[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAY 8, 2007 No. 06-14256 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D. C. Docket No. 06-00020-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEONSEY LONTE JOHNSON, TEDDY LEE HICKS, JR.,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Northern District of Florida _________________________
(May 8, 2007)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM: A Northern District of Florida grand jury indicted appellants, Deonsey Lonte
Johnson and Teddy Lee Hicks, Jr., with two offenses arising out of roadside
robbery and carjacking on September 30, 2005. Count One charged them with
violating 18 U.S.C. §§ 2119 and 2; Count Two charged them with knowingly using
and carrying a firearm, a shotgun, in furtherance of the Count One offense in
violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Appellants pled not guilty and stood
trial. A jury found them guilty as charged. They now appeal their convictions.
Both challenge the sufficiency of the evidence to convict and thus seek a judgment
of acquittal. Hicks alternatively seeks a new trial on the ground that the district
court abused its discretion in admitting similar acts evidence under Federal Rule of
Evidence 404(b). We affirm.
The Government’s proof established the following. On September 30, 2005,
in Pensacola, Florida, Hicks and his girlfriend, Heather Wylie, were sleeping in
Hicks’s parents trailer. They were drug addicts, having stayed up the night before
using cocaine. Johnson came to the trailer, awakened them, and said that he had
seen someone – the eventual victims – with a wad of cash at a nearby gas station.
Hicks and Wylie immediately dressed, Hicks armed himself with his pistol-grip
shotgun, and he, Wylie and Johnson drove to the gas station in his car. Johnson
rode in the front passenger’s seat; Wylie was in the back seat.
2 By the time they got to the gas station, the victims were on the highway,
headed toward Interstate 10. Hicks followed the victims’ car onto the interstate
and pulled into the left lane, alongside the car. Johnson motioned to the victims
that their car was dragging something and indicated that they should pull off the
highway onto the shoulder. Hicks drove onto the shoulder, and the victims
followed suit, parking behind Hicks’s car. The victims got out of their car and
walked behind it to see what was wrong. As they were examining their car,
Johnson approached them with the shotgun, yelling “give it up, I’m not playing.”
The victims indicated that any cash they had was in their car, so Johnson got into
its driver’s seat, left the victims standing there, and drove off, with Hicks’s car in
the lead. The two vehicles then exited the interstate. Johnson turned down a dirt
road, right off the exit. Hicks, driving ahead, backed up and pulled beside
Johnson. They transferred the victims’ belongings to Hicks’s car, drove to
Johnson’s residence, a trailer, and divided their spoils.
These events were described by the victims and by Wylie, who testified
under a grant of use immunity. She was facing charges stemming from what we
have related above and a home invasion robbery Hicks and she had committed
three days before, using Hicks’s shotgun. Wylie’s testimony removed any doubt
as to the identity of the two men with her during the carjacking; they were Hicks
3 and Johnson.
To make out a case of carjacking, as alleged in Count One, the government
must establish that the defendant, “[w]ith the intent to cause death or serious bodily
harm, [took] a motor vehicle that has been transported, shipped, or received in
interstate or foreign commerce from the person or presence of another by force and
violence or by intimidation, or attempt[ed] to do so.” 18 U.S.C. § 2119. The intent
element of this offense is satisfied when, “at the moment the defendant demanded
or took control over the driver’s automobile, the defendant possessed the intent to
seriously harm or kill the victim if necessary to steal the car.” United States v.
Fulford, 267 F.3d 1241, 1244 (11th Cir. 2001) (internal quotations and citations
omitted).
Count Two offense charged a violation of 18 U.S.C. § 924(c). That section
states that “any person who, during and in relation to any crime of violence or drug
trafficking crime . . . for which the person may be prosecuted in a court of the
United States . . . possesses a firearm” is subject to certain mandatory penalties.
Both appellants were charged in both counts with violating 18 U.S.C. § 2.
Section 2 states that a person who “commits an offense against the United States or
aids, abets, counsels, commands, induces or procures its commission, is punishable
as a principal.” In order to sustain a conviction under an aiding and abetting
4 theory, “the government must show that a substantive offense was committed, that
[the defendant] associated himself with the criminal venture, and that [the
defendant] committed some act which furthered the crime.” United States v. Perez,
922 F.2d 782, 785 (11th Cir. 1991). In addition, “the government must show that
[the defendant] had the same unlawful intent as the actual perpetrators.” Id.
The prosecution’s case against Johnson was overwhelming on both counts.
