Weinstock v Sanders (2016 NY Slip Op 07947)

Weinstock v Sanders

2016 NY Slip Op 07947

Decided on November 23, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 23, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
VALERIE BRATHWAITE NELSON, JJ.

2015-06926
 (Index No. 600288/15)

[*1]Sharon Beth Weinstock, appellant-respondent,
vPeter S. Sanders, respondent-appellant.

Zisholtz & Zisholtz, LLP, Mineola, NY (Richard C. Zisholtz of counsel), for appellant-respondent.
Sanders Litigation Associates, P.C., Port Washington, NY (Peter S. Sanders, pro se, of counsel), for respondent-appellant.

DECISION & ORDER
In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (J. Murphy, J.), entered June 30, 2015, which granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), and the defendant cross-appeals, as limited by his brief, from stated portions of the same order.
ORDERED that the cross appeal is dismissed, as the defendant is not aggrieved by the portions of the order cross-appealed from (see CPLR 5511); and it is further,
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff in this action, Sharon Beth Weinstock, was named as a defendant in an earlier action to extinguish two mortgages (hereinafter the mortgage action). Peter S. Sanders, the defendant in this action, was the attorney for the plaintiffs in the mortgage action. The summons with notice in the mortgage action stated that Weinstock and Joseph Greenblatt, another defendant in that action, had obtained one of the mortgages by fraud. Sanders alleged in an affirmation he submitted in the mortgage action that that mortgage was obtained through a fraud perpetuated by Greenblatt and another person who was not a defendant in the mortgage action, and some time after that mortgage closed, Greenblatt was incarcerated for operating a Ponzi scheme. Sanders also alleged that there had been an assignment of the subject mortgage bearing the name of "Sharon Beth Weinstock" as assignee.
While the mortgage action was still pending, Weinstock commenced this action against Sanders, alleging that she was defamed by the statement in the summons with notice and the allegations in Sanders' affirmation.
Sanders filed a pre-answer motion, inter alia, to dismiss the complaint pursuant to [*2]CPLR 3211(a)(7), and for the imposition of sanctions and attorneys' fees against Weinstock and her attorney, Gerald Zisholtz. Weinstock opposed the motion. The Supreme Court granted that branch of Sanders's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), holding that the mortgage action was a judicial proceeding to which absolute immunity attached. The court did not address that branch of Sanders's motion which sought the imposition of attorneys' fees and sanctions based on frivolous conduct.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87). The facts as alleged in the complaint are accepted as true, with the plaintiff accorded the benefit of every favorable inference (see id. at 87-88). The role of the court is to "determine only whether the facts as alleged fit within any cognizable legal theory" (id.; see Persaud v Everest Natl. Ins. Co., 142 AD3d 544). Therefore, a complaint is legally sufficient if the court determines that a plaintiff would be entitled to relief on any reasonable view of the facts stated (see Dee v Rakower, 112 AD3d 204, 208).
"To properly state a cause of action alleging defamation, a plaintiff must allege that, without privilege or authorization, and with fault as judged, at minimum, by a negligence standard, the defendant published to a third party a false statement"(El Jamal v Weil, 116 AD3d 732, 733-734; see Liberman v Gelstein, 80 NY2d 429, 435; Brady v Gaudelli, 137 AD3d 951, 951).
In the mortgage action, the Sanders affirmation did not allege that Weinstock was part of the alleged Ponzi scheme or that she committed a fraud. Although the summons with notice states that Weinstock and Greenblatt obtained one of the mortgages by fraud, this statement is accorded an absolute privilege.
Generally, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court are accorded an absolute privilege, as long as the statements may be considered in some way "pertinent" to the issue in the proceeding (Martirano v Frost, 25 NY2d 505, 507-508; see Front, Inc. v Khalil, 24 NY3d 713, 718; Segall v Sanders, 129 AD3d 819, 820; El Jamal v Weil, 116 AD3d at 733-734; Rabiea v Stein, 69 AD3d 700, 700). This privilege, or "immunity" (Toker v Pollak, 44 NY2d 211, 219), applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made (see Park Knoll Assoc. v Schmidt, 59 NY2d 205, 209; Rabiea v Stein, 69 AD3d at 700).
The test of pertinency to the litigation is extremely liberal, so as to embrace anything that may possibly or plausibly be relevant or pertinent (see Brady v Gaudelli, 137 AD3d at 952; Black v Green Harbour Homeowners' Assn., Inc., 19 AD3d 962, 963; Grasso v Mathew, 164 AD2d 476, 479). The purpose of the privilege is to allow the parties, witnesses, and attorneys in a litigation to communicate freely without fear of defamation litigation (see Martirano v Frost, 25 NY2d at 508-509).
Here, despite Weinstock's argument that the statements regarding the alleged Ponzi scheme were an unnecessary attempt to "embellish" the claim to discharge the mortgage, these allegations, which did not involve Weinstock, were necessary to complete the narrative that Sanders was making in the prior action. Indeed, these allegations explain why or how a mortgage could be assigned to Weinstock without Weinstock having any knowledge of it, or, as her attorney stated, how a mortgage could be assigned to Weinstock when she did not know Greenblatt or anybody else involved in the matter. The information as to Greenblatt's fraudulent conduct is clearly relevant and pertinent (see Brady v Gaudelli, 137 AD3d at 951, 952).
Therefore, the subject statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action. Accordingly, the Supreme Court properly granted that branch of Sanders's motion which was to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7]; Brady v Gaudelli, 137 AD3d at 952; El Jamal v Weil, 116 AD3d at 733-734; Rabiea v Stein, 69 AD3d at 700; Goldfeder v Weiss, 250 AD2d 731, 731).
Sanders's cross appeal, which relates to that branch of his motion seeking attorney's [*3]fees and sanctions for frivolous litigation and conduct pursuant to 22 NYCRR 130-1.1, 130-1.1a, 130-1.2, and 130-1.3., must be dismissed, as that branch of his motion remains pending and undecided (see Howe v Jeremiah, 62 AD3d 751, 752; Katz v Katz, 68 AD2d 536, 542).
BALKIN, J.P., DICKERSON, COHEN and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


530 F.3d 684 (2008)
UNITED STATES of America, Appellee,
v.
Rick D. CANTRELL, Appellant.
No. 07-2977.
United States Court of Appeals, Eighth Circuit.
Submitted: February 12, 2008.
Filed: June 23, 2008.
*687 Shane P. Cantin, Carver & Cantin, LLC, Springfield, MO, argued, for appellant.
Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.
Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
RILEY, Circuit Judge.
A jury convicted Rick D. Cantrell (Cantrell) of possessing methamphetamine with intent to distribute, conspiracy to manufacture methamphetamine, and possession of a firearm by a convicted felon and unlawful user of a controlled substance. The district court[1] imposed a sentence of 262 months imprisonment. Cantrell appeals his conviction and sentence, arguing the district court erred by (1) denying his two pretrial motions to suppress evidence;[2] (2) refusing to submit Cantrell's requested "mere presence" jury instruction; and (3) determining Cantrell was a career offender under United States Sentencing Guidelines (U.S.S.G.) § 4B1.1, because his 1988 Missouri state court conviction for second-degree burglary constituted a "crime of violence" under U.S.S.G. § 4B1.2. We affirm.

