363 S.W.3d 39 (2012)
Robert L. BATEMAN, et al., Respondents,
James K. Owens, et al., Appellants,
v.
PLATTE COUNTY, Missouri, Respondent.
No. SC 91898.
Supreme Court of Missouri, En Banc.
April 3, 2012.
*40 James C. Bowers Jr., Mary Jo Shaney, Patricia R. Jensen, White Goss Bowers March Schulte & Weisenfels P.C., Kansas City, for the Property Owners.
Robert H. Shaw, McGinniss & Shaw LLC, Platte City, for the County.
Jonathan Sternberg, Jonathan Sternberg, Kansas City, for Bateman.
RICHARD B. TEITELMAN, Chief Justice.
Platte County and several owners of lots in the Bridle Parc Estates subdivision appeal a judgment declaring Bridle Parc Lane (BP Lane) to be a private road. They assert that the action was barred by *41 the 10-year statute of limitations provided in section 516.010, RSMo.[1] Alternatively, they assert that BP Lane became a public road through statutory dedication, common law dedication and the establishment of a prescriptive easement. The judgment is affirmed.

FACTS
In 1980, Yiddy Bloom owned a single tract of land located south of Mace Road. Bloom's property was separated from Mace Road by three other properties. In September 1980, the owners of these three properties granted Bloom three separate, contiguous easements extending from Mace Road to Bloom's property. The easements provided the only access from Bloom's property to Mace Road and specifically granted Bloom and his "successors and assigns" a "street and right of way easement."
In December 1980, Platte County approved a plat for the three properties traversed by Bloom's easements. The plat established the Bridle Parc Estates subdivision (BP-I) and depicted a street from Bloom's property to Mace Road. The street was located on Bloom's easements. The BP-I plat dedicated all streets and roads on the plats to public use. Bloom did not sign the plat.
In September 1984, Platte County approved a plat subdividing Bloom's property into the Bridle Parc Estates II subdivision (BP-II). The BP-II plat depicted a street running south from the street on the BP-I plat and terminating at the southern boundary of the BP-II subdivision. Like the BP-I plat, the BP-II plat dedicated all streets to public use and was not signed by Bloom. When BP-II was platted, the street through BP-II had no continuity with any public road.
After the BP-II plat was finalized, Bloom sold all of his BP-II lots to Robert Pease. Pease then sold all of the BP-II lots to new owners who signed the BP-II plat. The BP-II plat was amended in 1985 by consent of all of the BP-II landowners. The amendment corrected boundaries and rededicated a modified BP Lane to public use. The amended plat was recorded with Platte County on October 3, 1988.
In 2005, a developer attempted to plat a new subdivision within BP-II and sought Platte County's approval to use BP Lane as a public road. BP-II resident Robert Bateman objected and notified Platte County of the private easements on which BP Lane was situated. On May 25, 2006, the County notified Bateman of its determination that "Bridle Parc Lane is within public right-of-way."
On July 7, 2006, Bateman filed a two-count petition against the county seeking declaratory and injunctive relief. Bateman's petition asserted that BP Lane could not be dedicated to public use at the time BP-I and BP-II were platted because the easement owners never had consented to the dedication.
Platte County filed an answer denying the claims in the petition and asserting Bateman's claims were "untimely and barred by the statute of limitations." The circuit court permitted other landowners in BP-I and BP-II to intervene as either plaintiffs or defendants in the lawsuit.
The circuit court conducted a bench trial. Platte County and the intervening defendants argued that BP Lane had been dedicated statutorily to public use through the recorded BP-I and BP-II plats. Alternatively, they argued that BP Lane became a public road through a common law dedication or prescriptive easement. *42 Bateman and the intervening plaintiffs (collectively, plaintiffs) argued that BP Lane never was dedicated to public use because the easement holders, beginning with Yiddy Bloom, never relinquished their private easements. Plaintiffs also presented testimony supporting their position that BP Lane was used primarily by subdivision residents and never was used by the general public as a public road.
The circuit court entered a judgment declaring BP Lane to be a private road. The circuit court found that BP Lane was "never legally dedicated to public use" because the easement holders did not consent to the dedication. The court also found that BP Lane was used as a private road, not a public road. The court did not address the statute of limitations defense. Defendants appeal.

ANALYSIS

I. Section 516.010
Defendants assert that the circuit court erred in failing to determine that Bateman's claim for declaratory judgment was barred by the 10-year statute of limitations in Section 516.010. The applicability of a statute of limitation argument presents a question of law subject to de novo review. Warren County Concrete, L.L.C v. Peoples Bank & Trust Co., 340 S.W.3d 289, 290 (Mo.App.2011).
The circuit court properly declined to address defendant's statute of limitations defense because the defense was waived. Rule 55.08 requires a party to plead all affirmative defenses, including a statute of limitations defense. In Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257, 261 (1914), this Court held that one seeking to take advantage of the statute of limitations "must plead the very provision on which he depends.'" Modine Manufacturing Company v. Carlock, 510 S.W.2d 462, 467 (Mo. 1974); see also Reynolds v. Carter County, 323 S.W.3d 447, 452 (Mo.App.2010); Southwestern Bell Telephone Co. v. Buie, 758 S.W.2d 157, 161 (Mo.App.1988).
In this case, the county's initial answer alleged only that Bateman's claims were "untimely and barred by the statute of limitations." Likewise, after additional plaintiffs and defendants intervened, defendants' answer again alleged only that plaintiffs' claims were "barred by the statute of limitations." Neither answer included a reference to a particular statute of limitation. A general reference to "the statute of limitations" does not satisfy the necessity of pleading the particular provision relied upon. See, Livingston v. Webster County Bank, 868 S.W.2d 154, 156 (Mo.App. 1994) (motion to dismiss that pleaded "barred by the applicable Missouri Statute of Limitations" did not plead the particular statute of limitation and was deficient); Tudor v. Tudor, 617 S.W.2d 610, 613 (Mo.App.1981) (defendant's allegation that plaintiff's claim was "barred by the statute of limitations" held insufficient to raise the affirmative defense).
Defendants argue that their statute of limitations defense was tried by consent pursuant to Rule 55.33(b) because plaintiffs asserted in a post-trial brief that the action was not barred by section 516.010. Rule 55.33(b) deals with "Amendments to Conform to the Evidence" and states, in pertinent part:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend *43 does not affect the result of the trial of these issues.
Plaintiffs' reference to section 516.010 in a post-trial brief does not constitute trial of the issue by express or implied consent. Asserting a statute of limitation after the trial is over cannot constitute trial by consent. A defense must be asserted specifically before the case is decided. Reynolds, 323 S.W.3d at 452; see also Patel v. Pate, 128 S.W.3d 873, 877 (Mo.App.2004) (holding that a statute of limitation defense raised for the first time in a motion to dismiss filed at the close of the plaintiffs' evidence was untimely). Defendants did not specifically assert section 516.010 as an affirmative defense prior to trial and thereby waived that defense. Consequently, plaintiffs' action is not barred by the 10-year limitation period set forth in section 516.010.

