UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4176

ANTHONY LEWIS GLENN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-98-23)

Submitted: November 9, 1999

Decided: November 30, 1999

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dean R. Davis, Wilmington, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Jane J. Jackson, 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Unpublished opinions are not binding precedent in this circuit.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:

Anthony Lewis Glenn was convicted of being a felon in possession
of a firearm, in violation of 18 U.S.C.A. § 922(g) (West Supp. 1999);
possessing crack cocaine with the intent to distribute, in violation of
21 U.S.C. § 841(a)(1) (1994); and carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C.A.
§ 924(c) (West Supp. 1999). He appeals these convictions, claiming
that the district court committed reversible error in denying him per-
mission to show his gunshot wounds to the jury and in instructing the
jury improperly. We affirm.

Relevant evidence is defined as that having any tendency to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without
the evidence. See Fed. R. Evid. 401. Even relevant evidence may be
excluded, however, where its probative value is substantially out-
weighed by considerations of the needless presentation of cumulative
evidence. See Fed. R. Evid. 403. We review a district court's exclu-
sion of evidence for abuse of discretion. See United States v. Grooms,
2 F.3d 85, 88 (4th Cir. 1993).

Glenn contends that the district court erred in refusing to allow him
to display the gunshot wounds in his arms to the jury. However, this
evidence was already before the jury. Dr. Christopher Shaut testified
that Glenn received life-threatening injuries and would have died
without medical intervention. Dr. Shaut stood and demonstrated to the
jury where Glenn's injuries were, including Glenn's injuries to the
elbow area and the upper forearm area. Therefore, the district court
did not abuse its discretion in excluding this evidence.

Glenn next contends that the jury instructions were deficient in sev-
eral different respects. The district court has broad discretion in deter-
mining the wording of the jury charge. See United States v. Piche,
981 F.2d 706, 712 (4th Cir. 1992). There is no abuse as long as the
instructions given by the court are adequate and accurate. See United
States v. Pupo, 841 F.2d 1235, 1240 (4th Cir. 1988). In addition, the
refusal of a district court to use language requested by a party is not

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error if the instruction as given is accurate and sufficient. See United
States v. Horton, 847 F.2d 313, 322 (6th Cir. 1988). Rather a district
court's refusal to deliver a requested instruction is reversible only if
that instruction is (1) a correct statement of the law, (2) not substan-
tially covered by the charge actually given to the jury, and (3) con-
cerns a point so important in the trial that the failure to give it
substantially impairs the defendant's defense. See United States v.
Lewis, 53 F.3d 29, 32-33 (4th Cir. 1995).

Glenn claims that the court failed to charge the jury as requested
that, even though Glenn presented evidence, the burden of proof
remained with the Government and the presumption of innocence was
unchanged. We find that the court's instructions substantially covered
Glenn's requested charge.

Glenn next contends that the district court erred by failing to
instruct the jury that it could draw adverse inferences from the Gov-
ernment's failure to conduct fingerprint examinations of the pistol, the
bullets, and the plastic bag which contained crack cocaine; its failure
to test the pistol for blood; and its failure to obtain and test wipings
from Glenn's hands. However, the failure to give this instruction did
not hamper Glenn's defense, as he was free to argue this theory to the
jury, and he, in fact, elicited testimony from the Government's wit-
nesses on cross-examination that the tests had not been done. The dis-
trict court did not abuse its discretion in rejecting Glenn's proposed
instruction.

Next, Glenn contends that the trial court should have instructed the
jury that it could draw adverse inferences from the fact that Chief
Leonard of the Louisburg, North Carolina Police Department
instructed his officers not to speak to Glenn's attorney about the case.
Again, this evidence was already before the jury, and Glenn was free
to argue inferences from this fact. Moreover, Glenn does not produce
any good faith basis to believe that debriefing these witnesses would
have aided his defense. Glenn's attorney had access to all witness
statements, and the witnesses were cross-examined at trial. Thus,
Glenn fails to show how his defense was impaired by the failure to
give this instruction.

Finally, Glenn contends that the court erred in charging the jury on
the law of constructive possession when there was only evidence of

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actual possession. However, even if there was absolutely no evidence
of constructive possession, any error was harmless. The Supreme
Court has held that, where a jury is charged that a defendant may be
found guilty on a factual theory that is not supported by the evidence
and is also charged on a factual theory that is supported by the evi-
dence, and the only claimed error is the lack of evidence to support
the first theory, the evidence is harmless as a matter of law. See
Griffin v. United States, 502 U.S. 46, 56 (1991); United States v.
Mari, 47 F.3d 782, 785-86 (6th Cir. 1995) (discussing Griffin).

It is undisputed that there was ample, eyewitness evidence that
Glenn actually possessed the pistol. This evidence was sufficient for
a reasonable juror to find Glenn guilty of being a felon in possession
of a firearm. Because a jury could easily conclude that Glenn pos-
sessed the firearm under the unchallenged actual possession charge,
we find that the charge of constructive possession, even if unsup-
ported by the evidence, was harmless error.

For the reasons set forth above, we affirm the judgment of the dis-
trict 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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