I. BACKGROUND
On October 8, 2004, several police officers drove to the Douglas County, Missouri home of Debra James (James) to serve arrest warrants on James and Cantrell. James had an outstanding federal warrant for her arrest, and Cantrell had an outstanding state warrant for his arrest. Officers had information from a confidential informant, who had provided reliable information in the past, that Cantrell was living at the James residence and was currently at the James residence. To access James's rural residence, officers had to cross a tract of land owned by James's father, Charles James. Approximately two years earlier, Charles James had given officers consent to enter onto his land to get to the James house if officers believed something illegal was going on. Charles James's consent was not limited to a specific time period, nor was the permission ever withdrawn. As officers drove down the long driveway leading to the James residence, they observed James in a white Oldsmobile that had been reported stolen. Officers had received information associating both James and Cantrell with the stolen vehicle. The officers asked James to step out of the vehicle, advising James she was under arrest on an outstanding federal warrant.
Deputy Ron Wallace (Deputy Wallace) advised James he also had an outstanding warrant for Cantrell's arrest. Deputy Wallace asked James if Cantrell was inside her home, and James informed the deputy that Cantrell was. Because Deputy Wallace had heard through various informants that Cantrell might be violent, he asked James if there were any weapons in her home. James advised there were weapons in her home. Deputy Wallace requested and received James's permission to enter the James residence to place Cantrell in custody. When Deputy Wallace and another officer knocked on the door, Cantrell answered. The officers advised Cantrell he was under arrest and took Cantrell into custody without incident.
*688 After arresting Cantrell, officers did a protective sweep of the James residence for their safety to make sure nobody else was in the house. Cantrell told the officers there was a marijuana cigarette in a Marlboro pack on the kitchen table. During the protective sweep, officers observed the marijuana cigarette, as well as a brown glass vial containing a substance that was later determined to be methamphetamine.
During a search of the Oldsmobile, incident to James's arrest, officers found pseudoephedrine pills, cut-off straws, two scales, several Ziploc-type baggies, glass smoking devices with what appeared to be methamphetamine residue, a small bag of marijuana, methamphetamine in both powder and liquid form, a razor blade, and several canisters inside a vinyl bag located on the vehicle's front seat.
Officers then asked James for consent to search her home, informing James they had found drugs and drug paraphernalia in the car and in her home. James consented to a search of her home.
Deputy Wallace never asked Cantrell for permission to search. According to Deputy Wallace, Cantrell never objected to the search. Before the search, Cantrell even asked Deputy Wallace to retrieve his wallet from inside the residence, telling Deputy Wallace the wallet was either on the kitchen counter or in the bedroom in Cantrell's bag of clothes. On the other hand, James testified Cantrell did object to the search, "yelling a lot of obscenities" and "saying you get a search warrant." Cantrell also said, "Everything in that house is mine."
In the kitchen area, officers found a gallon container of denatured alcohol, a gallon container of mineral spirits, and a gallon container of paint thinner. They found a syringe on the dining room table. In a bedroom that contained both men's and women's clothing, officers found a green nylon duffel bag partially protruding from underneath the bed, and a brown rifle case. The green duffel bag contained men's clothing and Cantrell's identification, as well as unused syringes, numerous plastic sealable bags, and several smaller bags. One of the smaller bags contained marijuana, and another contained a syringe filled with a brown liquid, a set of digital scales, and a flashlight. The green duffel bag also contained a salt-like crystal substance; several packs of pseudoephedrine pills; plastic tubing; razor blades; folded tinfoil; two lithium batteries that had been separated from their casing; and a plastic bottle of Vitablend, which is used for diluting methamphetamine. The brown case contained a Marlin .22 caliber rifle and a double-barreled shotgun. In a dresser drawer in the same bedroom, officers found two Hi-Standard .22 caliber pistols and an Iver Johnson .22 caliber Magnum pistol with ammunition. A jewelry box on the dresser contained a plastic bag with a white powder substance that tested positive for methamphetamine. Officers also found an electronic listening device underneath a partially opened window.
At the time of the search, Cantrell told officers everything in the house was his. Cantrell later signed a sworn affidavit in which he took responsibility for all the drugs and drug paraphernalia found in the James home and in the Oldsmobile James was driving when she was arrested. In the affidavit, Cantrell claimed he put the drugs and drug paraphernalia on the James property and in the vehicle without James's permission. Cantrell stipulated at trial that all five firearms had traveled across state lines in interstate commerce, and that on October 8, 2004, he had been convicted of a crime under the laws of the State of Missouri for which the maximum possible term of imprisonment was greater than one year.
*689 On November 17, 2004, Cantrell was charged in a four-count superseding indictment with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Count I); conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846 (Count II); possession of a firearm in furtherance of a drug offense, in violation of 18 U.S.C. § 924(c) (Count III); and possession of a firearm by a convicted felon and unlawful user of controlled substances, in violation of 18 U.S.C. § 922(g)(1) and (3) and § 924(a)(2) (Count IV). James filed a motion to suppress, which Cantrell joined. After a hearing on the motion, the magistrate recommended James's motion be denied. After the district court adopted the magistrate's report and recommendation and denied James's motion to dismiss, the magistrate issued a second report and recommendation, recommending the motion also be denied with respect to Cantrell. Cantrell then filed a supplemental motion to suppress, arguing James's consent to search her home was invalid because Cantrell had objected to the search. The magistrate recommended Cantrell's supplemental motion be denied as well, and the district court adopted both of the magistrate's reports and recommendations with respect to Cantrell.
On April 10, 2007, a jury found Cantrell guilty of the offenses charged in Counts I, II, and IV of the superseding indictment, and not guilty of the offense charged in Count III. At sentencing, the district court determined Cantrell was a career offender under U.S.S.G. § 4B1.1 because Cantrell's 1988 state court conviction for second-degree burglary constituted a "crime of violence" under U.S.S.G. § 4B1.2. The district court imposed a sentence of 262 months imprisonment under Counts I and II, and a concurrent 120-month sentence under Count IV.

II. DISCUSSION

A. Motions to Suppress
We review the district court's factual findings underlying its denial of a motion to suppress for clear error and its legal conclusions de novo. See United States v. Wright, 512 F.3d 466, 469 (8th Cir.2008) (citing United States v. Stevens, 439 F.3d 983, 987 (8th Cir.2006)). Cantrell argues the district court erred by refusing to suppress the evidence seized during the search of the James home for two reasons (1) the officers entered the James property without a search warrant and without a reasonable belief Cantrell was at the James residence; and (2) James's consent to search her home was invalid because Cantrell was a lawful co-occupant of the home who presented substantial and credible evidence he objected to the search. We address Cantrell's arguments in turn.

1. Initial Entry onto the James Property to Arrest Cantrell
Cantrell contends the evidence seized during the search of the James home should be suppressed because officers entered the James property with a warrant for Cantrell's arrest, but without a search warrant and without a reasonable belief Cantrell resided at or was currently at the James residence. "[P]olice officers do not need a search warrant to enter the home of the subject of an arrest warrant in order to effectuate the arrest." United States v. Powell, 379 F.3d 520, 523 (8th Cir.2004) (quoting United States v. Boyd, 180 F.3d 967, 977 (8th Cir.1999)). "An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Id. (citing Steagald v. United States, 451 U.S. 204, *690 221, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)). Officers may enter a third party's home to execute an arrest warrant if the officers "have a reasonable belief that the suspect resides at the [third party's home] and have reason to believe that the suspect is present at the time the warrant is executed." Id. (citations omitted). Otherwise, officers cannot "legally search for the subject of an arrest in the home of a third party" without a search warrant, unless exigent circumstances exist or officers have obtained the third party's consent. Id. (citing Steagald, 451 U.S. at 215-16, 101 S.Ct. 1642).
In Cantrell's case, the warrantless entry into the James home to arrest Cantrell did not violate his Fourth Amendment rights because: (1) officers had a reasonable belief Cantrell resided at the James home and Cantrell was inside the James home at the time the warrant was executed; and (2) officers obtained James's express consent to enter her home and arrest Cantrell. Officers learned from a confidential informant, who had provided reliable information in the past, that Cantrell resided at and was currently at the James home.[3] James confirmed the informant's tip, informing officers shortly after her arrest that Cantrell was currently inside her home. This information was more than sufficient to support the officers' reasonable belief Cantrell resided at the James home and was inside the home at the time officers executed the warrant. Even if officers had no reasonable basis for their belief Cantrell was inside the James home when they served the arrest warrant, James's consent provided an independent basis for officers to enter her home to arrest Cantrell. James's consent was unequivocal: Deputy Wallace requested permission to get Cantrell from the James residence to place Cantrell in custody, and James gave her permission. The officers were not required to obtain a search warrant before entering the James home and arresting Cantrell.
Upon Cantrell's arrest, a protective sweep like the one officers conducted here is "permissible without a search warrant or probable cause" when the officers' legitimate interest in assuring themselves the house in which the suspect has just been arrested is not harboring anyone who could pose a threat to officer safety "is `sufficient to outweigh the intrusion such procedures may entail.'" United States v. Cash, 378 F.3d 745, 747 (quoting Maryland v. Buie, 494 U.S. 325, 333-34, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). The level of suspicion required for such a protective sweep is "the same level of suspicion required for a stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)." Cash, 378 F.3d at 748. Such a protective sweep requires "`articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.'" Id. (quoting Buie, 494 U.S. at 334, 110 S.Ct. 1093). The circumstances of Cantrell's arrest  particularly James's acknowledgment there were weapons in the house  *691 warranted the officers' protective sweep of the James residence.
Cantrell completely fails to distinguish between the initial entry into the James home to effectuate his arrest; the protective sweep immediately following his arrest; and the subsequent full-scale search of the James home based on James's consent. When officers arrested Cantrell just inside the James residence front door, officers did not search the James home or seize any evidence. During the protective sweep immediately following Cantrell's arrest, officers apparently observed only two contraband items: a marijuana cigarette in a Marlboro pack on the kitchen table, and a brown vial containing a substance later determined to be methamphetamine. It was the subsequent full-scale search, conducted pursuant to James's express consent, that yielded the five firearms and the extensive evidence of methamphetamine manufacturing and distribution which Cantrell seeks to suppress. Cantrell does not argue the consent search was the "poisonous fruit" of the initial entry or the protective sweep, nor does Cantrell argue the initial entry or the protective sweep otherwise operated to invalidate James's consent. As discussed below, Cantrell merely argues James's consent was invalid because Cantrell was a lawful co-occupant who was present and objected to the search. Thus, even if the initial entry into the James residence or the protective sweep were somehow unlawful, Cantrell provides no basis to suppress the evidence seized in the subsequent consent search.[4]