II. BP Lane is a private road
Defendants assert that BP Lane became a public road through statutory dedication, common law dedication and the establishment of a prescriptive easement. Because this was a court-tried case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court views the evidence and permissible inferences drawn from the evidence in the light most favorable to the judgment. Suffian v. Usher, 19 S.W.3d 130, 136 (Mo. banc 2000).
It is undisputed that, in 1980, Bloom was granted three contiguous "street and right of way" easements from his property, now known as BP-II, across the property now known as BP-I. Bloom's easements conferred a right to use part of the property now known as BP-I for the purpose of maintaining an access road from Bloom's property to Mace Road. The easements were granted not only to Bloom but also to his "successors and assigns." Bloom's easements were "easements appurtenant" because they created a dominant tenement (the land that benefits from the easement) and servient tenements (the land that is burdened by the easement). See Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 606-07 (1934). Under the facts of this case, BP-II is the dominant tenement and BP-I is the servient tenement.
Defendants' argument that the easement across BP-I was dedicated to the public fails for two reasons. First, the property owners in BP-I cannot eliminate unilaterally the easements that belonged to Bloom and that were transferred to his successors and assigns in BP-II. The owners of the land platted as BP-I had no power to eliminate the easement for the simple fact that it did not belong to them. This principle is illustrated in City of Sarcoxie v. Wild, 64 Mo.App. 403 (1896).
In Sarcoxie, Emma Carnahan acquired a 20-acre parcel encumbered by an access easement owned by her neighbor, Herman Wild. Id. at 405. Similar to this case, Ms. Carnahan subdivided her land and purported to dedicate Wild's easement as a public road. Id. Wild blocked the public road and was convicted of trespass. Id. His conviction was reversed because Ms. Carnahan had no power to dedicate Wild's private easement to public use because her property was the servient estate to Wild's easement. Id. at 406. Her title was encumbered by Wild's property interest in the easement. Id. Because Wild did not consent to the dedication of his private easement to the public, Ms. Carnahan's purported dedication was a nullity. Wild could not be deprived of his easement "without his consent, or by some lawful and regular proceeding." Id.
*44 The purported dedication of the easement over BP-I and owned by the "successors and assigns" of Bloom fails for the same reasons as Carnahan's purported dedication in Sarcoxie. The owners of land in BP-II were entitled to retain their easement across BP-I unless they either consented to the dedication or the easement was eliminated via some other legal proceeding. That did not happen in this case.
The fact that the easement owners did not consent to the dedication disposes of defendants' argument that BP Lane became a public road pursuant to section 445.070. Section 445.070 provides that a recorded plat is a "sufficient conveyance to vest the fee of such parcels of land as are therein named, described, or intended for public use in such city," or "in the proper county...." However, as established above, the BP-I plat did not eliminate the easement because neither Bloom nor his successors relinquished their easements and there was no "lawful or regular proceeding" to divest them of the easements. Interpreting section 445.070 in the manner advocated by defendants would require this Court to sanction the condemnation of a privately held easement without just compensation. This Court will not interpret a statute in a manner that leads to an unconstitutional result. See, Cascio v. Beam, 594 S.W.2d 942, 946 (Mo. banc 1980)("[A] court should avoid a construction which would bring a statute into conflict with constitutional limitations").
Defendants also argue that the BP-II plat converted BP Lane from a private to a public road. It did not. The BP-II plat, which subdivided the dominant tenement, did not eliminate the easements because the plat purported only to dedicate to public use the "streets and roads shown on this Plat...." A plat is interpreted according to its plain language. Saladin v. Jennings, 111 S.W.3d 435, 441 (Mo.App.2003). The BP-II plat did not refer to the BP-I easements and, therefore, did not purport to dedicate the BP-I easements to public use. Moreover, as the trial court found, the portion of the road through BP-II had no continuity with a public road when BP-II was platted. Generally, a private road will not be dedicated to public use if, at the time of the purported dedication, the private road does not connect to a public road. White v. Meadow Park Land Co., 240 Mo.App. 683, 213 S.W.2d 123, 126 (1948). The BP-II plat did not convert BP Lane to a public road.
The second reason that defendants' argument fails is that the trial court found, as factual matter, that there was no public use of BP Lane. There was ample testimony from residents of BP-I and BP-II to support this finding and, under the applicable standard of review, this Court defers to the finding that BP Lane was not used as a public road. The fact that BP Lane was not used as a public road disposes of defendants' remaining arguments that BP Lane was dedicated as a public road pursuant to section 228.190.1, common law dedication and by establishment of a prescriptive easement.
Section 228.190.1 provides in pertinent part:
"All roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public continuously, and upon which there shall have been expended public money or labor for such period shall be deemed legally established roads...."
*45 All dedications under section 228.190.1 are premised on public use for a period of 10 years or more. There was no dedication of BP Lane to the public pursuant to section 228.190.1 because, as the trial court found, there has been no public use of BP Lane.
The lack of public use also disposes of defendants' arguments of common law dedication and prescriptive easement. A common law dedication requires proof of the owner's intent to dedicate the road to public use, public acceptance of such use and actual use by the public. Tinnes v. Brand, 248 S.W.3d 113, 115 (Mo.App.2008). Similarly, a prescriptive easement requires proof of "continuous, uninterrupted, visible, and adverse use which endures for at least ten years." Phillips v. Sommerer, 917 S.W.2d 636, 638 (Mo.App.1996). The fact that BP Lane was not used by the public means that there was no common law dedication or prescriptive easement.

CONCLUSION
The judgment is affirmed.
All concur.
NOTES
[1]  All references to statutes are to RSMo, 2000.


Order filed January 3, 2014

                                      In The

                     Fourteenth Court of Appeals
                                    ____________

                              NO. 14-13-00627-CV
                                    ____________

                  IN THE MATTER OF D.A., A JUVENILE

                    On Appeal from the 315th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2011-07795J

                                    ORDER

      Appellant’s brief was due December 16, 2013. No brief or motion for
extension of time has been filed.

      Unless appellant submits a brief to the clerk of this court on or before
February 3, 2014, the court will dismiss the appeal for want of prosecution. See
Tex. R. App. P. 42.3(b).

                                       PER CURIAM


(2008)
Rhonda FARRAH, Plaintiff,
v.
MONTEREY TRANSFER & STORAGE, INC., Defendant.
No. C 07-06044 JW.
United States District Court, N.D. California, San Jose Division.
May 23, 2008.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH PREJUDICE
JAMES WARE, District Judge.

I. INTRODUCTION
Rhonda Farrah ("Plaintiff) brings this action against Monterey Transfer & Storage, Inc. ("Defendant") for alleged violation of the Interstate Commerce Act, 49 U.S.C. § 14706. Presently before the Court is Defendant's Motion to Dismiss, (hereafter, "Motion," Docket Item No. 9.) The Court conducted a hearing on April 7, 2008. Based on the papers submitted to date and oral arguments of counsel, the Court GRANTS Defendant's Motion to Dismiss with prejudice.

II. BACKGROUND
In a First Amended Complaint filed on February 1, 2008, Plaintiff alleges as follows:
Plaintiff is an individual residing in Monterey, California.[1] (First Amended Complaint for Contravention of Federal Motor Carrier Safety Administration Act ¶ 2, hereafter, "FAC," Docket Item No. 7.) Defendant is a California corporation with its principal place of business in California. (Id. ¶ 3.) Defendant provides moving and storage related services for individual consumers. (Id. ¶ 6.)
On January 11, 2002, Plaintiffs attorney, Barry K. Rothman ("Rothman"), arranged for Defendant to package, transfer, and store Plaintiffs personal belongings. (Id.) In April 2004, Defendant notified Rothman by telephone that one of the three containers holding Plaintiffs items had been lost. (Id. ¶ 10.) The value of the items in the lost vault is estimated to be $205,010.00. (Id. ¶ 2.) Plaintiff filed a claim with Defendant's insurance carrier. (Id.) Defendant's insurance carrier has neither approved nor denied Plaintiffs claim. (Id. ¶ 23.)
On the basis of the allegations outlined above, Plaintiff alleges a single cause of action for violation of the Interstate Commerce Act, 49 U.S.C. § 14706.
Presently before the Court is Defendant's motion to dismiss for lack of subject matter jurisdiction.

III. STANDARDS
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a motion to dismiss for lack of subject-matter jurisdiction. A 12(b)(1) motion may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). On a facial challenge, all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See Wolfe, 392 F.3d at 362; Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir.1979). When a defendant makes a factual challenge "by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). The court need not presume the truthfulness of the plaintiff's allegations under a factual attack. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). However, in the absence of a full-fledged evidentiary hearing, disputes in the facts pertinent to subject matter are viewed in the light most favorable to the opposing party. Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996). The disputed facts related to subject-matter jurisdiction should be treated in the same way as one would adjudicate a motion for summary judgment. Id.

IV. DISCUSSION
Defendant moves to dismiss on the ground that the Court lacks subject matter jurisdiction. Defendant contends that the Interstate Commerce Act does not apply to goods transported within a state. (Motion at 2.)
Under the Interstate Commerce Act, a carrier may be held liable for goods lost or damaged during transit.[2] 49 U.S.C. § 14706 However, the reach of § 14706 is defined by reference to the jurisdiction of the Surface Transportation Board. 49 U.S.C. § 14706(a)(1). The Surface Transportation Board has jurisdiction over goods transported between "a place in a State and a place in another State" or, between "a State and another place in the same State through another State." 49 U.S.C. § 13501(1)(A), (B). A plaintiff may sue under § 14706 in either state or federal court; however, district courts have original jurisdiction only if the amount in controversy exceeds $10,000. 28 U.S.C. § 1337(a).
Whether transportation is interstate or intrastate under the Interstate Commerce Act "is determined by the essential character of the commerce, manifested by the shipper's fixed and persisting transportation intent at the time of the shipment, and is ascertained from all of the facts and circumstances surrounding the transportation." S. Pac. Transp. Co. v. I.C.C., 565 F.2d 615, 617 (9th Cir.1977). When goods are shipped entirely within a state, the Interstate Commerce Act does not apply. See, e.g., Burlington N., Inc. v. Weyerhaeuser Co., 719 F.2d 304, 310 (9th Cir.1983).
In this case, Plaintiff alleges that she arranged for Defendant to package and transfer her personal property from her home in Pebble Beach, California, to Defendant's storage facility in Salinas, California. (FAC ¶ 4.) There are no allegations that her personal property was ever intended to or did in fact leave the state of California. Thus, the agreement between the parties did not involve the transportation of goods between "a place in a State and a place in another State" or between "a State and another place in the same State through another State." Therefore, the transportation of Plaintiffs goods is not within the jurisdiction of the Interstate Commerce Act.
Plaintiff contends that a wholly intrastate move may be covered by the Interstate Commerce Act. (Motion at 6.) Plaintiff relies on several cases[3] where courts held that loss of a shipment during intrastate transport is covered by the Interstate Commerce Act if the intrastate transport was only the first portion of an interstate move. (Id.) These cases are inapposite to Plaintiff's claim because she does not allege that her agreement with Defendant included transportation to an ultimate destination outside of California. On the contrary, Plaintiff alleges that her property was destined for storage at Defendant's warehouse in California. (FAC ¶ 4.) Plaintiff further alleges that the remainder of her property was ultimately delivered to her residence in Carmel Valley, California. (Id. ¶ 11.) Thus, unlike the cases cited, Plaintiffs arrangement with Defendant did not contemplate any interstate transportation.
In the alternative, Plaintiff contends that Defendant should be judicially estopped from challenging the Court's subject matter jurisdiction. (Motion at 3.)
Judicial estoppel is an equitable doctrine that "precludes a party from asserting a position in a current legal proceeding which is contrary to the position that party previously asserted in another." Stevens Technical Services, Inc. v. S.S. Brooklyn, 885 F.2d 584, 588 (9th Cir.1989) (quotations and citations omitted). The rule can be invoked by the court at its discretion and "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quotations and citations omitted). Courts have uniformly recognized that the purpose of judicial estoppel is "to protect the integrity of the judicial process," by "prohibiting parties from deliberately changing positions according to the exigencies of the moment." Id. at 750, 121 S.Ct. 1808 (quotations and citations omitted).
In this case, Defendant had previously asserted that Plaintiffs state law claims were preempted by the Interstate Commerce Act. (See Defendant's Motion to Dismiss, Docket Item No. 4.) Plaintiff relies on Di Frischia v. New York Cent. R.R. Co., 279 F.2d 141 (3rd Cir.1960) for the proposition that judicial estoppel may prevent a party from challenging subject matter jurisdiction if it had previously asserted that jurisdiction existed. (Motion at 3.) Di Frischia involved a defendant who maintained that there was diversity of citizenship between the parties so that federal jurisdiction was proper under 28 U.S.C. § 1332. However, after the statute of limitations expired, defendant claimed that it was not diverse and sought to dismiss the action. The district court dismissed the case for lack of subject matter jurisdiction. The Third Circuit reversed, holding that judicial estoppel prevented defendant from playing "fast and loose with the judicial machinery [to] deceive the courts." Id. at 144.
However, the Supreme Court in Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n. 9, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), and Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), made it clear that jurisdiction cannot be created by estoppel, even as a sanction for defendant's bad faith conduct. The Third Circuit itself recognized the abrogation of Di Frischia in Rubin v. Buckman, where it stated that in light of Ins. Corp. Of Ireland and Kroger, Di Frischia "can no longer be regarded as the law of this circuit." 727 F.2d 71, 72 (3rd Cir. 1984); see also Mennen Co. v. Atlantic Mut. Ins. Co., 147 F.3d 287 n. 9 (3rd Cir.1998).
Thus, assuming arguendo that Defendant has taken contrary positions, such actions are irrelevant for determining the Court's subject matter jurisdiction. Accordingly, the Court GRANTS Defendant's motion to dismiss.