We therefore reject his sufficiency-of-the-evidence challenge and affirm his
convictions.
Hicks concedes that the proof showed that he agreed and intended to
participate in an armed robbery, but contends that he had no knowledge that the
victims’ car was going to be stolen until Johnson had actually stolen it. He also
contends that he could not be found guilty of possession of a firearm during the
carjacking if he did not intend to commit a carjacking.
Hicks does not dispute that Johnson committed a carjacking. Hicks
associated himself with the offense when he drove Wylie and Johnson in his car to
the gas station, followed the victims’ from there onto the interstate and pulled in
front of it, and then observed Johnson exit his car carrying his, Hicks’s, shotgun.
Hicks furthered the crime by bringing his shotgun along, when they left his
parents’ trailer to find the victims. Although their primary objective was to steal a
5 large amount of cash, Hicks knew Johnson had use of his shotgun, and saw
Johnson leave his car with the shotgun and point it at the victims before getting
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IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAY 8, 2007 No. 06-14256 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D. C. Docket No. 06-00020-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEONSEY LONTE JOHNSON, TEDDY LEE HICKS, JR.,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Northern District of Florida _________________________
(May 8, 2007)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM: A Northern District of Florida grand jury indicted appellants, Deonsey Lonte
Johnson and Teddy Lee Hicks, Jr., with two offenses arising out of roadside
robbery and carjacking on September 30, 2005. Count One charged them with
violating 18 U.S.C. §§ 2119 and 2; Count Two charged them with knowingly using
and carrying a firearm, a shotgun, in furtherance of the Count One offense in
violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Appellants pled not guilty and stood
trial. A jury found them guilty as charged. They now appeal their convictions.
Both challenge the sufficiency of the evidence to convict and thus seek a judgment
of acquittal. Hicks alternatively seeks a new trial on the ground that the district
court abused its discretion in admitting similar acts evidence under Federal Rule of
Evidence 404(b). We affirm.
The Government’s proof established the following. On September 30, 2005,
in Pensacola, Florida, Hicks and his girlfriend, Heather Wylie, were sleeping in
Hicks’s parents trailer. They were drug addicts, having stayed up the night before
using cocaine. Johnson came to the trailer, awakened them, and said that he had
seen someone – the eventual victims – with a wad of cash at a nearby gas station.
Hicks and Wylie immediately dressed, Hicks armed himself with his pistol-grip
shotgun, and he, Wylie and Johnson drove to the gas station in his car. Johnson
rode in the front passenger’s seat; Wylie was in the back seat.
2 By the time they got to the gas station, the victims were on the highway,
headed toward Interstate 10. Hicks followed the victims’ car onto the interstate
and pulled into the left lane, alongside the car. Johnson motioned to the victims
that their car was dragging something and indicated that they should pull off the
highway onto the shoulder. Hicks drove onto the shoulder, and the victims
followed suit, parking behind Hicks’s car. The victims got out of their car and
walked behind it to see what was wrong. As they were examining their car,
Johnson approached them with the shotgun, yelling “give it up, I’m not playing.”
The victims indicated that any cash they had was in their car, so Johnson got into
its driver’s seat, left the victims standing there, and drove off, with Hicks’s car in
the lead. The two vehicles then exited the interstate. Johnson turned down a dirt
road, right off the exit. Hicks, driving ahead, backed up and pulled beside
Johnson. They transferred the victims’ belongings to Hicks’s car, drove to
Johnson’s residence, a trailer, and divided their spoils.
These events were described by the victims and by Wylie, who testified
under a grant of use immunity. She was facing charges stemming from what we
have related above and a home invasion robbery Hicks and she had committed
three days before, using Hicks’s shotgun. Wylie’s testimony removed any doubt
as to the identity of the two men with her during the carjacking; they were Hicks
3 and Johnson.
To make out a case of carjacking, as alleged in Count One, the government
must establish that the defendant, “[w]ith the intent to cause death or serious bodily
harm, [took] a motor vehicle that has been transported, shipped, or received in
interstate or foreign commerce from the person or presence of another by force and
violence or by intimidation, or attempt[ed] to do so.” 18 U.S.C. § 2119. The intent
element of this offense is satisfied when, “at the moment the defendant demanded
or took control over the driver’s automobile, the defendant possessed the intent to
seriously harm or kill the victim if necessary to steal the car.” United States v.