2. Subsequent Consent Search of the James Home
Cantrell argues the search of the James home, conducted with James's express consent, violated his Fourth Amendment rights. Cantrell does not challenge the voluntary nature of James's consent or her authority over the premises. Instead, Cantrell contends James's consent to search was invalid because Cantrell was a lawful co-occupant of the home, and Cantrell presented substantial and credible evidence he objected to the search. To support his argument, Cantrell relies on Georgia v. Randolph, 547 U.S. 103, 120, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), where the Supreme Court held "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." See also United States v. Hudspeth, 518 F.3d 954, 958-61 (8th Cir.2008) (en banc).
In Randolph, the co-occupants were spouses with equal rights to the property. In Cantrell's case, the government contends it is unclear whether Randolph applies because "James, as the owner of the house, had a right to exclude or eject Cantrell at any time, since he was merely *692 an occasional overnight guest." Indeed, the record contains conflicting evidence as to the nature of Cantrell's authority over or interest, if any, in the property. We need not decide whether Cantrell was a "physically present resident" or whether the James residence constituted a "shared dwelling" as contemplated by Randolph because, even assuming Cantrell had a right to object to the search, the district court did not clearly err in finding Cantrell did not object to the search.
James testified Cantrell objected to the search, "yelling a lot of obscenities" and "saying you get a search warrant." In contrast, Deputy Wallace testified he never asked Cantrell for permission to search, and Cantrell never objected to the search. Deputy Wallace further testified that, at one point, Cantrell even asked Deputy Wallace to retrieve his wallet, which Cantrell left either on the kitchen counter or in the bedroom in a bag of clothes. The district court expressly found Deputy Wallace's testimony was credible and James's testimony that Cantrell "spontaneously and loudly disclaimed a grant of consent" was incredible. The district court also noted Cantrell's supposed vehement objection to the search was inconsistent with Cantrell's request that Deputy Wallace retrieve his wallet from the kitchen or bedroom. "A district court's determination as to the credibility of a witness is virtually unreviewable on appeal." Heath, 58 F.3d at 1275 (citations omitted). We find no basis to conclude the district court erred, much less clearly erred.

B. Cantrell's Request for a "Mere Presence" Instruction
Cantrell argues the district court erred by refusing to submit his requested "mere presence" jury instruction. We review the rejection of a defendant's proposed "mere presence" jury instruction for an abuse of discretion. See United States v. Jara, 474 F.3d 1018, 1022 (8th Cir.2007), United States v. Serrano-Lopez, 366 F.3d 628, 637 (8th Cir.2004). We will affirm if "the instructions given as a whole. . . fairly and adequately submitted the issues to the jury." United States v. Meads, 479 F.3d 598, 601 (8th Cir.2007) (quoting United States v. Johnson, 278 F.3d 749, 752 (8th Cir.2002)). "A [criminal] defendant is entitled to a theory of [the] defense instruction," such as a "mere presence" instruction, if the instruction "is timely requested, supported by the evidence, and correctly states the law." Id. (citing United States v. Claxton, 276 F.3d 420, 423 (8th Cir.2002)). However, "a defendant is not entitled to a particularly worded instruction where the instructions given by the trial judge adequately and correctly cover the substance of the requested instruction." United States v. Manning, 618 F.2d 45, 48 (8th Cir.1980) (citations omitted) (per curiam). A "mere presence" instruction is unnecessary where it "would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof." Serrano-Lopez, 366 F.3d at 637 (citations omitted).
Cantrell proposed the following instruction:
Mere presence or proximity to a firearm at the scene is not enough to support a finding that defendant knowingly possessed a firearm, unless you find beyond a reasonable doubt that the defendant knew that the firearms were present, and intended to exercise dominion and control over the firearms either directly or through others.
The district court rejected Cantrell's proposed instruction. The district court submitted an instruction which required the jury to find beyond a reasonable doubt Cantrell "knowingly possessed" one or *693 more of the five firearms found during the search of the James residence. The district court also submitted an instruction which defined the term "possession" as follows:
The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession.
A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.
A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.
Whenever the word "possession" has been used in these instructions it includes actual as well as constructive possession and also sole as well as joint possession.
The parties agree Cantrell's proposed instruction was timely requested and correctly stated the law. The government argues Cantrell's requested instruction was unsupported by the evidence.
We agree there was simply no evidence Cantrell was "merely present" when the guns were found. On the contrary, Cantrell's clothes and his identification were in the bedroom. The house contained methamphetamine and numerous items of methamphetamine paraphernalia, all of which Cantrell stipulated belonged to him. Cantrell told police shortly after he was arrested that everything in the house was his. Cantrell argues this statement referred only to the drug-related evidence in plain view, not to the hidden guns. Even assuming Cantrell's statement was not intended to claim ownership of the guns, the fact Cantrell claimed ownership of the numerous items relating to the manufacture and distribution of methamphetamine strongly refutes the notion Cantrell was "merely present" when police found the guns. Cantrell did not present any witnesses or other evidence to support giving his "mere presence" instruction. Thus, the district court did not abuse its discretion by refusing to submit Cantrell's "mere presence" instruction.[5]
Even if some basis existed for giving a "mere presence" instruction, the district court did not abuse its discretion by rejecting Cantrell's instruction because the jury was correctly instructed on the burden of proof, the definition of "possession," and the requirement that the government prove beyond a reasonable doubt Cantrell "knowingly" possessed a weapon. These instructions were sufficient to preclude conviction based on Cantrell's "mere presence" at the James home when the police discovered the guns. As in Serrano-Lopez, a "mere presence" instruction was unnecessary in Cantrell's case because it "would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof." Serrano-Lopez, 366 F.3d at 637 (citations omitted). We therefore conclude *694 the district court's instructions adequately and correctly covered the substance of Cantrell's requested "mere presence" instruction.

C. Cantrell's Second-Degree Burglary Conviction
Cantrell argues the district court erred in determining Cantrell was subject to an increased range of punishment as a career offender under U.S.S.G. § 4B1.1 because Cantrell's 1988 Missouri state court conviction for second-degree burglary constituted a "crime of violence" as defined in U.S.S.G. § 4B1.2. We review de novo the district court's conclusion a particular offense constitutes a "crime of violence" under the "career offender" provision of § 4B1.1. See United States v. LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006) (citation omitted).
Under U.S.S.G. § 4B1.2(a), a "crime of violence" is defined, in relevant part, as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . is burglary of a dwelling [or other specified offenses] or otherwise involves conduct that presents a serious potential risk of physical injury to another." The official "Commitment Report" in Cantrell's burglary case states:
On or about [the] 14th day of May, 1988, in the County of Wright, State of Missouri, the Defendant violated Section 569.170 RSMo by committing the Class C felony of Burglary second degree punishable upon conviction under Sections 558.011.1(3) and 560.011 RSMo in that the Defendant knowingly entered unlawfully in an inhabitable structure . . . for the purpose of committing stealing therein.
Under Mo.Rev.Stat. § 569.170, "A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein." Cantrell's "Commitment Report" does not specify what type of "inhabitable structure" Cantrell entered unlawfully. Under Mo.Rev.Stat. § 56.010(2):
"Inhabitable structure" includes a ship, trailer, sleeping car, airplane, or other vehicle or structure:
(a) Where any person lives or carries on business or other calling; or
(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or
(c) Which is used for overnight accommodation of persons. Any such vehicle or structure is "inhabitable" regardless of whether a person is actually present[.]
Cantrell argues, based on the limited information in the "Commitment Report" and the broad definition of "inhabitable structure" in the Missouri statute, it was impossible for the district court to determine whether Cantrell burglarized a "dwelling" or whether his offense constituted a "burglary" as defined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor, the Supreme Court grappled with how to define "burglary" within the meaning of the Armed Career Criminal Act (ACCA),[6] when convicting states' definitions of "burglary" varied. Id. at 580, 110 S.Ct. 2143. The Court reasoned the definition of "burglary" should be uniform, so as to avoid sentencing disparities for identical conduct in different states. Id. at 590-92, 110 S.Ct. 2143. Thus, the Court held an offense constitutes "burglary" under the ACCA, regardless of differences in individual *695 states' definitions of "burglary," when the offense contains the basic elements of a "generic burglary," which are "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 598-99, 110 S.Ct. 2143.
It appears Cantrell's offense fits within Taylor's definition of "burglary." In Cantrell's case, however, we need not analyze whether Cantrell's conviction constituted "burglary" as defined in Taylor, because Cantrell's offense was clearly a "crime of violence" under the "otherwise involves conduct that presents a serious potential risk of physical injury to another" clause of § 4B1.2(a).[7] Indeed, Taylor made clear "[t]he [g]overnment remains free to argue that any offenseincluding offenses similar to generic burglaryshould count towards enhancement as one that `otherwise involves conduct that presents a serious potential risk to another[.]'" Id. at 600 n. 9, 110 S.Ct. 2143.
In concluding Cantrell's second-degree burglary conviction was a "crime of violence," under the "otherwise involves" clause, the district court correctly anticipated the Supreme Court's decision in James v. United States, 550 U.S. ___, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), which was decided after Cantrell's sentencing. In James, the Court held attempted burglary, as defined by Florida law, is a "violent felony" under the "otherwise involves" provision of the ACCA. Id. at 1597-98. The Court examined whether the risks posed by attempted burglary were similar to the risks posed by the most closely related enumerated offensecompleted burglary. Id. at 1594. In concluding attempted burglary posed a "serious risk of potential physical injury to another," the Court reasoned:
The main risk of burglary arises not from the simple physical act of wrongfully entering onto another's property, but rather from the possibility of a face-to-face confrontation between the burglar and a third partywhether an occupant, a police officer, or a bystander  who comes to investigate. That is, the risk arises not from the completion of the burglary, but from the possibility that an innocent person might appear while the crime is in progress.
Id. at 1595-96.
This reasoning applies with equal force in Cantrell's case. Cantrell unlawfully entered an "inhabitable structure" "for the purpose of committing stealing therein." Missouri law limits the definition of "inhabitable *696 structure" to only those structures where people live, carry on business, assemble, or spend the night. See Mo. Rev.Stat. § 569.010(2). Thus, regardless of whether the "inhabitable structure" Cantrell unlawfully entered was a house, car, boat, airplane, or other "inhabitable structure," there existed the risk of a violent confrontation between Cantrell and the occupant, the police, or another third party. We therefore conclude the district court did not err in determining, regardless of whether Cantrell's state court burglary conviction was a "generic burglary" as defined in Taylor, Cantrell was subject to an increased range of punishment as a career offender under U.S. S.G. § 4B1.1, because Cantrell's state court second-degree burglary conviction constituted a "crime of violence" under the "otherwise involves conduct that presents a serious potential risk of physical injury to another" clause of U.S.S.G. § 4B1.2.