V. CONCLUSION
The Court GRANTS Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction. Since amendment would not cure the defect in jurisdiction, Plaintiffs First Amended Complaint is dismissed with prejudice.
NOTES
[1]  (Plaintiff filed the original complaint on November 29, 2007, alleging two causes of action: (1) breach of contract and (2) violation of 49 U.S.C. § 14706.) (See Docket Item No. 1.) In response to Defendant's motion to dismiss, Plaintiff filed an Amended Complaint.
[2]  Section 14706 is also known as the "Carmack Amendment." See Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913). The Carmack Amendment was enacted in 1906 as an amendment to the Interstate Commerce Act of 1887. In enacting it. Congress intended to provide interstate carriers with reasonable certainty and uniformity in predicting their potential liability. The Carmack Amendment did this both by establishing a single uniform regime for recovery by shippers directly from the interstate common carrier in whose care their items are damaged, and by preempting the shipper's state and common law claims against a carrier for loss or damage to goods during shipment. See generally Project Hope v. M/V IBN SINA, 250 F.3d 67, 73 n. 6 (2nd Cir.2001).
[3]  Plaintiff relies on Marks v. Suddath Relocation Sys., Inc., 319 F.Supp.2d 746, 750 (S.D.Tex.2004); Rini v. United Van Lines, 104 F.3d 502, 506 (1st Cir.1997); Diamond Transp. Group, Inc. v. Emerald Logistics Solutions, Inc., 2006 WL 1789036 (E.D.Pa.2006); Rahim Visram v. Darryl Flood Warehouse and Movers, 2006 WL 305802 (S.D.Tex.2006); and Newens v. Orna Servs. Inc., 2002 WL 1310734 (N.D.Cal.2002).


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 16-4610

UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

LUIS LABASTIDA, a/k/a Guicho,

                    Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District Judge. (8:16-cr-00001-DKC-5)

Submitted: June 20, 2017                                          Decided: June 27, 2017

Before SHEDD and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Susan A. Hensler, Baltimore, Maryland, for Appellant. Leah Bressack, Lindsay Eyler
Kaplan, Assistant United States Attorneys, Greenbelt, Maryland, for Appellee.

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

       Luis Labastida pled guilty to conspiracy to possess with intent to distribute and to

distribute cocaine, in violation of 21 U.S.C. § 846 (2012). The district court sentenced

him to 66 months’ incarceration, below the Sentencing Guidelines range established by

the district court.   In accordance with Anders v. California, 386 U.S. 738 (1967),

Labastida’s counsel has filed a brief certifying that there are no meritorious grounds for

appeal but questioning whether Labastida’s plea was knowing and voluntary. Labastida

filed a pro se brief, repeating counsel’s argument and contending that the district court

erred in calculating his offense level, that his sentence is substantively unreasonable, and

that his plea counsel was ineffective. We affirm.

       Defense counsel and Labastida both question whether Labastida’s plea was

knowing and voluntary, given that Labastida speaks little English and did not have a

written, translated copy of his indictment or plea agreement. To be constitutionally valid,

a plea must “be the voluntary expression of [a defendant’s] own choice.” Brady v.

United States, 397 U.S. 742, 748 (1970). A defendant must enter a plea “knowingly and

intelligently, with sufficient awareness of the relevant circumstances and likely

consequences.” United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (internal

quotation marks omitted).      When determining whether a defendant entered a plea

knowingly and voluntarily, we “look to the totality of the circumstances surrounding it,

granting the defendant’s solemn declaration of guilt a presumption of truthfulness.” Id.

(alterations and internal quotation marks omitted).

                                             2
       At the plea hearing, where Labastida had the aid of an interpreter, the district court

reviewed the plea agreement, and Labastida stated that he agreed to its provisions.

Labastida also stated that he communicated with his attorney in Spanish and that his

attorney read the indictment and plea agreement to him in Spanish and answered all of

his questions. Accordingly, we conclude that the absence of a written translation does

not render Labastida’s plea constitutionally invalid.

       Turning to the grounds for appeal raised in the pro se brief, Labastida argues that

the district court erred in its calculation of his criminal history points and its related

determination that he did not qualify for a two-level reduction in offense level under U.S.

Sentencing Guidelines Manual § 2D1.1(b)(17) (2015). We have reviewed these claims

and conclude that the district court committed no error—plain or otherwise. See United

States v. Syms, 846 F.3d 230, 235 (4th Cir. 2017) (stating standard of review), cert.

denied, __ S. Ct. __, 2017 WL 1426479 (U.S. May 22, 2017) (No. 16-8790). Next,

although Labastida asserts that his sentence is substantively unreasonable, we conclude

that no evidence in the record rebuts the presumption of reasonableness accorded

Labastida’s below-Guidelines sentence. United States v. Louthian, 756 F.3d 295, 306

(4th Cir. 2014); see Gall v. United States, 552 U.S. 38, 41, 51 (2007) (discussing

appellate review of sentences). Finally, we decline to review on direct appeal Labastida’s

claims that his plea counsel provided ineffective assistance. See United States v. Faulls,

821 F.3d 502, 507 (4th Cir. 2016) (providing standard).

       In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious grounds for appeal. We therefore affirm the district court’s

                                             3
judgment. This court requires that counsel inform Labastida, in writing, of the right to

petition the Supreme Court of the United States for further review. If Labastida requests

that a petition be filed, but counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Labastida.

       We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                               AFFIRMED

                                             4


            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs December 11, 2002

             STATE OF TENNESSEE v. BARBI MICHELLE BROWN

                 Direct Appeal from the Circuit Court for Montgomery County
                         No. 40100306    John H. Gasaway, III, Judge

                        No. M2002-01497-CCA-R3-CD - Filed April 1, 2003

The defendant pled guilty to one count of especially aggravated robbery and one count of aggravated
burglary. The trial court sentenced the defendant to twenty years incarceration pursuant to a
negotiated plea agreement setting the maximum amount of time to be served at twenty years. The
defendant contends her sentence is excessive and the trial court misapplied enhancement factors (4),
(5), (6), and (10).1 We agree the trial court misapplied two enhancement factors, but the record
supports the imposition of a twenty-year sentence, which is the maximum allowed by her plea
agreement and the “presumptive sentence” provided by statute. We affirm the judgments from the
trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE , JJ., joined.

Gregory D. Smith, Clarksville, Tennessee (on appeal); Michael R. Jones, District Public Defender,
and Roger Nell, Assistant Public Defender (at trial and on appeal), for the appellant, Barbi Michelle
Brown.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

        1
            The 2000 amendment added present enhancement factor (1) and redesignated former (1) through (22) as
prese nt (2) through (23), respe ctively.
                                              OPINION

        On June 4, 2001, a Montogomery County Grand Jury indicted the defendant, Barbi Brown,
of conspiracy to commit especially aggravated robbery, especially aggravated robbery, aggravated
burglary, theft of property, and attempted first degree murder. The defendant pled guilty to
especially aggravated robbery and aggravated burglary, subject to a plea agreement which dismissed
all other charges and capped her sentence at twenty years. After the sentencing hearing, the trial
court sentenced the defendant to twenty years incarceration in the Tennessee Department of
Correction for her especially aggravated robbery conviction and five years incarceration for her
aggravated burglary conviction, to be served concurrently. The twenty-year sentence is the
maximum allowed under the plea agreement and the “presumptive sentence” provided by statute.
The defendant appeals claiming that her especially aggravated robbery sentence is excessive.

