United States of America v. Lester E. Brown

United States Court of Appeals
For the Eighth Circuit
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No. 23-3353
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United States of America
Plaintiff - Appellee
v.
Lester E. Brown
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 25, 2024
Filed: November 25, 2024
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury found Lester Brown guilty of conspiracy to commit cyberstalking,
cyberstalking resulting in death, and being a felon in possession of a firearm. The
district court1 sentenced Brown to life plus 180 months’ imprisonment. On appeal,
1 The Honorable David Gregory Kays, United States District Court for the
Western District of Missouri.

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Brown challenges several of the district court’s evidentiary rulings. He further
argues that the evidence was insufficient to support two of his convictions. Finding
no reversible error, we affirm.
I.
Brown dealt marijuana in the Kansas City area. In 2013, Brown traveled to
Arizona with two of his associates—Christopher Harris and Ryan Cobbins. When
Harris and Cobbins returned from Arizona, they told their friend, Antwon Tolefree,
“[n]ot to ever deal with [Brown] no more.” Later in the year, Cobbins suddenly
disappeared. Brown told Harris and Tolefree that his cousin “had” Cobbins. In
exchange for Cobbins’s return, Harris paid Brown a large sum of cash. Nevertheless,
Cobbins was never to be heard from again as he was later found murdered. Upon
learning of Cobbins’s death, Harris stopped dealing marijuana and moved to
California. However, at some point, Harris returned to the Kansas City area and
resumed selling marijuana with Tolefree.
In February 2018, Tolefree and Harris unexpectedly ran into Brown at a mall.
Brown approached Harris, and the two spoke for a bit before Brown left. A short
time later, Brown returned and told Harris to call him because the number that Harris
had given him earlier was incorrect. Brown subsequently sent Tolefree and Harris
“threatening” messages over Snapchat. One Snapchat message told Harris that, if
he didn’t pay $10,000, he would “end up” like Cobbins. In a message to Tolefree,
Brown included a picture of a tracking device. Brown also asked his cousin, Michael
Young, to search for Tolefree’s address on his cellphone and to do a drive-by to look
for Tolefree’s car. In addition, Brown wrote the license plate number of Harris’s
girlfriend in Young’s phone.
Suspecting that Brown was tracking them, Harris and Tolefree took their
family members’ vehicles to auto shops to search for tracking devices. Harris also
stopped going to stores and hired Tolefree’s grandfather to be his driver. He told a
friend, Victor McVea, that he was worried that “people [were] trying to kill him,”

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and that he “was just going through a situation [involving] a friend” with “some low-
grade weed from Arizona.”
Later, Brown purchased two tracking devices from a company called SpyTec.
Brown activated one of the devices at his residence on March 11, 2018, and attached
it to Harris’s car. Between March 12 and 14, the device was tracked to places
frequented by Harris—his mother’s house, his daughter’s dance studio, his
daughter’s residence, and Tolefree’s house.
On March 14, Brown asked his cousins Ronnell Pearson and Young to “go
bust a move.” Brown drove Pearson and Young to a dance studio, where Brown
pointed out Harris’s car in the parking lot. The trio then drove to an apartment
complex. While waiting at the apartment complex, Brown and Young used their
phones to track Harris’s movements. When Brown and Young saw that Harris was
getting close to their location, the trio pulled out of the apartment complex and
followed Harris to a residential neighborhood. Harris was driving his eight year old
daughter to her mother’s house after a dance class. Once Harris pulled into the
driveway, the trio pulled up behind him. Brown and Young exited the vehicle, while
Pearson remained in the car.
One of the men asked Harris, “What’s that shit you was talking, cuz?” Harris
pleaded, “I’ve got my daughter with me, I’ve got my daughter with me.” The man
responded, “I ain’t trying to get her. I don’t give a fuck.” Gunshots then rang out.
Harris’s daughter ran into her mother’s house screaming, “They’re shooting at my
daddy. Mommy. Mommy, somebody’s shooting at my daddy.” Harris attempted to
follow his daughter into the house, but he was shot twice in the head and died on
scene. Pearson heard the gunshots but did not see who shot Harris. Brown and
Young reentered the vehicle, and Brown drove away. Young told Brown, “it wasn’t
supposed to go that way.”
Police officers examining the murder scene located an active electronic
tracking device with a visible fingerprint on the underside of Harris’s car. A forensic