III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
NOTES
[1]  The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri.
[2]  The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri, adopting the report and recommendations of the Honorable James C. England, United States Magistrate Judge for the Western District of Missouri.
[3]  Cantrell asserts the magistrate and the district court should have discounted the confidential informant's information because Deputy Wallace gave testimony regarding the informant's information that was "not credible, reliable, or consistent." However, "[a] district court's determination as to the credibility of a witness is virtually unreviewable on appeal." United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995) (citations omitted). Cantrell provides no basis for concluding the district court clearly erred in crediting Deputy Wallace's testimony that he had reliable information from an informant saying Cantrell was at the James residence.
[4]  In James's motion to suppress, which Cantrell joined, James argued her Fourth Amendment rights were violated when officers allegedly trespassed on her father's, Charles James's, property to effectuate her arrest. Cantrell makes a vague reference to this issue in his brief but does not develop the point with any argument or case citations. To the extent Cantrell raises this issue, we agree with the district court's conclusion no Fourth Amendment violation occurred because officers were clearly operating under a good faith belief they had consent to enter the Charles James property. On at least two separate occasions, Charles James had given officers consent to enter his land any time the officers wanted and to go anywhere the officers wanted to go to thwart any illegal activity. Although Charles James gave this consent approximately two years earlier, there was no testimony Charles James's consent was limited to a particular time period or was ever withdrawn.
[5]  Cantrell's reliance on United States v. Manning is misplaced. In Manning, the defendant claimed to be an unwitting backseat passenger in a car when the front seat passenger dropped an unregistered gun out the front window. 618 F.2d at 46-47. We reversed the conviction in Manning for failure to submit a "mere presence" instruction because, unlike in Cantrell's case, the defendant in Manning presented testimony regarding his role in the offense ("merely a backseat passenger") which supported a "mere presence" instruction. Id. at 46, 48.
[6]  The relevant language in the ACCA is almost identical to the language in U.S.S.G. § 4B1.2(a).
[7]  At Cantrell's sentencing, in an effort to show Cantrell burglarized a "dwelling," the government presented Cantrell's deposition testimony from a 2006 civil case, in which Cantrell testified his 1988 conviction was for burglarizing a house that was being built. Cantrell objected, arguing the district court was precluded from considering his deposition testimony under Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (explaining the general requirement that sentencing judges "look only to the fact of conviction and the statutory definition of the prior offense," excepting "a narrow range of cases," to determine whether an offense constituted "generic burglary") and Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (further explaining a sentencing court may not examine police reports or complaint applications to determine whether an earlier guilty plea supports a conviction for "generic burglary"). The district court admitted Cantrell's deposition testimony as an exhibit, but stated, "I want to hear the rest of the argument before I'll make a decision as to whether it'll be part of my decision-making here." After hearing arguments, the district court made clear it did not find it necessary to consider the deposition, regardless of the type of "inhabitable structure" Cantrell burglarized or whether his crime constituted "generic burglary" as defined in Taylor, because Cantrell's crime was a "crime of violence" under the "otherwise involves" clause of § 4B1.1.


367 F.2d 144
Owen Columbus BROWN, Appellant,v.UNITED STATES of America, Appellee.
No. 22658.
United States Court of Appeals Fifth Circuit.
October 13, 1966.
Rehearing Denied January 20, 1967.

Douglas M. Andrews, DeFuniak Springs, Fla., for appellant.
Murray M. Wadsworth, Asst. U. S. Atty., Clinton Ashmore, U. S. Atty., Tallahassee, Fla., for appellee.
Before BROWN, GEWIN and GOLDBERG, Circuit Judges.
PER CURIAM:

1
Appellant was convicted below for selling whiskey without tax stamps affixed on October 31, 1963, in violation of 26 U.S.C.A. §§ 5205(a) (2), 5604(a) (1). Appellant now claims that proof of earlier events associating him and his confederates with the moonshine operation was inadmissible. We find this claim to be without merit because the earlier acts were reasonably related to the time and place of the act covered by the indictment. Indeed, proof of these earlier acts was necessary to explain that the occurrence of October 31 was in fact a sale of whiskey by Appellant through his agents.

2
With respect to the claim that when compared with the testimony given in the Tampa Division case (5 Cir., 367 F.2d 145), this day decided, the informer gave false testimony to the knowledge of the Government, there is simply nothing in either one or both of the records considered alone or together to support this charge.

3
We also find no merit in Appellant's claim that there was insufficient evidence to support the conviction. The jury, under proper instructions from the trial Judge, was clearly justified in finding the Appellant guilty.

4
Affirmed.


96 Wn.2d 601 (1981)
638 P.2d 77
WASHINGTON EDUCATION ASSOCIATION, ET AL, Appellants,
v.
ORIN SMITH, ET AL, Respondents.
No. 47164-9.
The Supreme Court of Washington, En Banc.
December 24, 1981.
Watson, Grosse & Feinstein, by C. Kenneth Grosse and Ronald E. Farley, for appellants Washington Education Association, et al.
Audrey B. Eide, for appellant Washington Public Employees Association.
Kenneth O. Eikenberry, Attorney General, and Robert F. Hauth and Richard M. Montecucco, Senior Assistants, for respondents.
DIMMICK, J.
This action for a declaratory judgment is to *603 determine whether the state budget director is authorized to permit voluntary payroll deductions for employees for the purpose of making direct contributions to the political action committee of the employees' labor associations. The trial court granted the State's cross motion for summary judgment holding there was no statutory authority for such a deduction nor any constitutional right for the political action committees to receive state funds from wages of the employees, nor any right for the employees to have their wages paid to someone other than themselves. We affirm.
Appellant Washington Education Association (WEA) is an employee association representing teachers and other state workers. Appellant Washington Education Association/Association for Higher Education (WEA/AHE) is an affiliate of the WEA and represents the various local associations for higher education in the state. Appellant Washington Public Employees Association (WPEA) represents public employees including 4,000 state government workers and nonacademic staff at community colleges. Each has established a political action committee to endorse and support candidates for public office. The WEA's political action committee, "Political Unity of Leaders in State Education" (PULSE), is comprised of teachers and educators. "Political Action by Concerned Employees" (PACE), the WPEA's political action committee, consists of state and other public employees and their families, as well as interested parties. The funds collected by the two political action groups are used to support candidates for public office, in state as well as in federal elections. In addition, PULSE funds are given to the National Education Association's political committee.
These political action committees had received a large proportion of their funds by way of voluntary payroll deductions by their members. Some associations of college educators had this procedure written into their collective bargaining agreements.[1] The PULSE membership fee is *604 $10 per year. PACE requires a minimum contribution of $10 per year. A 7-step process is involved in payroll deductions. As of January 1980, there were 76,874 state employees in 128 different agencies. Each payroll deduction represents additional cost to the State. The main personnel/payroll system has a maximum capability of handling 10 deductions per individual. It is therefore possible that the addition of 1 more deduction for political contributions would cause some employees to exceed this maximum.
In 1978, Orin Smith, Director of the Office of Fiscal Management, requested an Attorney General opinion regarding the statutory authority, or constitutional requirement for these deductions. The Attorney General opinion concluded that the respondent director[2] had no statutory authority to permit a state employee to establish a payroll deduction for the specified purpose of making a voluntary contribution to a labor union or other employee organization for political purposes. Attorney General Opinion, Oct. 26, 1978. As a result, the director terminated these payroll deductions. In response, the appellants filed this suit for declaratory and injunctive relief on stipulated facts and affidavits.