                                               Facts

        The record reflects that the defendant, Barbi Brown, along with Robert Downey and Marcus
Tramane Green conspired to break into the home of the victim, Charlie Rye, the defendant’s elderly
uncle. The defendant told Downey that the victim kept money in his home and that he would be an
“easy lick.” After Downey solicited the help of Green to commit the robbery, the defendant drove
Downey and Green to the victim’s home on the night of April 12, 2001. Downey and Green entered
the home of the victim, and Downey assaulted the victim with a heavy metal flashlight. Green took
money from the victim’s pants and Downey took a jar full of coins and a television. The defendant,
Downey, and Green drove away and divided approximately three thousand dollars ($3000) equally
among between themselves.

        The morning after the crime, the victim’s son found the victim in his home badly beaten,
bruised, and unconscious. Due to sustaining severe injuries, the victim was transported to Vanderbilt
Hospital in critical condition, where he received medical treatment for more than one month. The
record reflects the victim was sixty-six years old at the time of the incident and weighed a little over
one hundred pounds.

                                               Analysis

       The defendant argues that the trial court imposed an excessive sentence regarding her
especially aggravated robbery conviction, but does not challenge the five-year sentence for her
aggravated burglary conviction. At sentencing, the trial court made the following findings when
determining the defendant’s sentence:
       After weighing and considering all of the enhancement factors and the mitigating
       factors, since there are both types of factors, the Court is to start in the mid range of
       the Class A felony, which is 20 years, enhance - normally the Court would enhance
       and then reduce. The Court has to ask itself in this case whether or not after
       enhancing and reducing in the weighing process whether or not there would be any
       reason to reduce the crime - or to reduce the sentence below the 20 year ceiling that

                                                  -2-
       was fixed by the agreement, and the answer is no. She is sentenced to 20 years
       confinement at TDOC for especially aggravated robbery.

        This Court’s review of the sentences imposed is de novo with a presumption of correctness.
Tenn. Code Ann. § 40-35-401(d). A presumption in favor of the trial court is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with these principles, there is no presumption of correctness and our review is
de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The defendant bears the burden of
establishing that the sentence the trial court imposed was improper. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); State v. Boggs, 932 S.W.2d 467, 473 (Tenn. Crim. App. 1996). The defendant
contends that her sentence is excessive and claims that enhancement factors (4), (5), (6), and (10)
should not have been applied to determine the length of her sentence. We agree the trial court
misapplied one enhancement factor and review this appeal de novo without the presumption of
correctness.

        The defendant was convicted of especially aggravated robbery, a Class A felony. Tenn. Code
Ann. § 39-13-403. Especially aggravated robbery occurs where a robbery, as defined in Tennessee
Code Annotated section 39-13-403, is “accomplished with a deadly weapon; and where the victim
suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a)(1) and (2). The defendant was
sentenced as a Range I standard offender. The range of punishment for a Class A felony is “not less
than fifteen (15) years nor more than twenty-five (25) years.” Tenn. Code Ann. § 40-35-112(a)(1).
The presumptive sentence is the midpoint of the range if no enhancing or mitigating factors are
present. Tenn. Code Ann. § 40-35-210(c). If enhancing factors exist, the trial court must “enhance
the sentence within the range as appropriate for the enhancement factors.” Tenn. Code Ann. § 40-35-
210(e).

        If no enhancement or mitigating factors are to be considered for sentencing, the presumptive
sentence for especially aggravated robbery, a Class A felony, shall be the midpoint within the
applicable range. Tenn. Code Ann. § 40-35-210(c). The range of punishment for especially
aggravated robbery is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1). Therefore,
twenty years is the midpoint of the range for especially aggravated robbery. If enhancement or
mitigating factors exist, a trial court should enhance the sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann.
§ 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). As long as the trial court
complies with the purposes and principles set forth by the sentencing act and this determination is
supported by the record, the weight given to each factor is left to the discretion of the trial court.
State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000); see Tenn. Code Ann. § 40-35-210,
Sentencing Comm’n Comments. The weight afforded mitigating and enhancement factors is derived
from balancing relative degrees of culpability within the entire circumstances of the case. State v.
Boggs, 932 S.W.2d 475, 476.

                                                 -3-
        The defendant argues that the trial court misapplied enhancement factor (4) in determining
the length of her sentence. Tennessee Code Annotated section 40-35-114(4) allows for the
enhancement of a sentence if “the victim of the offense was particularly vulnerable because of age
or physical or mental disability . . . .” Enhancement factor (4) is inapplicable when a victim’s
vulnerability, because of age or physical or mental disability, is found irrelevant to the commission
of the offense. State v. Poole, 945 S.W.2d 93, 97 (Tenn. 1997). The defendant argues that this
factor was erroneously applied because there is no presumption of vulnerability attached to the
victim due to his age and weight. The record reflects that the sixty- six-year-old victim weighed
barely over one hundred pounds at the time of the crime and the defendant referred to the victim as
an “easy lick.” The record supports a finding that the defendant told her accomplices about the
victim as an easy target because of his vulnerability. We conclude the trial court did not err in
applying enhancement (4).

        With respect to enhancement factor (5), Tennessee Code Annotated section 40-35-114(5),
our supreme court has found that before this factor may be applied, the facts of the case must
“support a finding of ‘exceptional cruelty’ that ‘demonstrates a culpability distinct from and
appreciable greater than that incident to’ the crime.” State v. Poole, 945 S.W.2d 93, 98 (Tenn.
1997). If a trial court should apply enhancement factor (5), it should state what actions of the
defendant, apart from the elements of the offense, constituted exceptional cruelty. State v. Goodwin,
909 S.W.2d 35, 45 (Tenn. Crim. App. 1995). The trial court stated that enhancement factor (5) was
applicable because the defendant allowed the victim to be treated with exceptional cruelty.
Specifically, the trial court stated that the defendant did not stop, or at least abandon, the crime when
she knew that her accomplice planned to use a flashlight to beat the victim. From the record, it
appears as though the frail, elderly victim was beaten repeatedly, beyond what would have been
necessary to take money from his person and property from his home. In Poole, our supreme court
found enhancement factor (5) applicable, despite the fact the trial court made no findings to support
its application. Poole, 945 S.W.2d at 99. In Poole, this Court concluded enhancement factor (5)
was applicable by stating the following:
        This elderly woman was knocked unconscious by a blow to the head with a baseball
        bat. Even though the defendants knew that the victim lived alone, they left her lying
        unconscious and bleeding under such circumstances that it was unlikely that her
        condition would soon be discovered. In fact, the victim remained in such a condition
        all night and was discovered by family members the next day. Because of the delay
        in receiving medical treatment, the victim is extremely fortunate to have survived this
        attack.
Id. The incident described in Poole is almost identical to the facts in the instant case. For these
reasons, we conclude the trial court properly applied enhancement factor (5).

        The defendant argues that the trial court erred in finding that the personal injuries inflicted
on the victim were particularly great. See Tenn. Code Ann. § 40-35-114(6). The State concedes that
enhancement factor (6) may be inapplicable. We conclude that the trial court erroneously enhanced
the defendant’s sentence because the victim suffered serious bodily injury. An essential element of
especially aggravated robbery is serious bodily injury. Tenn. Code Ann. § 39-13-403(a)(2). “Proof

                                                  -4-
of serious bodily injury will always constitute proof of particularly great injury.” State v. Jones, 883
S.W.2d 597, 602 (Tenn 1997). Enhancement factor (6) is inapplicable because serious bodily injury
is inherent in a conviction for especially aggravated robbery.

         The defendant contends that the trial court misapplied enhancement factor (10) because this
factor is an essential element to the offense of especially aggravated robbery. Tennessee Code
Annotated section 40-35-114(10) is used to enhance a sentence if “the defendant had no hesitation
about committing a crime when the risk to human life was high.” The defendant pled guilty to
especially aggravated robbery, which includes the use of a deadly weapon as an essential element
of the offense. In this case, the defendant’s accomplice used a heavy metal flashlight to inflict
serious bodily injury upon the victim. When an offense is committed with a deadly weapon, it is
inherent within the offense that there is a risk to human life and the potential for injury is great. State
v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994). Because this factor is inherent in the offense
of especially aggravated robbery, we conclude the trial court misapplied enhancement factor (10).

        The defendant concedes that enhancement factors (1) and (2) were properly applied. We
agree that the record supports enhancement factor (1) because the defendant has a previous history
of using illegal drugs. Tenn. Code Ann. § 40-35-114(1). We agree that the record supports the
contention that the defendant was the leader in the commission of this offense involving her two
accomplices. See Tenn. Code Ann. § 40-35-114(2). The trial court agreed to the application of two
mitigating factors, (10) and (13). Using mitigating factor (10), the trial court found the defendant
assisted authorities in locating her accomplices. The trial court supported the application of
mitigating factor (13) by finding the defendant entered a guilty plea and avoided “the necessary time,
effort and expense associated with a trial.”

         Upon de novo review, we conclude that the trial court properly applied enhancement factors
(1), (2), (4), (5) and properly applied mitigating factors (10) and (13). However, we conclude the
trial court erred in applying enhancement factors (6) and (10). Despite the misapplication of two
enhancement factors, we conclude that the weight given to the remaining factors is sufficient to
support a twenty-year sentence. By statute, the trial court was required to begin the defendant’s
sentence determination at the midpoint of the range of twenty years. However, pursuant to her plea
agreement, twenty years was the maximum time she could receive. We conclude the trial court,
absent an agreement to the contrary, was well within its discretion to enhance the defendant’s
sentence above twenty years. The agreement in this case established a ceiling which the trial court
could not exceed, yet the enhancing factors embedded the sentence in the ceiling such that two
mitigating factors could not dislodge.

