                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4552


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARVIN DAMION HURLEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:10-cr-00052-JPB-DJJ-1)


Submitted:   October 27, 2011             Decided:   November 17, 2011


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Nicholas   J.  Compton,   Assistant  Federal   Public    Defender,
Martinsburg,  West   Virginia,   for  Appellant.      William   J.
Ihlenfeld, II, United States Attorney, Erin K. Reisenweber,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              After a jury trial, Marvin Damion Hurley was convicted

of one count of interstate domestic violence, in violation of 18

U.S.C.   § 2261(a)(2)           (2006).        On       appeal,    Hurley       claims    the

following:         (1) the evidence was insufficient to support the

conviction         and   (2)    the    district          court    erred    in     admitting

evidence of a prior bad act, admitting evidence of a threatening

statement and denying Hurley’s request to admit evidence of the

victim’s violent nature as evidence of habit.                         Finding no error,

we affirm.

              A person is guilty of interstate domestic violence if

the Government proves beyond a reasonable doubt that the person:

       cause[d] a spouse, intimate partner, or dating partner
       to travel in interstate or foreign commerce or to
       enter or leave Indian country by force, coercion,
       duress, or fraud, and who, in the course of, as a
       result of, or to facilitate such conduct or travel,
       commits or attempts to commit a crime of violence
       against that spouse, intimate partner, or dating
       partner[.]

18   U.S.C.    § 2261(a)(2)          (2006).        In    this    instance,       the    trial

evidence showed that Hurley used physical force to prevent his

wife   from    leaving         him    during       an    automobile     trip      from    West

Virginia to Maryland.

              “A     defendant        challenging         the     sufficiency       of     the

evidence      to    support      his    conviction         bears    a     heavy    burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)


                                               2
(internal quotation marks omitted).                   A jury’s verdict “must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”                      Glasser v. United

States, 315 U.S. 60, 80 (1942); see United States v. Perkins,

470 F.3d 150, 160 (4th Cir. 2006).                      Substantial evidence is

“evidence      that    a    reasonable     finder     of   fact   could    accept    as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.”                  United States v. Alerre, 430

F.3d    681,    693        (4th   Cir.    2005)      (internal     quotation      marks

omitted).       The court considers both circumstantial and direct

evidence, drawing all reasonable inferences from such evidence

in the Government’s favor.                United States v. Harvey, 532 F.3d

326, 333 (4th Cir. 2008).                 In resolving issues of substantial

evidence, this court does not reweigh the evidence or reassess

the    factfinder’s         determination       of    witness     credibility,      see

United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and

“can reverse a conviction on insufficiency grounds only when the

prosecution’s         failure     is     clear.”       United     States   v.     Moye,

454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation

marks omitted).

            Hurley contends the evidence was insufficient to show

that he committed a crime of violence against his wife.                         We note

that the statute requires either evidence of a crime of violence

or an attempt to commit such an offense.                    We have reviewed the

                                            3
record     and     find     that   his        wife’s     testimony,       which     was

corroborated in part by Sergeant Manning, clearly established

Hurley engaged in an act of violence against his wife in order

to get her back into the car to continue the trip into Maryland.

Although Hurley completely denied that he engaged in anything

approaching a violent act against his wife, the jury obviously

decided that his wife was a more credible witness.                        It is well

established that credibility determinations are within the sole

province    of     the    jury   and    are    not     reviewable.        See   United

States v. Kelly, 592 F.3d 586, 594 (4th Cir.), cert. denied, 130

S. Ct. 3374 (2010).

            This court reviews for abuse of discretion the court’s

rulings    on     the    admissibility    of     evidence.       United    States   v.

Bostian, 59 F.3d 474, 480 (4th Cir. 1995).                       Hurley challenges

the district court’s decision to admit evidence showing that

just a week or two before the incident at issue, he took a

similar    trip    with    his   wife    under    the    guise    of   visiting     his

father, but stopped instead at a house where there was cocaine.

He claims the evidence was not relevant to any issue at trial

and its probative value was outweighed by the danger of unfair

prejudice.

            We conclude that the district court did not abuse its

discretion in admitting the evidence as intrinsic to the charged

offense because it was part of the story of what happened during

                                          4
the night in question.             See United States v. Kennedy, 32 F.3d

876, 885-86 (4th Cir. 1994).              The evidence showed why Hurley’s

wife called his father on the night in question in order to find

out if he was expecting them.               It was this telephone call that

led to their first fight in the car on the way to Maryland.                           It

also showed why Hurley’s wife was reluctant to go on the trip in

the first place.

               We note that the district court gave a very specific

limiting       instruction   to     the   jury      regarding    how    it    was     to

consider       this   evidence.      Rule     403   of    the   Federal      Rules    of

Evidence provides that “relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair    prejudice.”        The    damage     that      probative     evidence      can

inflict on a defendant’s case is no basis for excluding the

evidence, however; only when that evidence results in unfair

prejudice, such as an appeal to the jury’s emotion, and that

prejudice “substantially outweighs the probative value of the

evidence,” must it be excluded.                United States v. Basham, 561

F.3d   302,     327   (4th Cir.     2009).       Where    the   jury    is    given    a

limiting instruction, any concern that the jury will improperly

use the evidence subsides.             United States v. Branch, 537 F.3d

328,     342    (4th Cir. 2008).          Based     on    the   court’s      limiting

instruction, we conclude the evidence was properly admitted.



                                          5
            Hurley also contends that the district court erred in

admitting       testimony     indicating          that      Hurley      told     a    fellow

prisoner that regardless of whether he was found guilty or not,

he would kill his wife and her boyfriend.                          This court has held

that threats against an actual witness are admissible because

the evidence exposes the defendant’s consciousness regarding his

belief    that     his      case     is     weak       or    unfounded         and      shows

consciousness of guilt.             See United States v. Young, 248 F.3d

260, 272 (4th Cir. 2001).                  The evidence must relate to the

charged offense and be reliable.                      Id.        We conclude that the

district court did not clearly err in finding that the proposed

evidence was both reliable and related to the charged offense.

We    further     conclude    that        the     court’s        limiting      instruction

regarding the use of this evidence limited the danger that the

evidence’s probative value was substantially outweighed by the

danger of unfair prejudice.           See Fed. R. Evid. 403.

            Hurley also argues that the district court erred by

not   allowing     him   to   present       evidence        of    his   wife’s       habitual

violent   nature.         Under      Rule       406   of     the    Federal      Rules     of

Evidence, habit evidence may be admissible to prove that the

conduct of a person was in conformity with habit or routine

practice.       See, e.g.,         Wilson v. Volkswagen of Am., Inc., 561

F.2d 494, 511 (4th Cir. 1977).                  Here, the proffered instances of

prior conduct was simply too few and far between to show that

                                            6
Hurley’s wife had a habit of reacting violently to a repeated

set of circumstances.

           Accordingly,       we   affirm   the   conviction   and   sentence.

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




                                       7