I
Appellants' major contention is that voluntary payroll deductions for political contributions by state employees are "clearly related to state employment" and therefore may be authorized by the budget director exercising his discretion pursuant to RCW 41.04.
RCW 41.04.230 authorizes state disbursing officials to deduct money from the salaries and wages of public officers or employees. Specifically, this statute permits deductions for (1) credit unions, (2) parking fees, (3) United States *605 savings bonds, (4) board, lodging or uniforms, (5) membership dues to any professional organization formed primarily for public employees or college and university professors, (6) other labor or employee organization dues, (7) accident and casualty premiums, and (8) certain other insurance contributions. See also RCW 41.04.036 (permitting deductions for United Fund); RCW 41.04.233 (permitting deductions for health maintenance organizations).
In addition, RCW 41.04.230 contains a general provision permitting deductions for activities "clearly related to state employment" which reads in pertinent part:
Deductions from salaries and wages of public officers and employees other than those enumerated in this section or by other law, may be authorized by the director of financial management for purposes clearly related to state employment or goals and objectives of the agency ...
(Italics ours.)
The thrust of appellants' argument is that these deductions are for "purposes clearly related to state employment", and, therefore, come within the general provision as political activity is an essential element of state employment. Appellants note that since state employees' working conditions are in part established by the legislature, the employees are at the mercy of the political process. Thus, voluntary political contributions are necessary to insure that employees have some voice in the establishment of working conditions. We do not find this argument persuasive.[3]
First, it is unclear whether these contributions directly impact the employees' bargaining position. There is no guaranty that either PULSE or PACE will spend these funds exclusively on state elections. In fact, some of the *606 funds are contributed to candidates for federal offices who have little, if anything, to do with establishing wages, hours and conditions of employment for Washington state employees. Further, the interests of the members are diverse in that the associations are comprised of public employees and their families as well as state employees and "others".
Second, we can find nothing in the legislative history of the act indicating that the legislature intended to permit deductions for political purposes. In other legislation, the legislature has expressed its disapproval of using state property in connection with the solicitation or making of political contributions. See RCW 41.06.250(1) (prohibiting the solicitation on public property of political or partisan contributions); RCW 42.17.130 (prohibiting the use of any facilities of a public office or agency, directly or indirectly, for campaign purposes).
[1] Finally, the opinion of the Attorney General concludes that these political contributions are not authorized. Attorney General Opinion, Oct. 26, 1978. Although not binding, opinions of the Attorney General in construing statutes are entitled to considerable weight. In re Chi-Dooh Li, 79 Wn.2d 561, 488 P.2d 259 (1971); Kasper v. Edmonds, 69 Wn.2d 799, 420 P.2d 346 (1966). This is especially true in the instant case given the legislature's acquiescence to the Attorney General's interpretation of RCW 41.04.230 as evidenced by its failure, in subsequent legislative sessions, to modify the statute.[4]See White v. State, 49 Wn.2d 716, 306 P.2d 230, appeal dismissed, 355 U.S. 10, 2 L.Ed.2d 21, 78 S.Ct. 23 (1957); State ex rel. Pirak v. Schoettler, 45 Wn.2d 367, 274 P.2d 852 (1954).
[2, 3] There being no specific provision for such deductions within the statutes of the state, the problems of fiscal impact and the strict adherence of the legislature to refrain *607 from participation by the State in partisan politics, lead us to the conclusion that the legislature did not intend to include political contributions within the limited general classification of activity "clearly related" to state employment. If there is a fair or reasonable doubt as to whether or not a particular power has been granted, it must be denied. Pacific First Fed. Sav. & Loan Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947); Griggs v. Port of Tacoma, 150 Wash. 402, 273 P. 521 (1928). Therefore, we hold the director does not have discretionary power in this case.

II
Appellants next assert that if RCW 41.04 does not permit voluntary payroll deductions for political contributions, it is violative of the First Amendment rights of political association and speech. They argue that not allowing the payroll deduction "becomes a limitation on political contributions and expenditures and therefore a regulation of speech" in direct conflict with Buckley v. Valeo, 424 U.S. 1, 46 L.Ed.2d 659, 96 S.Ct. 612 (1976). Such a prohibition also "takes away from public employees their First Amendment right to political speech and association as a condition of their employment," in violation of Abood v. Detroit Bd. of Educ., 431 U.S. 209, 52 L.Ed.2d 261, 97 S.Ct. 1782 (1977). These arguments, however, ignore the fact that state workers are not prohibited entirely from contributing to the political action committees. Rather, only one method of facilitating contributions is prohibited. Thus, the federal constitution does not require the State to make this type of deduction.
[4] Certainly, contributing to an organization for the purpose of spreading a political message is protected by the First Amendment. See Abood (holding that a mandatory state-employee union could not use union dues for political or ideological causes without the consent of the members individually); Buckley v. Valeo, supra (a very divided Supreme Court holding that while federal limitations on political contributions and disclosure requirements were constitutional, expenditure limitations were not). See also *608 Charlotte v. Local 660, Int'l Ass'n of Firefighters, 426 U.S. 283, 48 L.Ed.2d 636, 96 S.Ct. 2036 (1976) (holding that the City did not violate equal protection guaranties by refusing to withhold union dues when a rational basis (administrative convenience) could be perceived). Yet, the protection afforded by the First Amendment is not necessarily extended to tangential infringements such as are involved in the instant case. Just as "[t]he right to speak and publish does not carry with it the unrestrained right to gather information", Zemel v. Rusk, 381 U.S. 1, 17, 14 L.Ed.2d 179, 85 S.Ct. 1271 (1965), the right to make political contributions does not necessarily include the right to compel the State to deduct the contributions from one's paycheck.
A decision by the Federal District Court for the Eastern District of Virginia is on point. In Local 995, Int'l Ass'n of Firefighters v. Richmond, 415 F. Supp. 325 (E.D. Va. 1976), the district court held that the City's refusal to withhold union dues from the wages of firefighters, and to transfer those funds to the union treasury, was not constitutionally mandated:
Failure of the City to provide "check-offs" does not in this Court's view significantly impair the union's ability to organize and provide services for its members.
Furthermore, while the First Amendment protects the right of American citizens to freely associate, it was never intended to provide an affirmative weapon in forcing the state to aid union organizational activities. While a state may be prohibited from penalizing or restricting union activities, the First Amendment imposes no duty on the state to provide services or engage in policies that will affirmatively assist a union to carry out its function and purpose. It follows, therefore, that even if it can be said that the City's refusal to provide check-offs effects [sic] the union's ability to organize, no constitutional rights of the plaintiffs are being infringed.
(Citations omitted.) Local 995, at 326. Similarly, in the instant case, even if the State's refusal to deduct for political contributions impairs the union's ability to take political *609 action, none of appellants' constitutional rights are involved. There are many other methods of soliciting contributions, foremost of which is mail solicitation.

III
Appellants also allege that prohibiting payroll deductions for political action committees for community college teachers and other state employees while permitting these deductions for employees of common schools is violative of the equal protection clause of the Fourteenth Amendment. RCW 28A.67.095 allows disbursing officials authorized to pay the salaries and wages of certificated employees of school districts to make any deductions authorized by those employees if 10 percent so request, subject to the limitations of district equipment and personnel. Thus, some teachers in grades K through 12 have their contributions to political action committees deducted automatically from their paychecks. Appellants assert that this disparate treatment of teachers, based solely on the educational level they teach, is so arbitrary and unreasonable that it violates the equal protection guaranty.
[5, 6] The burden of proving that the classification is arbitrary and unreasonable rests upon the party assailing the classification. State School Directors Ass'n v. Department of Labor & Indus., 82 Wn.2d 367, 376-77, 510 P.2d 818 (1973); State v. Persinger, 62 Wn.2d 362, 368-69, 382 P.2d 497 (1963). Appellants, however, are unable to meet this burden. Community college teachers and common schoolteachers are two very distinct classes of employees; the former are paid and administered by the State, whereas the latter are paid and administered by the school districts. These two groups are often treated differently. RCW Title 28A deals in its entirety with special provisions for common schools; RCW Title 41 deals with state employment. As an example, teachers in common schools are not given the "floating holiday" that other state employees are granted. Prante v. Kent School Dist., 27 Wn. App. 375, 618 P.2d 521 (1980). Moreover, the State's fiscal and payroll management *610 is vastly more complex than that of any of the separate and semiautonomous school districts due to the far greater number of employees working in separate agencies all under the payroll supervision of one office. In fact, their only common characteristic is that they are both "public teachers".

IV
[7] Appellants next contend that respondents are estopped from contesting the collective bargaining agreements between the respondent community college districts and appellant education associations which provide for payroll deductions for political action committee contributions. We have held that the State can be estopped where the other party has acted to his or her detriment in reliance upon the State's commitment. State ex rel. Shannon v. Sponburgh, 66 Wn.2d 135, 401 P.2d 635 (1965). The doctrine of estoppel, however, is only applied to prevent manifest injustice. Finch v. Matthews, 74 Wn.2d 161, 443 P.2d 833 (1968). Most importantly, estoppel will not be applied against a governmental body whose acts are ultra vires and void. Finch v. Matthews, supra; Arbogast v. Westport, 18 Wn. App. 4, 567 P.2d 244 (1977); Fitzgerald v. Neves, Inc., 15 Wn. App. 421, 550 P.2d 52 (1976).
Appellants' estoppel argument, therefore, is dependent upon the authority of the respondent districts to agree to the payroll deductions involved herein, which in turn is dependent upon our interpretation of RCW 41.04.230. Since we hold today that the statute does not permit the deductions, and that the United States Constitution does not require them, we find that the contract was ultra vires. Therefore, the respondent is not bound. See Finch.