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examiner concluded that the fingerprint belonged to Brown. The tracking device
was determined to have been purchased by Brown from SpyTec.
A grand jury indicted Brown for conspiracy to commit cyberstalking, 18
U.S.C. § 371; cyberstalking resulting in death, id. §§ 2261A, 2261(b); and being a
felon in possession of a firearm, id. §§ 922(g)(1), 924(a)(2). While in pretrial
detention, Brown openly bragged to others that he had killed Harris and that he
should have killed Harris’s daughter as well. He also obtained a cellphone, which
he used to call his “girls” and “homeboys.” Brown asked his “homeboys” to kill one
of the detectives on his case. Following a five-day trial, a jury found Brown guilty
on all counts. The district court sentenced Brown to life plus 180 months’
imprisonment.
II.
On appeal, Brown asserts that the district court erred when it admitted certain
testimony as well as evidence of his prior wrongful conduct. He also asserts that
there was insufficient evidence to convict him of conspiracy to commit cyberstalking
as well as cyberstalking resulting in death. We address each claim in turn.
A.
Brown contends that the district court erroneously admitted hearsay even
though no hearsay exception applied. Specifically, Brown takes issue with the
following statements: (1) Harris’s statement to McVea that “people [were] trying to
kill him”; (2) Harris’s statement to McVea that he “was just going through a situation
[involving] a friend” with “some low-grade weed from Arizona”; (3) Harris’s
statement to Tolefree “[n]ot to ever deal with [Brown] no more”; (4) Brown’s
Snapchat message to Harris that, if he didn’t pay $10,000, he would “end up” like
Cobbins; and (5) Tolefree’s testimony that he and Harris discussed the “threatening”
messages they received from Brown. Because Brown properly objected to the
district court’s consideration of these statements as hearsay, we review for an abuse

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of discretion. See United States v. Angeles-Moctezuma, 927 F.3d 1033, 1036 (8th
Cir. 2019).
Hearsay is an out of court statement offered to prove the truth of the matter
asserted. United States v. Graves, 756 F.3d 602, 604 (8th Cir. 2014) (citing Fed. R.
Evid. 801, 802). Hearsay is generally inadmissible as evidence because it is
unreliable and not subject to cross-examination in court. United States v. Thomas,
451 F.3d 543, 547 (8th Cir. 2006); Fed. R. Evid. 801 advisory committee’s notes to
proposed rules. However, the Federal Rules of Evidence provide exceptions to
admit hearsay under certain circumstances based “upon the theory that under
appropriate circumstances a hearsay statement may possess [sufficient]
circumstantial guarantees of trustworthiness.” Fed. R. Evid. 803 advisory
committee’s notes to proposed rules. One such exception is Federal Rule of
Evidence 803(3)’s state of mind exception. Under this exception, hearsay is
admissible when the declarant makes a statement regarding his or her current mental
or physical condition, sensation, emotion, thought, or plan. Fed. R. Evid. 803(3).
The exception does not apply to statements regarding past mental or physical
conditions. Id. Here, McVea testified that Harris made contested statements (1) and
(2)—that Harris feared “people [were] trying to kill him,” and that he “was just going
through a situation [involving] a friend” with “some low-grade weed from Arizona.”
These two statements clearly refer to Harris’s then current thought and mental
condition. Harris was not referring to a past mental thought or condition. Rather,
Harris’s statements refer to then present events. Thus, (1) and (2) are admissible
under Rule 803(3)’s state of mind exception.
Certain statements are not hearsay because they are not offered for their truth.
See Thomas, 451 F.3d at 548. Statements that are commands generally fall within
this category. Id. Harris’s statement to Tolefree “[n]ot to ever deal with [Brown]
no more” is a command that was not offered for its truth. See United States v.
Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009) (describing the statement
“[b]ring me some heroin” as a command). Indeed, Harris’s statement does “not