                                                   -5-
                                   Conclusion

Accordingly, we affirm the sentence imposed by the trial court.

                                             ___________________________________
                                              JOHN EVERETT WILLIAMS, JUDGE

                                       -6-


601 F.2d 596
U. S.v.Bell
No. 78-1265
United States Court of Appeals, Seventh Circuit
5/1/79

1
S.D.Ill.

AFFIRMED


669 S.E.2d 544 (2008)
SELLERS
v.
The STATE.
No. A08A1005.
Court of Appeals of Georgia.
November 14, 2008.
*545 Earle Johnston Duncan III, for appellant.
John Thomas Durden, Dist. Atty., Cris Edward Schneider, Ronald J. Poirier, Asst. Dist. Attys., for appellee.
BARNES, Chief Judge.
Antonio Sellers appeals his conviction of armed robbery. He contends the verdict should be overturned because his trial counsel failed to assist him effectively to the extent required by the Sixth and Fourteenth Amendments, and the evidence was not sufficient. For the reasons stated below, we affirm Sellers' conviction.
Viewed in support of the verdict, the evidence shows that one night, two men dressed in black entered a motel in Richmond Hill and, while holding an employee of the motel at gunpoint, stole money from the cash register. Approximately five minutes before the *546 robbery, a fifteen-year-old girl entered the motel, asked the employee a question concerning room rates, and then left. The girl, a friend of the robbers, identified the two robbers as Sellers and an accomplice. After the robbery, the two men and the girl drove off in Sellers' car and later threw a duffel bag containing the clothes that they had worn during the robbery out of the window of the car at a highway exit ramp. Based upon information provided by the girl, some of the clothes were later discovered by a police detective at the highway interchange.
Sellers was convicted of armed robbery and sentenced to 15 years of confinement in prison. After Sellers moved for a new trial on the grounds that the verdict was against the weight of the evidence and that his counsel was ineffective, the trial court denied the motion.
1. Sellers argues that the verdict should be reversed because his defense counsel was ineffective. Sellers argues that his counsel's performance was deficient because counsel failed to meet adequately with him, failed to inform the jury of a prior sexual relationship between him and the teenage witness and raise the possibility that her testimony was the vindictive product of a "jilted lover," failed to have Sellers try on the boots submitted as evidence by the State, and failed to permit him to testify.
To establish an ineffective assistance of counsel claim, Sellers must show that the counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant must show that both prongs of the Strickland test are met. Id. Further, a strong presumption exists that the counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Head v. Hill, 277 Ga. 255, 266(VI), 587 S.E.2d 613 (2003). Ineffectiveness claims are mixed questions of law and fact. Id. We accept the trial court's findings of fact unless clearly erroneous and apply the law to the facts independently. Id. Here, because Sellers has failed to demonstrate that his counsel was ineffective, we need not consider the prejudice prong. Nelson v. State, 255 Ga.App. 315, 322-323, 565 S.E.2d 551 (2002).
(a) Sellers argues that his counsel's performance was deficient because she failed to meet with him adequately. He asserts that counsel met with him twice for a total time of less than one hour. However, during the hearing on his new trial motion, Sellers admitted to three meetings with his counsel, and his trial counsel testified she met with him at least four times. The trial court, the factfinder, found that Sellers met with his trial counsel four times before trial. Regardless, neither the total number of meetings nor the time spent in meetings are dispositive, as each case must be judged according to its own circumstances and complexity. Hand v. State, 205 Ga.App. 467, 469(2), 422 S.E.2d 316 (1992). Sellers met with his counsel on multiple occasions and discussed the possibility of a plea bargain, the nature of the evidence, the range of possible sentences, and whether to testify himself. Accordingly, the trial court's finding that Sellers' trial counsel was not ineffective is not clearly erroneous, and must be affirmed.
(b) Sellers also argues that his counsel's performance was ineffective because she failed to bring to the jury's attention a prior sexual relationship between Sellers and the key witness for the State, the then-14-year-old girl. Counsel, Sellers argues, should have raised the possibility that, because of their previous sexual relationship, the girl's testimony was tainted, which he describes as the "defense of a jilted or scorned lover."
To prevail on this claim, Sellers must show that defense counsel's decision to forsake the "jilted or scorned lover defense" was a tactic that "[was] so patently unreasonable that no competent attorney would have chosen [it]." (Citation and footnote omitted). Terrell v. State, 276 Ga.App. 102, 104(2), 622 S.E.2d 434 (2005). Here, the defense counsel's tactical decision appears quite reasonable in light of the record and does not approach the requirement that it be "patently unreasonable."
The record shows that trial counsel argued at trial that the girl was an accessory to the *547 crime and only testified against Sellers to avoid facing charges for her role in the robbery. At the new trial hearing, trial counsel testified that she thought discussing the previous sexual relationship between Sellers, who was married and in his late 20s, and the witness, who was 14 during their liaison, was a bad strategy because doing so could expose Sellers to statutory rape charges and negatively affect the jury's assessment of his character. This strategy cannot be said to be patently unreasonable.
(c) Sellers argues that his trial counsel was also ineffective for failing to conduct an evidence-related demonstration. Sellers asserts that his trial counsel should have had him try on the size ten boots in evidence to demonstrate that they would not fit because he wore a size seven. Trial counsel stated at the new trial hearing that she did not want Sellers to try on the boots during the trial because doing so would have called the jury's attention to the fact that Sellers was wearing exactly the same type of boots, black Timberlands. Further, not all of the robbers' clothing was recovered, and the boots could have belonged to his accomplice. Additionally, the boots were too large, not too small, and thus would still fit on Seller's feet. Finally, because Sellers could not make such a demonstration without first testifying under oath, he would have had to take the stand. State v. Battaglia, 221 Ga.App. 283, 284-285(1), 470 S.E.2d 755 (1996). Such a demonstration would have been inconsistent with the defense strategy not to expose Sellers to cross-examination by the State. Accordingly, the trial court did not err in concluding that trial counsel was not ineffective for this reason.
(d) Sellers claims that his trial counsel was ineffective for failing to discuss or "allow" him the opportunity to testify. Counsel testified that she discussed with Sellers whether to testify on his own behalf and recommended that he not do so because his prior armed robbery conviction which had been suppressed might come to the jury's attention. She recalled that the trial court advised him about his right to testify or not, although that colloquy might not have been recorded. Therefore, the trial court decision that Sellers' defense counsel was not ineffective was not clearly erroneous.
2. Sellers argues that the State failed to prove his guilt beyond a reasonable doubt because insufficient corroborating evidence was presented to support the testimony of an accomplice and because inconsistencies existed in the descriptions given of the robbers. Under Georgia law,
[t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason.
OCGA § 24-4-8.
Even accepting arguendo that the teenage girl was Seller's accomplice, she was not the State's only witness. The rule that a conviction may not be based upon the uncorroborated evidence of an accomplice applies only when the accomplice is the sole witness upon whose testimony the State relies. Willingham v. State, 242 Ga.App. 472, 473, 530 S.E.2d 224 (2000). Here, the State also relied upon the testimony of the motel clerk who provided a description of the robbers, their attire, and the time and details of the robbery. Further, the State presented physical evidencethe clothingthat tied Sellers to the robbery. Accordingly, the trial court did not err in concluding that sufficient corroborating evidence supported Seller's conviction.
Sellers also argues that inconsistencies relating to the descriptions of the clothing worn over the robbers' heads and faces alternatively as "stockings," "panty-hose," and "doo-rags" and the variance between his height and the robbers' render the guilty inconsistent with the weight of the evidence presented at trial. The trial court rejected this argument, and we affirm.
When evaluating the sufficiency of evidence, the proper standard of review is whether a rational trier of fact could have *548 found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We review the evidence in the light most favorable to the verdict, giving deference to the jury's determination as to the proper weight and credibility to be given the evidence. Dean v. State, 273 Ga. 806, 807(1), 546 S.E.2d 499 (2001). It is the function of the jury, not this Court, to assess the credibility of the witnesses, to resolve any conflicting evidence, and to determine the facts. Butler v. State, 273 Ga. 380, 382(1), 541 S.E.2d 653 (2001). Accordingly, we affirm the trial court's decision and finds that any rational trier of fact could have found Sellers guilty beyond a reasonable doubt based upon this evidence.
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur.


27 F.3d 1186
40 Fed. R. Evid. Serv. 1405
UNITED STATES of America, Plaintiff-Appellee,v.Timothy Moses JOHNSON, Defendant-Appellant.
No. 93-5071.
United States Court of Appeals,Sixth Circuit.
Argued Sept. 28, 1993.Decided July 12, 1994.

Daniel A. Clancy, U.S. Atty., Joseph C. Murphy, Jr., Asst. U.S. Atty.  (briefed), Christopher E. Cotten, Asst. U.S. Atty.  (argued) Memphis, TN, for plaintiff-appellee.
Doris A. Randle-Holt (argued and briefed), Memphis, TN, for defendant-appellant.
Before:  KEITH, NELSON, and RYAN, Circuit Judges.
RYAN, Circuit Judge, delivered the opinion of the court, in which KEITH, Circuit Judge, joined.  DAVID A. NELSON, Circuit Judge (pp. 1194-96), delivered a separate concurring opinion.
RYAN, Circuit Judge.

