                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 22 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 00-5112
 LAWRENCE RINGER,                                (D.C. No. 99-CR-78-BU)
                                                       (N.D. Okla.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, BALDOCK, and BRORBY, Circuit Judges. **


      A jury convicted Defendant Lawrence Ringer of two counts of bank

robbery in violation of 18 U.S.C. § 2113(a), and one count of carrying a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c). The district court

sentenced Defendant to 120 months imprisonment on each of the bank robbery

counts to run concurrently, and 84 months imprisonment on the firearm count


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and appellate record, this panel has
determined that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
to run consecutively.

      Defendant appeals, challenging the district court’s decision to admit

testimony pursuant to Fed. R. Evid. 404(b) regarding Defendant’s access to a

weapon prior to the second bank robbery on May 21, 1999. Defendant argues that

in admitting the evidence, the district court failed to follow the procedural

safeguards set forth in Huddleston v. United States, 485 U.S. 681 (1988).

Specifically, Defendant argues the district court failed to determine pursuant

to Fed. R. Evid. 403 whether the danger of unfair prejudice to Defendant

outweighed the probative value of the evidence. We exercise jurisdiction under

28 U.S.C. § 1291. We review a decision to admit evidence under Fed. R. Evid.

404(b) for an abuse of discretion. United States v. Zamora, 222 F.3d 756, 762

(10th Cir. 2000). Applying this standard, we affirm.

                                          I.

      When interviewed by authorities, a bank teller described the perpetrator’s

gun as small, possibly a .22 semi-automatic, with both rusty and shiny spots on it.

The Government provided notice pursuant to Rule 404(b) that it intended to

introduce evidence of Defendant’s possession of a .22 or .25 caliber gun as

circumstantial evidence to show Defendant had access to a firearm similar to the

one used in the second robbery. Defendant objected. After an evidentiary

hearing, the district court ruled the evidence was admissible.


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      Carliss Anthony Ball testified at trial that he gave Defendant a rusty .22 or

.25 caliber automatic, approximately a month and a half before the robbery took

place. Ball testified as follows:

      Q:   Mr. Ball, did you ever give Mr. Ringer a firearm?
      A:   Yes, sir.
      Q:   Do you remember exactly when that was?
      A.   No, sir.
      Q:   All right. Let’s take it from here. Where were you on . . . May
           29th of 1999?
      A:   Where was I?
      Q:   Yes.
      A:   I was in the custody of Pawhuska County.
      Q:   Have you ever been convicted of a felony?
      A:   No, sir.
      Q:   All right. Now in relation to when you went into the Pawhuska County
           jail on May 29th, how far before that was it that you gave Mr. Ringer a
           gun?
      A:   I don’t know no exact dates, sir.
      Q:   What’s your best approximation?
      A:   A month and a half.
      Q:   All right. Now, would you describe for the ladies and gentlemen of the
           jury, what the firearm looked like?
      A:   It was a chrome .25 automatic.
      Q:   Okay.
      A:   It was rusty at the bottom. I mean, you could tell that it was rusty
           because you could see the brown rust on it and it didn’t have a clip on
           it. I wasn’t even sure it even worked.
      Q:   Okay. All right. So it had some shinny [sic] places on it?
      A:   Yeah.
      Q:   And it had rust on it?
      A:   Mostly, yeah.
      Q.   What caliber was it?
      A.   It was a .25.
      Q.   Do you recall having testified yesterday in a hearing and saying that it
           was a .22 or .25?
      A:   It was either one. They both look exactly the same to me. If you have
           ever seen a .25 and a .22 automatic, they look the same.

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      Q:   And it was a semi-automatic?
      A:   Semi-automatic?
      Q:   Uh-huh.
      A:   I don’t know exactly what that means.
      Q:   All right. Was it a revolver or an automatic?
      A:   It was an automatic. It wasn’t a revolver.
      Q:   And did – what color was the handle?
      A:   I think it was a wood, like a wood grain, like this here.
      Q:   What color is that?
      A:   Brown.

Rec. Vol. V at 27-29.

      Deaunna Foster, Defendant’s fiancee, testified that she saw Defendant with

a firearm similar to the one Ball described sometime prior to the robbery. Foster

testified as follows:

      Q: Did you see the Defendant, Mr. Ringer, before May 21st, 1999, with a
         small firearm with a brown handle that was rusty, that may have been
         black at one time?
      A: Earlier in the year, I did.
      Q: All right. And how much before May 21st, did you see Mr. Ringer with
         that firearm?
      A: It was earlier in the year.
      Q: How much earlier, Ms. Foster?
      A: I can’t remember, maybe the end of January, first of February.

Rec. Vol. V at 85-86.

                                          II.