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assert a proposition that could be true or false.” Id. Thus, Harris’s statement to
Tolefree is not hearsay.
The Federal Rules of Evidence expressly provide that some statements are not
hearsay. See Fed. R. Evid. 801(d). Statements by an opposing party in an individual
or representative capacity fall within this category when they are offered against that
opposing party. Fed. R. Evid. 801(d)(2)(A). Here, statement (4) concerns Snapchat
messages made by Brown himself, and the Government offered Brown’s statements
against him. Thus, Brown’s Snapchat messages are not hearsay.
Lastly, even if the district court improperly admits hearsay evidence, we will
not reverse the district court’s evidentiary ruling if it is harmless error. See United
States v. Marrowbone, 211 F.3d 452, 455 (8th Cir. 2000). “An erroneous evidentiary
ruling does not [a]ffect a substantial right and is harmless error if, after reviewing
the entire record, we determine that the error did not influence or had only a slight
influence on the verdict.” Id. Even assuming (5)—Tolefree’s testimony that he and
Harris discussed the “threatening” messages they received from Brown—constitutes
inadmissible hearsay, we conclude that its admission did not sway the jury. See id.
(holding that the district court’s admission of hearsay testimony was harmless error
because the testimony “did not substantially sway the jury”). It is inconsequential
that Tolefree and Harris discussed the threatening messages they received from
Brown, especially given that the content of Brown’s messages is independently
admissible as statements by an opposing party.
Accordingly, we conclude that the district court did not abuse its discretion in
admitting the five statements into evidence.
B.
Brown asserts that the district court erroneously admitted evidence of his prior
wrongful conduct, including evidence that he was involved in Cobbins’s murder and
that he dealt marijuana with Harris. He argues that this evidence is inadmissible

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under Federal Rules of Evidence 404(b) and 403. Because Brown filed a motion in
limine to exclude the evidence on these bases, which the district court denied, we
review for an abuse of discretion. See United States v. Flenoid, 415 F.3d 974, 976
(8th Cir. 2005).
Under Rule 404(b), “[e]vidence of any other crime, wrong, or act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Rule 404(b) applies
only to “extrinsic” evidence. United States v. Mink, 9 F.4th 590, 607 (8th Cir. 2021).
It does not apply to evidence that is “intrinsic” to the charged offense. Id. Extrinsic
evidence “is extraneous and is not intimately connected or blended with the factual
circumstances of the charged offense.” United States v. Murry, 31 F.4th 1274, 1291
(10th Cir. 2022). On the other hand, evidence is intrinsic “when it is offered for the
purpose of providing the context in which the charged crime occurred.” Mink, 9
F.4th at 607. “Intrinsic evidence need not be necessary to the jury’s understanding
of the issues to be admissible.” United States v. Guzman, 926 F.3d 991, 1000 (8th
Cir. 2019) (internal quotation marks omitted). Indeed, intrinsic evidence is only
inadmissible “if such evidence clearly had no bearing on the case and was introduced
solely to prove the defendant’s propensity to commit criminal acts.” Id.
Here, Brown’s prior wrongful conduct unquestionably completes the story of
the charged crimes. See Mink, 9 F.4th at 607 (stating that intrinsic evidence is
admissible because it “completes the story or provides a total picture of the charged
crime”). Evidence pertaining to Brown and Harris’s past drug dealings provides
context as to why Brown threatened and stalked Harris. And evidence pertaining to
Cobbins’s murder provides context as to why Harris reasonably felt threatened by
Brown, which is an element of the cyberstalking resulting in death offense. Without
knowing who Cobbins was and what happened to him, a threat that Harris would
“end up” like Cobbins would have no significance for a jury. Thus, Brown’s prior
wrongful conduct is intrinsic evidence, and Rule 404(b) is inapplicable.

