was sufficient because we

conclude his claim fails under either potential standard of review. With respect to the

former sub-argument, however, we conclude that plain error review is appropriate

because Hines never objected to a lack of findings before the district court.

                                             A

       To prevail on plain error review, Hines must show: (1) an error, (2) that is

plain, (3) that affects his substantial rights, and (4) that seriously affects the fairness,

integrity, or public reputation of the judicial proceedings. United States v. Gonzalez-

Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). We question whether the

district court’s explanation was insufficient, much less plainly so. In response to

Hines’ objection, the court stated that any difference in conditions “go[es] to the

weight of the evidence.” “If there is substantial similarity, the differences between

the test and the actual occurrence ordinarily are regarded as affecting the weight of

the evidence rather than its admissibility.” Wanoskia, 800 F.2d at 238 (quotation

omitted). Accordingly, the court’s ruling could be read as an implicit finding that

conditions were substantially similar.

                                              -- 4
      In any event, Hines’ contention that the district court did not make the proper

findings fails the third step of the plain error analysis. To demonstrate that an error

affected his substantial rights, “the appellant must show a reasonable probability that,

but for the error claimed, the result of the proceeding would have been different.”

Gonzalez-Huerta, 403 F.3d at 733 (quotation omitted). As described infra, we

conclude that the conditions in the courtroom were sufficiently similar to the

conditions in the hallway such that the district court possessed discretion to permit

the demonstration. Accordingly, we hold there is not a reasonable probability that

further explanation would have affected the outcome of Hines’ trial.

                                           B

      Our court has recognized that in-court demonstrations “can be highly

persuasive” and thus “the court must take special care to ensure that the

demonstration fairly depicts the events at issue.” Wanoskia, 800 F.2d at 237-38. If

an in-court demonstration “purports to simulate actual events and to show the jury

what presumably occurred at the scene . . . , the party introducing the evidence has a

burden of demonstrating substantial similarity of conditions.” Jackson v. Fletcher,

647 F.2d 1020, 1027 (10th Cir. 1981). Conditions need “not be identical but they

ought to be sufficiently similar so as to provide a fair comparison.” Id.

      The courtroom conditions were undisputedly the same as those in the hallway

in two respects: the distance and the item being identified. And the conditions

obviously differed in one respect: the officer who participated in the demonstration

was not the officer who saw Hines drop the gun in the hallway. The parties thus

                                           -- 5
spend a great deal of their briefing disputing whether the lighting conditions were

similar. We think the government has the better argument on that issue.

      Shurley testified that the hallway was “well illuminated,” that the “lighting

[wa]s great” in front of apartment 202, and that he had a “perfect view” of Hines

dropping the handgun. Overy stated that the hallway was “pretty lit up” and that she

would have no trouble seeing a medium sized teddy bear from the far end of the hall.

The testimony was in conflict as to whether Exhibit O, a somewhat dark photograph

of the hallway included in the record on appeal, accurately depicted the lighting

conditions on the night of Hines’ arrest. Shurley testified that the hallway “was more

well lit than it is in th[e] photo.” Overy testified that Exhibit O was darker than the

actual hallway when the exhibit was displayed on a computer monitor at trial, but

stated that the actual photo accurately showed the lighting conditions. Anderson

(who was not present on the night of the arrest but viewed the hallway at a later date)

testified that Exhibit O appeared darker than the actual conditions “because, as you

can see in the picture, it’s very, very bright where the photo is actually being taken.”

However, Officer Ronald Helm testified that the lighting in Exhibit O is “probably a

little better” than when Hines was arrested.

      None of the witnesses directly compared the lighting in the courtroom to the

lighting in the hallway before the demonstration occurred.2 Nevertheless, viewing



      2
        Hines claims that Helm testified the courtroom was “better well lit” than the
hallway. But this claim is incorrect. Helm actually agreed with counsel that the
courtroom had better lighting than the “entryway.” This testimony concerned Helm’s
                                           -- 6
the record as a whole, we conclude that the district court did not abuse its discretion

in permitting the demonstration. As the foregoing paragraph indicates, the bulk of

the trial testimony indicated that the hallway in front of apartment 202 was well lit

notwithstanding some disagreement regarding Exhibit O. And although the witness

making the identification was not the witness who observed Hines, both the distance

and the item identified were the same in the demonstration and the actual occurrence.

“A district court abuses its discretion only if its ruling is arbitrary, capricious,

whimsical or manifestly unreasonable or when we are convinced that the district

court made a clear error of judgment or exceeded the bounds of permissible choice in

the circumstances.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011)

(quotation omitted). We conclude that permitting the demonstration was within the

district court’s discretion.

                                            III

       AFFIRMED.

                                              Entered for the Court



                                              Carlos F. Lucero
                                              Circuit Judge


ability to see from a distance what was happening when uniformed officers entered
the entryway where the crack cocaine transaction occurred prior to Hines fleeing.
        After the demonstration, Anderson testified that the area of the courtroom in
which the prosecutor was standing “is actually darker than in front of apartment No.
202 where Officer Shurley observed Mr. Hines.” Because this testimony occurred
after the demonstration, however, it could not have formed a basis for the district
court’s ruling.
                                             -- 7