1
When a specific intent is an element of a criminal charge, is intent "in issue" such that the prosecution may introduce evidence of other acts of misconduct by the defendant, under Fed.R.Evid. 404(b), regardless of the crime or the defense asserted?   This is the question presented in Timothy Moses Johnson's appeal from his conviction for possession of twenty-five grams of cocaine base with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1).  Johnson contends that the district court erred in admitting, under Rule 404(b), evidence of two prior narcotics sales to a confidential informant.  We affirm.

I.

2
On February 21, 1992, Shelby County, Tennessee sheriff's officers set up a surveillance of a street corner in Memphis, Tennessee, to monitor a drug deal previously arranged by a confidential informant.  The officers saw defendant Johnson arrive in a car and walk down the street to a utility pole where he paused, bent over, and moved a concrete block.  Johnson then walked across the street to the car in which the confidential informant was seated along with Sammy Jones, an undercover police officer.  Johnson told the confidential informant and Jones that he had the drugs and asked if the two men had the money.

3
The confidential informant got out of the car and walked with Johnson to the utility pole.  Johnson bent down, moved an object, and pointed to something.  Johnson then asked the confidential informant if he was a police officer, if he was wearing a wire, and if he had the money.  The confidential informant returned to the car and told Jones that Johnson had the drugs.  At that point, a "take down" signal was given, and the officers arrested Johnson as he attempted to run from the scene.  An officer then went to the utility pole and found four bags containing a rock-like substance underneath several pieces of concrete.  The substance was later determined to be twenty-five grams of cocaine base.

4
Before trial, the government informed the district court of its intention to introduce evidence that Johnson had made two other drug sales less than a month earlier.  The government argued that evidence of those sales was admissible under Rule 404(b) because "the 404(b) acts go to preparation, plan, motive, intent, all those in this case."   The defendant objected, but the district court overruled the objection.

5
At trial, the confidential informant, testifying concerning the prior drug buys, stated that he bought five grams of cocaine base from Johnson in the first of the prior transactions and twelve grams in the second transaction, two days later.  Immediately following the confidential informant's testimony, the district court gave the following limiting instruction:

6
Ladies and gentlemen of the jury, I will give you detailed instructions later, but I will tell you that any proof as to events that are not alleged in the indictment, and I think as to this [confidential informant] we did have some testimony regarding dates and events unrelated to the indictment, should--may be weighed in some parts in the case but may not--but are not proof of the allegations as to the indictment.  In other words, if it was an event that preceded it, it was another event, it may be admissible for some purpose, perhaps to show motive or some other relevant activity, but it is not proof and the government still has to prove beyond a reasonable doubt that the events alleged in the indictment occurred.  I will give a more detailed instruction when I give you the final instructions, but I think this is an appropriate time to remind you to listen for that instruction during the final instruction to the jury.

7
(Emphasis added.)

8
Johnson testified and denied possessing any drugs on February 21, 1992.  On cross-examination, the government asked Johnson about the prior drug sales.  The defendant objected.  The court overruled the objection and gave a second instruction to the jury:

9
Ladies and gentlemen of the jury, proof of what happened or may have happened on a date other than the date in the indictment is not proof as to what happened on the date of the indictment.  Now, it may be proof as to method of operations, but it is not proof of what happened on that date.  So you may only consider it for a limited purpose.  It does not prove the events of February the 21st which are the subject of the indictment.  I will give you a more detailed instruction at the end of the case.

10
(Emphasis added.)

11
At the close of all proofs, the court gave a third instruction to the jury:

12
You cannot consider this testimony as evidence that the defendant committed the crime that he is on trial for now.  Instead, you can only consider it for deciding whether the defendant had the necessary intent to commit the crime charged or as evidence of preparation, plan and knowledge in the commission of the crime charged.

13
(Emphasis added.)

14
The jury returned a verdict of guilty on May 12, 1992.  The district court then sentenced Johnson to 262 months in prison.  Johnson now appeals, alleging that the evidence of the two prior drug sales was inadmissible under Rule 404(b), and even if admissible for one of the purposes named in Rule 404(b), or some other purpose, should nonetheless have been excluded under Fed.R.Evid. 403 as more substantially prejudicial than probative.

II.

15
We review the district court's admission of Rule 404(b) prior acts evidence under the three step analysis we announced in United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992)(en banc ).  First, we review for clear error the district court's factual determination that a prior act occurred.  Second, we review de novo whether the district court made "the correct legal determination" that the evidence was admissible for a legitimate purpose.  Id. at 1262.   And third, we review for abuse of discretion the district court's determination that the "other acts" evidence is more probative than prejudicial.  Id.

Rule 404(b) provides that:

16
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....

17
In ruling on the admissibility of evidence submitted under Rule 404(b), the district court must determine whether one of the factors justifying the admission of "other acts" evidence is material, that is, "in issue," in the case, and if so, whether the "other acts" evidence is probative of such factors.  The court must also determine whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect.  Fed.R.Evid. 403;  United States v. Acosta-Cazares, 878 F.2d 945, 948-49 (6th Cir.)  (per curiam ), cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989).

A.

18
The government argues that Johnson's past drug sales were relevant to show his intent to distribute cocaine on February 21, 1992.  The Supreme Court held in Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988), that "[t]he threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character."   Thus, before 404(b) evidence may be admitted as probative of the defendant's intent, intent must be a material issue in the case.  See United States v. Bakke, 942 F.2d 977, 982 (6th Cir.1991);  United States v. Zelinka, 862 F.2d 92, 98 (6th Cir.1988).

19
Of course, the difficulty is in determining when intent is a "material issue" for purposes of Rule 404(b) admissibility.  Is intent always a "material issue" within the meaning of Rule 404(b), as the government argues, when a defendant is charged with a specific intent crime like possession of cocaine with intent to distribute?   The answer varies from circuit to circuit.  At least one circuit holds that where intent (not even specific intent) is an element of the crime charged, evidence of other acts tending to establish intent is admissible.  See, e.g., United States v. Rivera-Sola, 713 F.2d 866, 871 (1st Cir.1983).  Several other circuits hold that where specific intent is an element of the crime charged, intent is always in issue regardless of whether the defendant has made it an issue.  See, e.g., United States v. Suntar Roofing, Inc., 897 F.2d 469, 479-80 (10th Cir.1990);  United States v. Weddell, 890 F.2d 106, 107-08 (8th Cir.1989);  United States v. Mazzanti, 888 F.2d 1165, 1171 (7th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2167, 109 L.Ed.2d 497 (1990);  United States v. Williams, 816 F.2d 1527, 1531 (11th Cir.1987).  Other circuits, however, recognize a distinction between cases in which a defendant claims that he did not do the charged act at all, and then makes no issue of intent, and those in which the defense theory is that the defendant acted mistakenly or innocently, with only the latter raising a genuine issue of intent for Rule 404(b) purposes.  In these circuits, the materiality of intent depends, not on the statutory definition of the offense, but on the facts of the case and the nature of the defense asserted.  Simply put, these circuits reason that a defendant's denial of participation in a crime takes the "issue" of intent out of the case with the result that it cannot be a material issue in dispute.  See, e.g., United States v. Watson, 894 F.2d 1345, 1348 (D.C.Cir.1990);  United States v. Colon, 880 F.2d 650, 656-57 (2d Cir.1989);  United States v. Walton, 602 F.2d 1176, 1180-81 (4th Cir.1979);  United States v. Powell, 587 F.2d 443, 448 (9th Cir.1978);  United States v. Silva, 580 F.2d 144, 148 (5th Cir.1978).

20
The seminal case in our circuit addressing this issue is United States v. Ring, 513 F.2d 1001 (6th Cir.1975).  There, we adopted the rule that other acts evidence is not admissible to prove intent unless the defendant places intent in issue or intent is not inferable from proof of the criminal act itself.  Ring was decided prior to the adoption of the Federal Rules of Evidence, but Rule 404(b), of course, merely codified the common law.  Judge McCree wrote in Ring:

21
The dispositive issue, in our view, is this:  May the "intent" exception be invoked by the prosecution to permit admission of evidence of an accused's prior misconduct where the requisite criminal intent would normally be inferred from the criminal act, if proven, ... and where, at the same time, the defendant has not asserted the defense of an innocent state of mind?   We conclude it may not.

22
Certainly, intent is in issue whenever it cannot readily be inferred from proof of the criminal act charged....

23
....

24
A different case would be presented if the defendant had raised the issue of intent by pleading that the act, if done, was done innocently, by mistake or accident....  No such defense was raised here, however, and we find pertinent the observations of Lord Sumner in Thompson v. The King, [1918] App.C. 221, 232, cited in McCormick, [Evidence Sec. 157, p. 331 n. 24 (1954) ]:

25
"Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant.  The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose.  The prosecution cannot credit the accused with fancy defenses in order to rebut them at the outset with some damning piece of prejudice."

26
Id. at 1007-08.   In Ring, this circuit squarely rejected the rule that would allow the government to introduce other acts evidence simply to prove mens rea.  Id. We recognize, as Judge McCree explained in Ring, that such an approach would emasculate Rule 404(b)'s general prohibition on character evidence and would permit the prosecution to impress the jury with highly prejudicial evidence of an accused's prior misconduct on the ground that intent was an element of the crime charged.  See Edward J. Imwinkelried, The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea:  The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575 (1990).