V
[8] Lastly, appellants contend that if RCW 41.04.230 does not permit political action payroll deductions, it is in conflict with and therefore preempted by 2 U.S.C. §§ 431-56 (1976) (Federal Election Campaigns Act (FECA)). This argument fails for two reasons. First, that act affects federal *611 elections only. 2 U.S.C. §§ 431, 453. State law still governs state elections. Cf. Cort v. Ash, 422 U.S. 66, 45 L.Ed.2d 26, 95 S.Ct. 2080 (1975) (holding that if state law permits contributions in state elections which would violate the federal act if made in a federal election, federal law provides no remedy). In the instant case, appellants make no claim of being substantially involved in federal elections.
Second, there is nothing in the FECA that requires any employer to establish a payroll deduction plan for its own employees. Appellants' reference to 2 U.S.C. § 441b(b)(5) is inapposite, for this provision merely states that a corporation must establish a payroll deduction plan for voluntary contributions by union employees if it has such a plan for stockholders and executive or administrative personnel. Otherwise, such a payroll deduction plan is not required. See the FECA regulations at 11 C.F.R. § 114.5(k)(4) (1981).
The legislature is the proper body to determine the practicalities of expanding the list of payroll deductions. Since, at the present time, contributions for political activities are neither permitted by statute, nor required by the constitution, we affirm the trial court.
BRACHTENBACH, C.J., and STAFFORD, UTTER, DOLLIVER, and HICKS, JJ., concur. DORE, J. (dissenting)
I dissent because I find payroll deductions for political activities by state employees are clearly related to their employment and, therefore, I would authorize employee payroll deductions for union contributions. The majority holds that the activities for which employee deductions are contributed do not impact the employees' bargaining position. I disagree.
RCW 41.04.230 provides:
Deductions from salaries and wages of public officers and employees other than those enumerated in this section or by other law, may be authorized by the director of financial management for purposes clearly related to state employment or goals and objectives of the agency. ...
*612 (Italics mine.)
The primary role of the court in construing this statute is to determine the intent of the legislature, and to give effect to that intent. Burlington N., Inc. v. Johnston, 89 Wn.2d 321, 572 P.2d 1085 (1977). To this end, the statute must be read as a whole; intent is not to be determined by a single sentence (or, in this case, the single phrase "clearly related to state employment"). State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977). RCW 41.04.230 provides specifically for payroll deductions for credit unions, parking fees, United States savings bonds, board, lodging and uniform fees, professional and union dues, accident and casualty premiums, insurance contributions and health maintenance payments. The legislature also provided for any payroll deductions for purposes "clearly related to state employment or goals and objectives of the agency".
The majority used a vacuum of legislative history as affirmative evidence that the legislature intended to prohibit deductions for political purposes. In my opinion, this analysis is totally unjustified. Footnote 3 of the majority opinion, on page 605, specifically notes that union dues may be used to finance legislative lobbying, collective bargaining and other political activity, as long as each employee is afforded the opportunity to refuse to contribute to a specific activity.[5]Abood v. Detroit Bd. of Educ., 431 U.S. 209, 52 L.Ed.2d 261, 97 S.Ct. 1782 (1977); Association of Capitol Powerhouse Eng'rs v. State, 89 Wn.2d 177, 188-89, 570 P.2d 1042 (1977). The majority's contention that political deductions should not be allowed because there is no specific provision for their deductions is unfounded. The legislature provided for payroll deductions to be added later with its "catchall" provision, RCW 41.04.230. The history of the legislation does not indicate that deductions for political purposes are excluded. I would argue that on this *613 record political contributions are more related to state government than the specifically enumerated allowances for United States savings bonds, charitable organizations, and accident and casualty premiums.
The majority at page 608 sees the invasion of the union members' First Amendment rights of association and free speech as mere "tangential infringements". Yet, without the allowance of payroll deductions for these political activity funds, teacher unions and their associated political action groups will be restricted in securing minimum benefits for their members. The majority cites Local 995, Int'l Ass'n of Firefighters v. Richmond, 415 F. Supp. 325 (E.D. Va. 1976) as legal authority for its position. In Richmond, however, the court found that the absence of "check-offs" did not significantly impair the union's ability to organize and provide services for its members because there were viable alternative methods available. This is simply not true in the present case. Affidavits show that physical solicitations at employee work sites or on state property are prohibited. Admittedly it is extremely difficult, if not impossible, to coordinate solicitation and receipt of cash contributions in a manner wherein members do not have easy access to union representatives. Affidavits further show that direct mail solicitation has proved ineffective and costly. Pleas in monthly newsletters are a waste of money. Alternative methods to the payroll deduction system are ineffective.[6] The importance of the payroll deduction method to the participation of teachers in these political action groups is illustrated by the immediate reduction of membership upon the discontinuation of payroll deductions.[7] The majority fails to recognize the realistic *614 result of not allowing these payroll deductions: without this method of contribution, the survival of these political action organizations is threatened and state employees' rights to freely associate and speak regarding their employment concerns and needs will be lessened.
The majority claims that teacher payroll deductions are not clearly related to state employment because there is no guaranty that the funds will be spent exclusively on state elections. The language of RCW 41.04.230, however, requires only clear, not exclusive, relation to state employment. It is true that some of the funds are contributed to candidates for federal offices who have little to do with establishing teacher employment terms. The majority of the money withheld, however, is used to finance legislative lobbying, collective bargaining and political activities designed to further political impact of the involved unions.
The majority mistakenly relies upon the opinion of the Attorney General, which concludes that teacher political deductions are unauthorized. Attorney General Opinion, Oct. 26, 1978. Attorney General opinions should be considered when interpreting an ambiguous statute. Bradley v. Department of Labor & Indus., 52 Wn.2d 780, 329 P.2d 196 (1958). But such an opinion is not controlling, and this court has frequently declined to follow opinions of the Attorney General. Kasper v. Edmonds, 69 Wn.2d 799, 420 P.2d 346 (1966) and cases cited therein; Davis v. County of King, 77 Wn.2d 930, 468 P.2d 679 (1970). The subject Attorney General opinion is conclusory on the issue of whether political deductions are related to state employment, stating at page 8:
[T]o the extent that state property may be used at all in connection with the solicitation or making of political contributions, it is hedged with very careful restraints. See, for instance, RCW 42.17.130 [forbids use of public offices and agency facilities in political campaigns]; also, RCW 41.06.250(1) [forbids compulsory assessments or involuntary political contributions and prohibits solicitation on state property for partisan, political purposes]. *615 Accordingly, while payroll deductions for political contributions might not clearly conflict with either of those expressed purposes, we can find no basis for holding that this type of deduction would satisfy the express statutory requirement that it must be "clearly related."
The statutes cited are not applicable. The opinion admits that teacher payroll deductions do not conflict with the general provision statute. In the absence of any affirmative rationale for denying payroll deductions for political union activities, the Attorney General opinion is of little value.
In recent days, this court has denied a state school request for a temporary injunction to prevent a wholesale 10.1 percent reduction of common school appropriations.[8] Teachers claim that the 1981-83 appropriations for schools constitute minimum support for "basic education" of our children throughout the state. They argue that if a cut of such magnitude is effectuated, hundreds of teachers will become unemployed. A special session of the legislature has been called to address our economic situation including the threatened cut in school funding. It is clear that if the subject payroll deductions had been in effect for the past 2 years, these funds would now be available to use as a public relations mechanism to disseminate information as to what impact these suggested school cuts will have on basic education and the number of teachers that will be terminated in the event large cuts are mandated. Such monies also could be made available to hire lobbyists, for travel and expense money for teachers to go to the special session and converse with legislators, and for political contributions to individual legislators.
This unexpected and dramatic calling of the special session highlights the importance of these political contributions and how closely they are related to state government and the continued employment and welfare of teachers. *616 The majority states at page 607 that "the legislature did not intend to include political contributions within the limited general classification of activity `clearly related' to state employment". The pending school crisis strongly emphasizes the degree to which these payroll deductions are related to their status as state employees.

CONCLUSION
The majority's denial of payroll deductions will seriously restrict the ability of our teachers to actively participate in the political process which determines their working conditions. In addition, its decision continues to mandate a drastic dwindling of teacher political action groups, as is illustrated by the sharp decline in membership already experienced.
I would hold that the language of RCW 41.04.230 permits payroll deductions for political purposes, including candidate contributions, by state teachers. I would reverse.
ROSELLINI and WILLIAMS, JJ., concur with DORE, J.
NOTES
[1]  These associations included the Wenatchee Valley College Association for Higher Education and the Skagit Valley College Association for Higher Education, who are also appellants in the instant case.
[2]  Other respondents include the Office of Fiscal Management, Wenatchee Valley Community College, and Skagit Valley Community College.
[3]  In fact, union dues may be used to finance legislative lobbying, collective bargaining, and other political activity, as long as each employee is afforded the opportunity to refuse to contribute to a specific activity. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 52 L.Ed.2d 261, 97 S.Ct. 1782 (1977); Association of Capitol Powerhouse Eng'rs v. State, 89 Wn.2d 177, 188-89, 570 P.2d 1042 (1977).
[4]  At oral argument, counsel for Washington Education Association (WEA) stated that WEA had tried, unsuccessfully, to have RCW 41.04.230 amended to specifically permit deductions for political action committees.
[5]  Neither party denies that these payroll deductions to political action groups are entirely voluntary, and the individual employee is free to refuse authorization of this deduction.
[6]  See Affidavit of Michael Sayan, Clerk's Papers, at 40-42; Affidavit of Carol Coe, Clerk's Papers, at 43-45.
[7]  During the 1977-78 year, in which payroll deductions were allowed, PULSE boasted a total of 905 members. When the payroll deductions were discontinued late in 1978, PULSE membership dropped to 801 for the 1978-79 year. And during the 1979-80 year, PULSE membership dropped to an all-time low of 124 members.
[8]  The constitutionality of pending 1981-82 school appropriation cuts is currently before this court in the case of Seattle School District No. 1 of King County v. State, cause No. 47947-0.