      Rule 404(b) prohibits the government from offering evidence of other

crimes, wrongs, or acts to demonstrate the bad character, moral turpitude, or

criminal disposition of a defendant to prove he acted in conformity with the

prior acts or events. Fed. R. Evid. 404(b). The rule does permit, however,

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the introduction of such evidence for other approved purposes, including

demonstration of a defendant’s identity, common scheme, plan, opportunity or

preparation. Id. Following the Supreme Court’s decision in Huddleston, to be

admissible under Rule 404(b):

      (1) the evidence must be offered for a proper purpose; (2) the
      evidence must be relevant; (3) the trial court must make a Rule 403
      determination of whether the probative value of the similar acts is
      substantially outweighed by its potential for unfair prejudice; and (4)
      pursuant to Fed. R. Evid. 105, the trial court shall, upon request,
      instruct the jury that evidence of similar acts is to be considered only
      for the proper purpose for which it was admitted.

485 U.S. at 691.

      The district court did not make specific reference to the Huddleston

requirements when it ruled on the admission of the testimony. If the transcript

reflects that the decision to admit was proper under the requirements of

Huddleston, however, any failure to explicitly mention them is harmless. United

States v. Owen, 15 F.3d 1528, 1535 (10th Cir. 1994). Our review of the record

convinces us that the admission of the testimony regarding Defendant’s

possession of a weapon prior to the robbery complied with the four Huddleston

requirements and, therefore, the district court did not abuse its discretion in

admitting such evidence.

      First, the Government offered the evidence for a proper purpose. Rule

404(b) permits the use of uncharged bad acts to the extent that the actions are


                                           5
probative of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. Fed. R. Evid. 404(b). The Government offered

the challenged evidence to show Defendant’s access to a firearm similar to the

one used in the robbery alleged in the indictment. See United States v. Robinson,

560 F.2d 507, 513 (2nd Cir. 1977) (en banc) (holding evidence of defendant’s

possession of a gun similar to one used in a robbery relevant to demonstrate

opportunity).

      Second, the evidence of Defendant’s access to a firearm prior to the

robbery was relevant. See Fed. R. Evid. 401. “Relevant evidence means evidence

having any tendency to make the existence of any fact that is of consequences to

the determination of the action more probable or less probable than it would be

without the evidence.” Id. As evidence linking Defendant to the crime, his

access to a firearm similar to the one used in the robbery tended to make his

participation in the robbery more probable than it would be without the evidence.

Evidence of possession of a weapon similar to that used in the robbery is relevant

to establish opportunity or preparation to commit the crime charged. See Gov’t of

the Virgin Islands v. Joseph, 685 F.2d 857, 860-61 (3d Cir. 1982) (holding no

abuse of discretion in permitting witness to testify that she saw a gun in

defendant’s car several months prior to crime).

      Third, Rule 403 gives the district court discretion to exclude relevant


                                          6
evidence if the danger of, among other things, unfair prejudice substantially

outweighs its probative value. See United States v. Rodriquez, 192 F.3d 946, 951

(10th Cir. 1999). “Evidence is unfairly prejudicial if it makes a conviction more

likely because it provokes an emotional response in the jury or otherwise tends to

affect adversely the jury’s attitude toward the defendant wholly apart from its

judgment as to his guilt or innocence of the crime charged.” Id. (internal

quotations omitted). Where the district court does not expressly rule on the

probativeness of evidence, it does so implicitly when the defendant objects to the

404(b) evidence as unfairly prejudicial and the court rejects defendant’s

argument. United States v. Fingado, 934 F.2d 1163, 1165-66 (10th Cir. 1991).

      Here, Defendant specifically objected to the evidence as prejudicial.

At the motion hearing, Defendant argued the evidence lacked probative value

because of the dissimilarity between the gun which Ball gave to Defendant and

the gun used in the robbery. Defendant had ample opportunity to present his

arguments regarding prejudice to the court, and the court clearly rejected those

arguments by admitting the evidence. See United States v. Fitzherbert, 13 F.3d

340, 343 (10th Cir. 1993) (holding no abuse of discretion where although district

court did not expressly find that a videotape’s probative value outweighed unfair

prejudice, the court in essence rejected defendant’s prejudice argument by

denying his motion after hearing argument on the issue).


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      Finally, Huddleston requires that “the trial court shall, upon request,

instruct the jury that the similar acts evidence is to be considered only for the

proper purpose for which it was admitted.” 485 U.S. at 691-92 (emphasis added).

Here, Defendant did not make such a request and, thus, the district court’s

decision not to give one is not an abuse of discretion. See Fed. R. Evid. 105;

Fingado, 934 F.2d at 1166.

      The district court did not abuse its discretion in admitting the challenged

testimony at trial. Therefore, its judgment is

      AFFIRMED.

                                        Entered for the Court,



                                        Bobby R. Baldock
                                        Circuit Judge




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