United States v. Robert Bruce Arch, 16 F.3d 412, 4th Cir. (1994)
United States v. Robert Bruce Arch, 16 F.3d 412, 4th Cir. (1994)
United States v. Robert Bruce Arch, 16 F.3d 412, 4th Cir. (1994)
3d 412
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished
dispositions is disfavored except for establishing res judicata, estoppel, or the law
of the case and requires service of copies of cited unpublished dispositions of the
Fourth Circuit.
Appeal from the United States District Court for the Western District of
North Carolina, at Bryson City. Richard L. Voorhees, Chief District
Judge. (CR-92-04-B)
Roger T. Smith, Asheville, NC, for appellant.
Jerry W. Miller, U.S. Atty., Thomas R. Ascik, Asst. U.S. Atty., Asheville,
NC, for appellee.
W.D.N.C.
AFFIRMED.
Before PHILLIPS, NIEMEYER, and HAMILTON, Circuit Judges.
OPINION
PER CURIAM:
* On the night of August 25, 1991, three neighbors observed Arch with a girl,
Frances "Tack" Smith, on the front steps of her house on the Cherokee Indian
Reservation. Four witnesses testified that Smith was twelve or thirteen years old
at the time.1 Gaynell Bradley testified that she saw Arch and Smith come out
on Smith's steps. They sat down and were "talking and carrying on. He sat
down on the bottom step and she came around and got down on her knees
between his legs and just ... started doing oral sex for him." Smith continued for
three or four minutes. When Smith's sister came out on the porch, Arch pushed
Smith away, got up, and fumbled with his pants. The other neighbors' testimony
corroborated Bradley's version of events.
An officer who investigated the incident that night testified that Arch told him
that he had never had sexual relations with Smith, but that she had made several
advances to him in the past. An FBI agent who questioned Arch one month
after the occurrence testified that Arch told him that Smith "attempted to give
him oral sex but ... he was not able to achieve an erection." Arch denied that
Smith's mouth touched his penis and said that her efforts continued for about
one minute, until headlights from a car prompted him to stand up and fasten his
pants.
II
6
III
8
Arch also argues that the district court's refusal to allow Smith's grandmother to
testify to Arch's character is reversible error. The district court analyzed the
proposed testimony under Fed.R.Evid. 404(a)(1) and excluded the witness. The
district court has discretion to determine relevance, Fed.R.Evid. 402, and may
exclude even relevant evidence that it determines would cause undue delay,
waste time, or be needlessly cumulative. Fed.R.Evid. 403. We review such a
decision for abuse of discretion. United States v. Hassan El, 5 F.3d 726 (4th
Cir.1993). Although Smith did not later call the other character witness, we find
that the disputed evidence had little, if any, relevance to the issues tried. Thus,
we perceive no abuse of discretion. Moreover, even if we were to find error in
this respect, the error would be harmless in light of the substantial evidence
adduced by the government. See Fed.R.Crim.P. 52(a).
Under 18 U.S.C. Sec. 2243(a)(1), the government was obligated to show that
Under 18 U.S.C. Sec. 2243(a)(1), the government was obligated to show that
Smith had "attained the age of 12 years but[had] not attained the age of 16
years."