27
In subsequent cases, we have followed the rule set out in Ring.  In United States v. Rodriguez, 882 F.2d 1059 (6th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990), and United States v. Hamilton, 684 F.2d 380 (6th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 312, 74 L.Ed.2d 291 (1982), we held that evidence of prior crimes is admissible when specific intent is an element of the crime charged even though lack of criminal intent was not raised as a defense.  In United States v. Schaffner, 771 F.2d 149, 153 (6th Cir.1985), we concluded that because intent could be inferred from the crime charged and the defendant "did not assert a lack of intent as part of his defense," intent was not in issue in that case.  Likewise, in United States v. Johnson, 697 F.2d 735 (6th Cir.1983), we held:

28
[T]he mere fact that intent is a formal element of the government's case does not, in all circumstances, justify admission of prior act evidence.  For example, we have held that where intent is a formal element of the government's case, but criminal intent can properly be inferred from the commission of the act itself, Rule 404(b)'s intent exception may not justify admission of the prior act evidence.

29
Id. at 738-39.

30
We recognize that there is a class of cases in which intent is in issue precisely because a specific intent, separate and apart from underlying prohibited conduct, is made an element of the crime charged.  These are cases in which the government must prove that the defendant committed the prohibited act and did so with a specific intent.  Such offenses might include assault with intent to rob, breaking and entering with intent to commit arson, or, as in this case, possession of cocaine with intent to distribute.  Here, the government was required to prove beyond a reasonable doubt both that the defendant possessed the cocaine and that he did so with intent to distribute.  In prosecuting specific intent crimes, prior acts evidence may often be the only method of proving intent.  Ring, 513 F.2d at 1007-08.   Thus, where the crime charged is one requiring specific intent, the prosecutor may use 404(b) evidence to prove that the defendant acted with the specific intent notwithstanding any defense the defendant might raise.

31
The rule might be stated as follows:  where there is thrust upon the government, either by virtue of the defense raised by the defendant or by virtue of the elements of the crime charged, the affirmative duty to prove that the underlying prohibited act was done with a specific criminal intent, other acts evidence may be introduced under Rule 404(b).

32
That is not to say that the other acts evidence is automatically admissible in such cases.  There remains the very important duty in the trial court to determine whether such evidence, in the context of a given case, is more substantially prejudicial than probative.  Fed.R.Evid. 403.  And it is not to say that there may not be other circumstances in which uncharged misconduct evidence is admissible to prove intent.  We have no occasion today to examine hypothetical cases not before us or to muse in dicta about the admissibility of such evidence in cases in which a general rather than a specific intent must be proved.  The rule we have reaffirmed is narrowly stated, purposely so, to address only specific intent crimes of the type with which the defendant was charged here and not the whole range of crimes involving criminal states of mind.

33
In this case, Johnson pled not guilty and put the government to its proof.  He did not admit that he possessed the cocaine, nor did he allege that he possessed cocaine with some intent other than to distribute.  See, e.g., United States v. Robison, 904 F.2d 365, 368 (6th Cir.), cert. denied, 498 U.S. 946, 111 S.Ct. 360, 112 L.Ed.2d 323 (1990).  Rather, Johnson denied possession of cocaine altogether.  It is not entirely clear whether, by reason of his counsel's opening statement to the jury, Johnson placed in issue the intent to distribute component of the offense with which he is charged.  But regardless of Johnson's defense, since the government was obligated to prove not only that Johnson possessed the cocaine, but that he did so with the specific intent of distributing it, the government's evidence of other similar acts of possession with intent to distribute was admissible subject to the court's duty to weigh the probative value of the evidence against its prejudicial effect.

B.

34
When jurors hear that a defendant has on earlier occasions committed essentially the same crime as that for which he is on trial, the information unquestionably has a powerful and prejudicial impact.  That, of course, is why the prosecution uses such evidence whenever it can.  When prior acts evidence is introduced, regardless of the stated purpose, the likelihood is very great that the jurors will use the evidence precisely for the purpose it may not be considered;  to suggest that the defendant is a bad person, a convicted criminal, and that if he "did it before he probably did it again."   That is why the trial court's duty is to apply Rule 404(b) correctly and, before admitting such evidence, to decide carefully whether it will be more substantially prejudicial than probative.  A legitimate component of that weighing process is the trial court's informed judgment whether, despite the "technical" admissibility of the other acts evidence, the jurors are more likely than not to use the evidence for the very purpose for which the first sentence of the rule states that it may not be used.  And when the trial court's final decision is made, the balancing having been done, and the jurors are permitted to hear of the defendant's prior misconduct, it is important that the jurors then be clearly, simply, and correctly instructed concerning the narrow and limited purpose for which the evidence may be considered.  That was not done in this case.

35
Although the balancing of probative value and substantial prejudice may be "subsumed in the court's ruling admitting the evidence," Acosta-Cazares, 878 F.2d at 950, it is because prior acts evidence carries with it such a high risk of confusion and misuse that there is a heightened need for the careful application of the principles set out in Rule 403.  In this case, the district court did not make an explicit finding on the probative value versus the prejudicial effect of the evidence.  The court gave the jury three separate and inconsistent instructions on the purposes for which the prior acts could be considered.  The court first instructed the jury that the prior bad acts evidence was "admissible for some purpose, perhaps to show motive or some other relevant activity";  it later instructed that the evidence was admissible as "proof as to method of operations";  and still later stated that the evidence was admissible to show "intent to commit the crime charged or as evidence of preparation, plan and knowledge in the commission of the crime charged."

36
The first instruction, that the evidence was admissible "to show motive," is mistaken.  Motive was not in issue in this case.  It was not an element of the crime charged, and the defendant did not claim, for example, that he committed the charged offense for some innocent purpose.

37
The second instruction, that the evidence could be used as proof of "method of operations," is also mistaken.  In cases in which the identity of the perpetrator of the crime charged is in issue, evidence that the defendant committed other acts utilizing the same modus operandi or method of operation as was employed by the perpetrator of the crime charged, is admissible as tending to prove that the defendant committed the crime charged.  United States v. Fountain, 2 F.3d 656, 668 (6th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 608, 126 L.Ed.2d 573 (1993);  see also Glen Weissenberger, Federal Evidence Sec. 404.17 at 92 (1987).  The theory is that if the method of operation employed in all of the crimes is essentially identical and sufficiently unique, the method can be said to be the "signature" of the defendant, thus tending to prove his identity as the perpetrator of the crime charged.

38
But here, there was no dispute about the identity of the perpetrator of the crime charged.  Johnson did not claim, for example, that someone else possessed the twenty-five grams of cocaine base with intent to distribute it and that his arrest was the result of mistaken identity.  His defense was that no one was seen to have possessed the narcotics when he was arrested and that, in all events, he was an innocent passerby.  Even if identity were in issue, there is nothing so unusual or so unique in the manner in which the "other acts" and the charged offense were committed as to suggest the "signature" of a single actor--Johnson.

39
The third instruction given to the jury was that the evidence was admissible to show "intent to commit the crime charged or as evidence of preparation, plan and knowledge" is likewise in error.  Knowledge is a "material issue" when the defendant claims he was unaware that he was committing a criminal act.  2 Weinstein's Evidence p 404, 404-79 to 404-81 (1993).  In this case, knowledge was not at issue because Johnson did not argue, for example, that he possessed the drugs by mistake or inadvertence, or that he was so intoxicated as to be unaware of what he was doing.  Rather, he denied possessing the drugs at all.  Likewise preparation or plan were not in issue.  There was no suggestion, for example, in the government's theory of the case that the other acts were preliminary steps necessary to the success of a greater, overall criminal enterprise.

40
The cases in this and other circuits reveal a remarkable willingness in trial courts to readily admit, and in appellate courts to readily approve, other acts evidence without any clear articulation of the specific rationale justifying its admission.  To apply Rule 404(b) fairly, the district court must carefully identify, in its instructions to the jury, the specific factor named in the rule that is relied upon to justify admission of the other acts evidence, explain why that factor is material, and warn the jurors against using the evidence to draw the inferences expressly forbidden in the first sentence of Rule 404(b).

41
We are troubled by the instructions given in this case.  It is likely that the three substantially incorrect and thoroughly contradictory instructions on the permissible use of the evidence of the prior drug sales confused the jurors and even unwittingly encouraged them to use the evidence for the purpose expressly forbidden in the rule.  Nevertheless, because:  1) the district court's instructions did ultimately include a reference to the proper purpose for which prior acts evidence may be used;  2) the defendant's counsel registered no objection to the instruction given once the evidence was ruled admissible;  and 3) the evidence of the defendant's guilt is overwhelming, we conclude that the imprecise instructions did not contaminate the verdict, and thus did not result in a miscarriage of justice.

III.

42
For the foregoing reasons, we AFFIRM the judgment of conviction.

43
DAVID A. NELSON, Circuit Judge, concurring.

44
I concur in the judgment and in most of the opinion Judge Ryan has written for the court.  I am not particularly troubled by anything the trial court did here, however, and I write separately to explain why.

45
By way of background, it may be helpful to note that although defense counsel did, prior to opening statements, present an objection to the introduction of Rule 404(b) evidence, the sole point of her objection was that the prosecutor had not previously told her the purpose for which he intended to offer such evidence.  The court then inquired what the purpose was, and the prosecutor responded that the evidence would be offered to show "[i]ntent, motive, lack of mistake, preparation, plan, all those things."   Defendant Johnson's lawyer offered no rejoinder to this, and the court ultimately ruled "that based on what I have at this point, the evidence would be admissible ... under 404(b)...."  (Emphasis supplied.)   The defense was clearly not precluded from raising further objections when the prosecutor attempted to develop the evidence during the trial itself--at which time the court could be expected to have a fuller understanding of the factual setting--but no such objection was made at any time during the presentation of the prosecution's case-in-chief.1

46
In her opening statement to the jury, defense counsel emphasized that the government had the burden of proving both the element of possession and the element of intent to distribute:

47
"Is there credible, believable proof beyond a reasonable doubt that he knowingly and willfully ever possessed it, number one.  Number two, did he possess it with the intent to distribute it to someone else, and ... once they proved that he possessed it, was that substance crack cocaine?"