110 S.E.2d 727 (1959)
STATE of West Virginia
v.
Burl H. TAFT.
No. 11035.
Supreme Court of Appeals of West Virginia.
September 15, 1959.
Decided November 3, 1959.
*730 M. G. Bufano, Morgantown, for plaintiff in error.
W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error. *728
*729 CALHOUN, Judge.
The defendant, Burl H. Taft, was indicted in the Circuit Court of Monongalia County on a charge that, in January, 1957, he unlawfully transported in an automobile "a certain quantity of alcoholic liquor, in excess of one (1) gallon". Following his conviction by the verdict of a jury, he was sentenced by the court to serve one year in the county jail and to pay a fine of $250. The case is before this Court on writ of error to that judgment.
The same case was previously before this Court, the opinion being reported in 102 S.E.2d 149. Another case, arising from the same episode, involving a charge against the defendant of operating a motor vehicle while under the influence of intoxicating liquor, was likewise before this Court, the opinion being reported in 102 S.E.2d 152. Facts pertinent to the present case are set forth in those two opinions.
On January 8, 1957, Joseph Paul Sisler, a constable of Monongalia County, observed the defendant's automobile strike the rear of the constable's automobile which was parked on a street known as Chancery Row, near the courthouse in the City of Morgantown. Upon investigation the constable discovered that the defendant was in the driver's position in his automobile, and apparently intoxicated. Thereupon the constable arrested the defendant upon a charge of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor, took him to the county jail nearby, searched him, and placed him in jail. The constable, at the time of the arrest, observed on the rear seat of defendant's automobile two one-half gallon bottles and a one-fifth gallon bottle containing what the officer believed to be intoxicating liquor.
After the defendant was placed in jail, the constable, assisted by two deputies from the sheriff's office, returned promptly to defendant's automobile and removed therefrom the two one-half gallon bottles and a one-fifth gallon bottle which were found *731 to contain intoxicating liquor. The one-fifth gallon bottle was not completely filled. With keys obtained by the previous search of defendant's person at the county jail, the officers opened the trunk of defendant's automobile and found therein thirty one-fifth gallon bottles of alcoholic liquor. While the testimony indicates that the officers procured a warrant for the search of defendant's automobile prior to the time they removed the intoxicating liquor from the trunk of the automobile, the warrant was not introduced as a part of the evidence at the trial.
In the former opinion this Court held that the word "transport", as used in the statute relating to unlawful transportation of alcoholic liquors, requires "an intentional movement of the automobile by the defendant * * * though the movement need not be from a certain place to a previously intended place, or for any certain distance." The Court also held that the constitutional guaranty against unreasonable searches and seizures "does not prohibit a seizure without such warrant, where there is no need of a search, but the contraband subject matter is fully disclosed and open to any one of the senses." [102 S.E.2d 150.]
The evidence relating to the defendant's intoxication was sufficient to authorize the jury to find that defendant's arrest was justified. Constable Sisler and Chief Deputy Sheriff Hugh Brand testified that the intoxicating liquor on the rear seat of defendant's automobile was clearly visible from outside the vehicle. This Court previously held that, under such circumstances, the officers were justified in confiscating such liquor without a search warrant. The liquor found on the rear seat of the automobile was, of course, in a quantity in excess of one gallon.
When an officer makes a lawful arrest, with or without a warrant, the law accords to such officer a right to make a reasonable search as an incident of such lawful arrest, not only of the person of the one arrested but also of the automobile in which the accused may be found at the time of the arrest. State v. Roberts, 136 W.Va. 391, 68 S.E.2d 48; State v. Rigsby, 124 W.Va. 344, 20 S.E.2d 906; State v. Hatfield, 112 W. Va. 424, 164 S.E. 518; 79 C.J.S. Searches and Seizures § 26, page 795.
The defendant complains of the action of the Court in granting the following instruction tendered on behalf of the State:
"The Court instructs the Jury that upon the trial of a criminal case by a jury the law contemplates the concurrence of twelve minds in the conclusion of guilt before a conviction can be had. Each individual juror must be satisfied beyond a reasonable doubt of the defendant's guilt before he can rightly, under his oath, consent to a verdict of guilty. Each juror should feel the responsibility resting upon him as a member of the jury, and should realize that his own mind must be convinced beyond all reasonable doubt of the defendant's guilt before he can consent to a verdict of guilty. Therefore, if any individual juror, after having duly considered the evidence in the case, the instructions of the Court, the arguments of counsel, and consulting with his fellow jurors, should entertain a reasonable doubt of defendant's guilt, it is his duty not to surrender his own convictions simply because all, or some, of the other jurors entertain a different opinion.
"And in this connection the jury is further instructed that the jury room is no place for pride of opinion or obstinacy, and it is the duty of the jurors to discuss the evidence in a spirit of fairness and candor with each other, and with open minds to give careful consideration to the views of their fellow jurors, and, if it can be done without a sacrifice of conscientious convictions, agree upon a verdict."
Defense counsel object to the second paragraph of the instruction. While *732 the law contemplates the free and deliberate concurrence of all jurors as a prerequisite of a verdict, this Court has expressed its disapproval of instructions couched in language tending to foster disagreement among or obduracy on the part of jurors. The court in its instructions must neither encourage disagreement nor coerce agreement. "It is proper for a trial court to tell the jurors that it is their duty to agree, if possible, and that in conferring they should respect each other's opinion with a disposition to agree thereto, if based on sound reasoning." Emery v. Monongahela West Penn, 111 W.Va. 699, 709, 163 S.E. 620, 624, 88 C.J.S. Trial § 297, page 810.
In the case of Robertson v. Hobson, 114 W.Va. 236, 171 S.E. 745, the Court, in point one of the syllabus, with reference to an instruction dealing with the unanimity of the jury stated: "But such an instruction embodies principles so generally understood by jurors and so fully covered by the oath of the juror, that refusal to give the instruction would rarely, if ever, constitute prejudicial error." In the case of State v. Sibert, 113 W.Va. 717, 169 S.E. 410, a similar instruction was refused because it failed to include language dealing with the duty of jurors to consult with each other in a good faith effort to agree. In the State of Virginia it is held, in both civil and criminal cases, that it is not error to refuse to grant instructions dealing with unanimity of the jury. Randolph v. Commonwealth, 190 Va. 256, 56 S.E.2d 226. In the case of Riddle v. Baltimore & O. Railroad Co., 137 W.Va. 733, 755, 756, 73 S.E.2d 793, 805, 34 A.L.R.2d 1228, in considering an instruction on unanimity of the jury, this Court stated: "This instruction was skillfully drafted by defendant's counsel. It correctly instructed the jury that the verdict should be unanimous without inviting obduracy or disagreement on the part of the jury. If the trial court had given the instruction, as drafted, its action in that regard would not have been reversible error, nor, under the present holding of this Court, would its refusal thereof constitute reversible error." In the light of the prior decisions of this Court, the trial court did not err in granting the instruction.
Counsel for the defendant earnestly insist that the evidence was not sufficient to prove "an intentional movement of the automobile by defendant" so as to constitute "transportation", as defined by the Court in the former opinion in this case.
The defendant testified that he purchased the alcoholic liquor at the state liquor store situated nearby and carried it from the liquor store to his automobile one gallon at a time; that his purpose was to remove the liquor from the automobile later and to carry it to the apartment of his friend, Max Marsh, the apartment being in a building situated nearby; that, at the time of his arrest, he was waiting for Marsh to return to his apartment; that his automobile was parked on the street in the rear of the constable's automobile; and that, at the time of his arrest, his automobile keys were in his pocket. When asked what caused his automobile to move forward, the defendant stated: "I don't have any idea, unless the brake let loose, if I knocked it some way, or whether it released itself. I am not sure whether slamming the door could have knocked the brake off; I am not certain how." Defendant further testified that his automobile was of such a type and mechanical construction that "the gears will not hold the car in position. You can't lock the car by the gears; you have to use the emergency brake." The evidence discloses without dispute that, at the point where defendant's automobile was parked, there is a slight grade or downward slope in the direction of the point at which the Sisler automobile was parked. The defendant denied he was intoxicated. He testified that after his automobile struck the Sisler automobile, he got out of his own vehicle to see whether or not the Sisler automobile had been damaged.
*733 On the other hand, Constable Sisler testified that he heard a "bang", which sounded like one automobile striking another; that he thereupon looked in the direction of the defendant's automobile, and saw it moving forward; that it struck the constable's automobile, causing a second "bang"; that, though his emergency brake was drawn and his automobile was parked "against the curb" and in gear, it was knocked forward by the impact a distance of about four feet; that the right front door of the Taft vehicle was locked; that he rapped on the window of defendant's vehicle in an effort to attract defendant's attention, but being unable to do so, he flashed a light in defendant's face; that defendant thereupon opened the door and the witness sat down with the defendant on the front seat; that the keys were in the ignition switch and the defendant was endeavoring to start the motor; that the defendant's automobile "went forward under power"; that when the officer sat down beside defendant, "the starter was running on the car"; that the defendant took the keys from the ignition switch; that the defendant did not get out of his automobile prior to the time of his arrest; that defendant did not succeed in starting the motor because "I got him stopped before he could"; that defendant's vehicle "was going too fast to be drifting, looked like to me;" and "it was under power, it seemed to me." On cross-examination Sisler admitted that he did not actually know that the motor of defendant's automobile was running because he did not "hear it". On cross-examination he admitted also that he could not state as a fact that the vehicle moved forward under its own power.
The jury was permitted to view the scene, including, of course, the nature and degree of the grade or slope of the street at that point. Things which are observed by a jury in connection with a view "so far as they are pertinent to show anything proper to be proved, are to be considered by them the same as any other evidence introduced in the case." Chesapeake & O. Ry. Co. v. Johnson, 137 W. Va. 19, 69 S.E.2d 393, 394. Having had the benefit of the view, the jury was in a position to judge whether the action of defendant's automobile in merely "drifting" without the power of its motor would have been sufficient to force Sisler's vehicle forward approximately four feet while in gear and with its emergency brake drawn. In this case involving conflicting testimony, the credibility of witnesses and reasonable inferences to be drawn from all facts and circumstances in evidence, we feel that the verdict of the jury was justified and is controlling. State v. Magdich, 105 W.Va. 585 pt. 1 syl., 143 S.E. 348; State v. Toler, 129 W.Va. 575, 41 S.E.2d 850.
While Constable Sisler was on the witness stand, the trial judge propounded to him the following question: "Just to get a couple of matters clear here, there is some reference in the final result of this case to there being a considerable grade at that space; actually, there is no considerable grade at all there, is there", to which the witness replied: "No grade to amount to anything, no." It is urged on behalf of the defendant that this amounted to an invasion of the province of the jury and a comment by the trial judge upon the steepness of the grade. There was no contention during the trial that the grade or slope was other than slight. The jury viewed the scene and therefore could not have been misled by the trial judge's question, and there was no prejudicial error in this respect.
A motion was made on behalf of the defendant to have a demonstration made with defendant's automobile at the scene in the presence of the jury to determine whether or not it would "drift". The defendant assigns as error the action of the court in refusing to permit such demonstration. At the time of this second trial more than a year had elapsed since the arrest. On this second trial, defendant contended that at the time in question his automobile *734 was parked at a point different from that shown by the testimony of State witnesses. In any event the propriety of permitting such a demonstration was within the sound discretion of the trial court. State v. Newman, 101 W.Va. 356, 132 S.E. 728; Ferrell v. Commonwealth, 177 Va. 861, 14 S.E.2d 293; 85 A.L.R. 482; 88 C.J.S. Trial § 46, page 115.
It is urged that the court, over the objection of defendant, permitted Sisler to express the opinion that defendant's automobile did not merely "drift" forward against Sisler's automobile. Three times previously, without objection, Sisler gave substantially the same testimony. His previous answers in this respect were as follows: "It was going forward under power"; "The car went forward under power"; and "It was under power, it seemed to me."
Clearly Sisler did not qualify as an expert to give such testimony. Nevertheless, a non-expert witness may express an opinion "when the facts from which the witness' conclusions are drawn cannot be presented to the jury with the same force and clearness as they appear to an observer who is also qualified by his own personal experiences to draw conclusions not apparent to others." State v. Waters, 104 W.Va. 433, pt. 2 syl., 140 S.E. 139.
Sisler previously had been a police officer of the City of Morgantown. He was thirty-one years of age and had operated motor vehicles since the age of sixteen. It was proper for Sisler to express his impression, based on what he observed, that the car did not merely drift forward, not on the basis of expert testimony, but because the situation which formed the basis of the witness' sensations and impressions in this respect could not be portrayed adequately to the jury. The trial court did not err in this respect, particularly in view of the fact that Sisler had previously testified without objection substantially to the same effect. The Law of Evidence in Virginia and West Virginia, Section 121, page 208; Reall v. Deiriggi, 127 W.Va. 662, 34 S.E.2d 253; Curfman v. Monongahela West Penn Public Service Co., 113 W.Va. 85, 166 S.E. 848; State v. Waters, 104 W. Va. 433, 140 S.E. 139; State v. Dushman, 79 W.Va. 747, 91 S.E. 809; Cline v. Norfolk & W. Railway Co., 69 W.Va. 436, 71 S.E. 705; Kunst v. City of Grafton, 67 W. Va. 20, 67 S.E. 74, 26 L.R.A.,N.S., 1201; State v. Welch, 36 W.Va. 690, 15 S.E. 419.
Counsel for the defendant complain of the action of the trial court in refusing to grant defendant's instructions No. 4 and No. 7, respectively. Instruction No. 4 deals with the burden of proof, and reasonable doubt, and concludes as follows: "* * * but to warrant his conviction the defendant's guilt must be proven so clearly and conclusively that there is no reasonable theory based upon the evidence of the case upon which he can be innocent." (Italics supplied.) Instruction No. 7 deals generally with the same subject as instruction No. 4, but concludes as follows: "To justify a verdict of guilty in this case, the evidence must be of such a character as to exclude every reasonable hypothesis save that of guilt". (Italics supplied.) Such instructions relate primarily to criminal cases based on circumstantial evidence, and in a case based primarily on direct evidence, such instructions are properly refused. State v. Wilson, 74 W.Va. 772, pt. 6 syl., 83 S.E. 44; State v. Michael, 141 W. Va. 1, pt. 7 syl., 87 S.E.2d 595. The action of the court in refusing to grant these two instructions was not error, particularly in view of the fact that other instructions which were granted covered adequately the elements of burden of proof and reasonable doubt.
Over objection, the court granted State's instruction No. 2 as follows:
"The Court instructs the Jury that to constitute transportation of intoxicating liquor in an automobile, an intentional movement of the automobile *735 by defendant is necessary, though that movement need not be from a certain place to a previously intended place, or for any certain distance.
"And in this connection, you are further instructed that a man is presumed to intend that which he does or which is the immediate and necessary consequence of his act."
The only objection assigned by defense counsel to the granting of this instruction was that "the second paragraph is prejudicial to the defendant's rights." It is urged that the second paragraph tends to state that the defendant is presumed to have intended to move the automobile, even though such movement was accidental. We do not mean to imply that such contention is utterly without plausible foundation. In this connection, however, we bear in mind that there is testimony and there are circumstances from which the jury might reasonably conclude that the defendant did intentionally get into his automobile, put his key in the ignition switch, and undertake to start the motor. The testimony of Sisler, coupled with the circumstances, justifies the conclusion that the defendant's automobile moved forward under the power of its motor. The first paragraph of the instruction makes it clear that "an intentional movement of the automobile by the defendant is necessary" in order to warrant a conviction. When this particular instruction is considered in its entirety and in connection with other instructions granted, we do not feel that the jury could have been misled thereby, and we do not feel that the trial court committed prejudicial error in granting the instruction. We have considered carefully other assignments of error, but feel that they do not disclose any error prejudicial to the rights of the defendant.
The judgment of the Circuit Court of Monongalia County is, therefore, affirmed.
Affirmed.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 00-6830

UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus

TERRANCE LAMONT MOORE,

                                              Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at New Bern. Malcolm J. Howard, District
Judge. (CR-98-13-4-1H)

Submitted:   September 14, 2000       Decided:    September 26, 2000

Before WILKINS, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Terrance Lamont Moore, Appellant Pro Se. John Samuel Bowler, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Terrence Lamont Moore appeals from the district court’s order

denying his motion for judicial recusal. Recusal is governed by 28

U.S.C. § 455 (1994), which provides in relevant part:

     (a)   Any justice, judge, or magistrate of the United
           States shall disqualify himself in any proceeding
           in which his impartiality might reasonably be
           questioned.

     (b)   He shall also disqualify himself in the following
           circumstances:

           (1)   Where he has a personal bias or prejudice
                 concerning a party, or personal knowledge of
                 disputed evidentiary facts concerning the
                 proceeding . . . .

28 U.S.C. § 455.

     This Court reviews a district judge’s refusal to recuse him-

self for abuse of discretion.   See United States v. DeTemple, 162

F.3d 279, 283 (4th Cir. 1998), cert. denied, 526 U.S. 1137 (1999).

Applying this standard to the instant facts, we find that Moore

fails to demonstrate such an abuse.    Accordingly, we affirm the

district court’s denial of his motion. We dispense with oral argu-

ment because the facts and legal contentions are adequately pre-

sented in the materials before the court and argument would not aid

the decisional process.

                                                          AFFIRMED

                                 2


898 A.2d 1142 (2006)
STANLEY-LAMAN v. HYLDAHL.
No. 1000 EDA 2005.
Superior Court of Pennsylvania.
March 7, 2006.
Affirmed.


172 F.3d 881
U.S.v.Blackshear*
NO. 96-3372
United States Court of Appeals,Eleventh Circuit.
February 02, 1999

1
Appeal From:  M.D.Fla. , No.96-00029-CR-ORL-18

2
Affirmed.

*
 Fed.R.App.P. 34(a); 11th Cir.R. 34-3