Fulford, 267 F.3d 1241, 1244 (11th Cir. 2001) (internal quotations and citations
omitted).
Count Two offense charged a violation of 18 U.S.C. § 924(c). That section
states that “any person who, during and in relation to any crime of violence or drug
trafficking crime . . . for which the person may be prosecuted in a court of the
United States . . . possesses a firearm” is subject to certain mandatory penalties.
Both appellants were charged in both counts with violating 18 U.S.C. § 2.
Section 2 states that a person who “commits an offense against the United States or
aids, abets, counsels, commands, induces or procures its commission, is punishable
as a principal.” In order to sustain a conviction under an aiding and abetting
4 theory, “the government must show that a substantive offense was committed, that
[the defendant] associated himself with the criminal venture, and that [the
defendant] committed some act which furthered the crime.” United States v. Perez,
922 F.2d 782, 785 (11th Cir. 1991). In addition, “the government must show that
[the defendant] had the same unlawful intent as the actual perpetrators.” Id.
The prosecution’s case against Johnson was overwhelming on both counts.
We therefore reject his sufficiency-of-the-evidence challenge and affirm his
convictions.
Hicks concedes that the proof showed that he agreed and intended to
participate in an armed robbery, but contends that he had no knowledge that the
victims’ car was going to be stolen until Johnson had actually stolen it. He also
contends that he could not be found guilty of possession of a firearm during the
carjacking if he did not intend to commit a carjacking.
Hicks does not dispute that Johnson committed a carjacking. Hicks
associated himself with the offense when he drove Wylie and Johnson in his car to
the gas station, followed the victims’ from there onto the interstate and pulled in
front of it, and then observed Johnson exit his car carrying his, Hicks’s, shotgun.
Hicks furthered the crime by bringing his shotgun along, when they left his
parents’ trailer to find the victims. Although their primary objective was to steal a
5 large amount of cash, Hicks knew Johnson had use of his shotgun, and saw
Johnson leave his car with the shotgun and point it at the victims before getting
into their car. In short, the evidence was sufficient to convict Hicks for aiding and
abetting the commission of the charged offenses.
Hicks argues alternatively that he is entitled to a new trial because the court
abused its discretion in admitting testimony from Wylie and the victim of the home
invasion robbery she and Hicks perpetrated. Wylie testified that on September 27,
three days before the carjacking, she and Hicks went to a trailer home they had
visited with a friend earlier in the day. Hicks took his shotgun along – the same
shotgun Johnson used in the carjacking – and knocked on the door. The occupant,
a construction worker from El Salvador, would not come to the door, so Hicks
sent Wylie to get a screw driver from his car; he used it to pry open the door.
Hicks and Wylie then entered the trailer and demanded money from the man. He
said it was in the bedroom. When Wylie could not find it, Hicks and the man
scuffled over the shotgun, and it fired. Hicks and Wylie found the man’s money,
left the trailer and used the money to buy drugs.
The robbery victim testified to the robbery. He said that Hicks struck him
with the gun and put the gun in his mouth.1 When he pushed Hicks away, the gun
1 He identified Hicks from a photo lineup.
6 went off. He was rendered unconscious. When he came to, he discovered that the
intruders had taken $400 from his wallet.
Rule 404 of the Federal Rules of Evidence provides:
(b) Other crimes, Wrongs, or Acts.–Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b).
To be admissible, Rule 404(b) evidence must (1) be relevant to one of the
enumerated issues and not to the defendant’s character; (2) the prior act must be
proved sufficiently to permit the jury to determine that the defendant committed
the act; and (3) the probative value of the evidence cannot be substantially
outweighed by its undue prejudice. United States v. Chavez, 204 F.3d 105, 1317
(11th Cir. 2000). Hicks does not take the position in his brief that all of the
evidence of the home invasion was inadmissible; he appears to concede the first of
the above three elements. His argument is that the prosecution improperly made
the home invasion a feature of the trial and thereby diverted the jury’s attention to
the charged offenses – specifically, to his role in the carjacking. We disagree. The
government’s case focused on the whole on the carjacking. The home invasion
testimony was highly probative of Hicks’s intent, identity, state of mind, and –
7 most of all – his planning of the carjacking. He knew that the victims were
traveling in a car and that the car had to be stopped if he and Johnson were to rob
them of their cash. He armed himself to ensure that their success, in the same way
he armed himself to rob the Salvadoran construction worker. We therefore find no
abuse of discretion in the court’s evidentiary ruling.
AFFIRMED.