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As to Rule 403, it provides that a district court “may exclude relevant evidence
if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Brown asserts that the
probative value of his prior wrongful conduct is substantially outweighed by the
danger of unfair prejudice. But Brown does not identify any unfair prejudice
resulting from the admission of his prior wrongful acts. And, as discussed
previously, the evidence has great probative value as it completes the story of the
charged crimes. Therefore, we conclude that the district court did not abuse its
discretion in admitting Brown’s prior wrongful conduct.
C.
Finally, Brown argues that the evidence was insufficient to convict him of
conspiracy to commit cyberstalking or cyberstalking resulting in death. We review
sufficiency of the evidence challenges de novo, “viewing the evidence and the jury’s
credibility determinations in the light most favorable to its verdict and reversing only
if no reasonable jury could have found [the defendant] guilty.” United States v. Obi,
25 F.4th 574, 577 (8th Cir. 2022).
To prove Brown guilty of conspiracy to commit cyberstalking, the
Government had to show that (i) “two parties entered into an agreement or reached
an understanding to commit [cyberstalking]” and (ii) “at least one of the parties
overtly acted in furtherance of the agreement.” United States v. Anderson, 783 F.3d
727, 749 (8th Cir. 2015); see 18 U.S.C. § 371. Brown argues that he cannot be
convicted of conspiracy to commit cyberstalking because both Pearson and Young
testified that they did not know that Brown would kill Harris. But Brown was not
charged with conspiracy to commit cyberstalking resulting in death. Rather, he was
charged with conspiracy to commit cyberstalking, and there existed sufficient
evidence that Brown conspired with Young to commit cyberstalking. For instance,
Pearson testified that Brown and Young tracked Harris on their phones the day that
Harris was killed. He also testified that Brown and Young followed Harris to the

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daughter’s residence. Moreover, Young testified that, at Brown’s behest, he
searched for Tolefree’s address on his phone and drove by that address looking for
Tolefree’s car. Thus, a jury could reasonably infer that an agreement or an
understanding to cyberstalk Harris existed between Brown and Young, and that
Brown took overt acts in furtherance of that agreement or understanding. We
therefore conclude that there was sufficient evidence to convict Brown of conspiracy
to commit cyberstalking.
To prove Brown guilty of cyberstalking resulting in death, the Government
had to show that Brown, (i) “with the intent to kill, injure, harass, intimidate, or place
under surveillance with intent to kill, injure, harass, or intimidate another person,”
(ii) “use[d] the mail, any interactive computer service or electronic communication
service or electronic communication system of interstate commerce, or any other
facility of interstate or foreign commerce to engage in a course of conduct that” (iii)
“place[d] that person in reasonable fear of . . . death . . . or serious bodily injury,” or
“cause[d], attempt[ed] to cause, or would be reasonably expected to cause
substantial emotion distress to [that] person,” and (iv) that the person died as a result.
18 U.S.C. §§ 2261A(2), 2261(b)(1). We conclude that a jury could reasonably
conclude that all four elements were met. As to (i), the requisite intent can be
inferred from Brown’s numerous threats against Harris over Snapchat. As to (ii),
Brown placed electronic trackers on Harris’s car and sent him threatening messages
over Snapchat. As to (iii), Harris told others that he feared for his life and searched
family members’ cars for tracking devices. And, as to (iv), the Government
presented evidence that, on March 14, 2018, Brown stalked Harris using a tracking
device and ultimately killed him. Thus, the evidence was sufficient to support
Brown’s conviction.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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