UNITED STATES COURT OF APPEALS
Filed 9/19/96
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
v. ) No. 95-2241
) (D.C. No. CR95-189-HB)
DAVEY B. CHANDLER, ) (D. New Mexico)
)
Defendant-Appellant. )
ORDER AND JUDGMENT *
Before TACHA, REAVLEY ** and LUCERO, Circuit Judges.
Appellant Davey Chandler’s only complaint on appeal is that
the district court erred in allowing the government to cross-
examine him about his prior DWI conviction. The government
offered the evidence as proof of Chandler’s motive to evade
arrest.
Under F ED. R. EVID. 404(b), evidence of prior bad acts,
including prior criminal convictions, is not admissible to “prove
the character of a person in order to show action in conformity
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470.
**
The Honorable Thomas M. Reavley, United States Court of
Appeals, Fifth Circuit, sitting by designation.
therewith,” but is “admissible for other purposes, such as proof
of motive . . . .” We have construed the rule as calling for an
inclusive rather than exclusive approach to the admission of
evidence. 1
A party claiming error in the admission of evidence under
Rule 404(b) must clearly show an abuse of discretion by the
district court. 2 Here, the government offered a specific reason
for introducing evidence of the prior DWI, namely to show motive
to evade arrest. 3 There was a plain conflict in the evidence on
this issue. Chandler claimed that he did not pull over because
his radio was turned up and he did not hear or see the police car
behind him. On the other hand, Officer St. Clair testified that
he followed Chandler for approximately three miles at speeds of
up to 120 m.p.h. before Chandler pulled over, that his emergency
equipment is “very obvious,” and that he could see his flashers
reflecting off Chandler’s vehicle.
Chandler admitted to the prior DWI conviction and that he
understood the consequences of a second conviction. He was
separately charged and tried for driving under the influence of
1
United States v. Record , 873 F.2d 1363, 1374-75 (10th
Cir. 1989).
2
United Stated v. Morgan , 936 F.2d 1561, 1571 (10th Cir.
1991), cert. denied, 502 U.S. 1102 (1992).
3
See United States v. Martinez , 890 F.2d 1088, 1094 (10th
Cir. 1989), cert. denied, 494 U.S. 1059 (1990) (holding, in
prosecution for failure to appear, that district court was well
within its discretion in admitting evidence of prior criminal
conduct, since such conduct was “highly probative . . . on the
issue of [defendant’s] motive to avoid arrest . . . .”).
2
liquor and evading an officer. The district court twice
instructed the jury that the evidence was offered for the limited
purpose of showing motive, at the time the evidence was admitted
and in the final charge. 4 While the district court did not
explicitly balance the probative value of the evidence against
its potential for unfair prejudice, it implicitly did so by
hearing argument on the admissibility of the evidence and denying
defendant’s motion for mistrial. 5 In these circumstances we
cannot say that the district court committed a clear abuse of
discretion.
AFFIRMED.
Entered for the Court
Thomas M. Reavley
Circuit Judge
4
See United States v. Harrison , 942 F.2d 751, 760 (10th
Cir. 1991) (“[I]t is preferable for the district court to
instruct the jury as to the limited use of Rule 404(b) evidence,
both at the time the evidence is admitted and in the court’s
final charge.”).
5
United States v. Easter , 981 F.2d 1549, 1554 (10th Cir.
1992), cert. denied, 508 U.S. 953 (1993).
3