48
Defense counsel went on to tell the jury that "we don't dispute that the substance the officers found ... is crack cocaine."   She explained, however, that both the element of possession and the element of intent remained very much in issue:  "Mr. Johnson does dispute that he ever possessed it, that he ever possessed cocaine with the intent to distribute."  (Emphasis supplied.)

49
When defendant Johnson took the stand, he denied having possessed the crack cocaine at all.  In response to questions posed by his lawyer, however, he also testified that his intent in meeting with the confidential informant on the day in question was to take the informant's money without turning over any drugs.  Johnson claimed to have been leading the confidential informant to believe that Johnson would give him dope in exchange for dollars, but the testimony was that this was not what he actually intended to do.  "What were you going to do?" the defendant's lawyer asked.

50
"A. I was going to make the block and leave with the money.

51
Q. Were you going to give him anything for his money?

52
A. No, I wasn't.

53
Q. Did you think he was going to call the police on you?

54
A. I know he couldn't call the police.

55
Q. Why?

56
A.  What could he tell them?   What would he tell them, fixing to buy some dope?"

57
If the jury had believed this testimony, it would have been obligated to acquit the defendant of the possession-with-intent-to-distribute charge even if it also believed that the trap Johnson claimed to have been setting for the confidential informant was actually baited with drugs.

58
Against this background I turn to the first of the limiting instructions in question, an instruction given at the request of defense counsel after the confidential informant had testified (without objection) about the prior drug sales.  In telling the jury that the evidence did not constitute proof of the allegations in the indictment but "may be admissible for some other purpose, perhaps to show motive or some other relevant activity," the court was making a statement that strikes me as accurate as far as it went.  It seemed accurate to defense counsel as well, presumably, because she made no request for clarification or expansion of the instruction.

59
The second limiting instruction--also given at the request of defense counsel and also accepted by her without request for clarification or expansion--told the jury that although the evidence of prior acts did not constitute proof as to what happened on the date referred to in the indictment, "it may be proof as to method of operations...."  I am not sure that this was error.  If the defendant's modus operandi in the past had been to make delivery of drugs he had agreed to sell, rather than taking the customer's money and keeping the drugs himself, perhaps the jury was entitled to take this into consideration.  We need not decide the point, in my view, because if the instruction was erroneous at all, it was not plainly erroneous.  At most, in other words, it constituted the kind of error that would have had to be brought to the court's attention through a timely objection if anything were to be made of it on appeal.

60
The final prior-bad-acts instruction was included in a general charge worked out with the attorneys at the end of the case.  Stating that "I don't want the whole laundry list in there," the judge proposed telling the jury that "you can only consider [the prior-bad-acts evidence] in deciding whether the defendant had the necessary intent to commit the crime charged."  (Emphasis supplied.)   The prosecutor wanted the list expanded to include "preparation, plan and knowledge," and the judge decided that this would be appropriate.  Defense counsel affirmatively stated, at the end of the charge conference, that she had "[n]o objection" to what had been worked out.

61
The general charge--which instructed the jury, among other things, that "each of the essential elements of the offense" (both the element of possession and the element of intent to distribute) was in issue--conformed exactly to what had been agreed upon at the charge conference.  "[Y]ou can only consider [the prior-bad-acts evidence] for deciding whether the defendant had the necessary intent to commit the crime charged," the jury was told, "or as evidence of preparation, plan and knowledge in the commission of the crime charged."   When the court finished the delivery of its instructions to the jury, the defendant's lawyer and the prosecutor both stated that they had no objection to what the jury had been told.

62
Given all this, I feel quite confident in saying that the verdict was not contaminated in any way.

1
 After the prosecution had rested its case, Defendant Johnson elected to testify on his own behalf.  His lawyer objected to the prosecution's cross-examining him on his prior drug sales, but the objection was based on the ground that the cross-examination went beyond the scope of direct, and not on the ground that the evidence was inadmissible under Rule 404(b)


162 F.3d 1172
98 CJ C.A.R. 5661
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
David L. BURR, Plaintiff-Appellant,v.Bill D. ROBINSON, District Court Judge, Wyandote County,State of Kansas; Carol Bacon, District Court Judge, assignedto the Kansas Court of Appeals; P.J. Peirron, Judge of theKansas Court of Appeals; R.J. Lewis, Judge of the KansasCourt of Appeals; Richard Holmes, Chief Justice of theKansas Supreme Court; Kay McFarland, Justice of the KansasSupreme Court; Tyler Lockett, Justice of the Kansas SupremeCourt; Donald Allegrucci, Justice of the Kansas SupremeCourt; Fred Six, Justice of the Kansas Supreme Court; BobAbbott, Justice of the Kansas Supreme Court; Robert Davis,Justice of the Kansas Supreme Court, Defendants-Appellees.
No. 98-3028.
United States Court of Appeals, Tenth Circuit.
Oct. 30, 1998.

1
BALDOCK, EBEL, and MURPHY, JJ.

2
ORDER AND JUDGMENT*

3
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a); 10th Cir.R. 34.1.9.  The case is therefore ordered submitted without oral argument.

4
Plaintiff David L. Burr appeals the district court's order dismissing his 42 U.S.C. § 1983 complaint for lack of subject matter jurisdiction.  Following consideration of the parties' briefs and review of the record, we affirm.

5
On February 7, 1994, Mr. Burr filed a medical malpractice lawsuit in Kansas state court.  His case was dismissed as filed outside the applicable statute of limitations.  The Kansas Court of Appeals affirmed the dismissal decision, the Kansas Supreme Court denied review, and the United States Supreme Court denied certiorari.  Mr. Burr then filed this action in federal court under § 1983, alleging that all of the state court judges involved in his case violated his constitutional rights of due process and access to the courts.  Defendants moved for dismissal based on lack of jurisdiction, or in the alternative, failure to state a cognizable claim.  The district court granted defendants' motion based on lack of subject matter jurisdiction and dismissed Mr. Burr's complaint.

6
We review de novo the district court's determination that it lacked subject matter jurisdiction.  See Painter v. Shalala, 97 F.3d 1351, 1355 (10th Cir.1996).  It is well established that federal district courts generally do not have jurisdiction to review, reverse, or invalidate a final state-court decision.  See District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923).  The Rooker-Feldman doctrine bars "a party losing in state court ... from seeking what in substance would be appellate review of the state judgment in a United States District Court, based on the losing party's claim that the state judgment itself violates the loser's federal rights."  Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).  Under this rule, jurisdiction to review state-court decisions lies exclusively with superior state courts and, ultimately, the United States Supreme Court.  See Facio v. Jones, 929 F.2d 541, 543 (10th Cir.1991).  The Rooker-Feldman doctrine bars consideration not only of issues actually presented to and decided by a state court, but also bars consideration of constitutional claims that are " 'inextricably intertwined' with" issues ruled upon by a state court.  See id.  (quoting Feldman, 460 U.S. at 483-84 n. 16).

7
Here, Mr. Burr filed a medical malpractice lawsuit which the state court dismissed as filed outside the applicable statute of limitations.  Mr. Burr exhausted his appellate processes in the Kansas courts and in the United States Supreme Court, which is vested with exclusive jurisdiction to review a decision of the highest state court.  See Facio, 929 F.2d at 543.  It now appears that Mr. Burr seeks to have this court reverse the state court's judgment and declare the Supreme Court law applicable in this case unconstitutional.  This we decline to do.  In Facio, we held that "Feldman not only prohibited direct review of state judgments by lower federal courts, but it also prohibited those federal courts from issuing any declaratory relief that is 'inextricably intertwined' with the state court judgment."  Id. Here, as in Facio, unless Mr. Burr's state court dismissal is reversed, his interest in the constitutionality of the state's limitations statutes is "prospective and hypothetical in nature," and he lacks standing to assert his constitutional claims Id.  Therefore, Mr. Burr's request for declaratory relief is inextricably intertwined with his state court judgment, and, absent a showing of the probability of future injury, he cannot maintain his § 1983 action for declaratory relief.  See id. at 544.  The dismissal order against Mr. Burr is final, and any ruling that Kansas limitations statutes are unconstitutional would not reverse that judgment.  See id. at 545.

8
Mr. Burr has availed himself of every opportunity to argue his case to the state appellate courts and to the United States Supreme Court.  Thus, he has had all the process due him in this matter.  See id.  (proper avenue for review of state court judgments is state court and certiorari review by the United States Supreme Court); Anderson v. Colorado, 793 F.2d 262, 263 (10th Cir.1986) (where the state appellate process is available, "a litigant may not seek to reverse or modify the state court judgment by bringing a constitutional claim under 42 U.S.C. § 1983.").  Therefore, we conclude that the district court was correct in finding that, under the Rooker-Feldman doctrine, it lacked subject matter jurisdiction to consider Mr. Burr's § 1983 claims.  The judgment of the United States District Court for the District of Kansas is AFFIRMED.

*
 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


562 F.2d 42
Reese, Appeal of
No. 76-2626
United States Court of Appeals, Third Circuit
9/15/77

1
D.N.J.

AFFIRMED