### The Honorable William A. Knox, United Sta tes Magistrate Judge 1 

### for the Western District of Missouri. The parties consented t o trial of the case before a magistrate judge pursuant to 28 U.S.C. § 636(c). ____________ No. 95-1381

____________ Melvin Eugene Duckworth, * * Appellee, * * v. * * Appeal from the United States John H. Ford, * District Court for the * Western District of Missouri Appellant. * * Richard C. Rice, * * Defendant. *

____________ Submitted: November 16, 1995 Filed: May 15, 1996

____________ Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.

____________ McMILLIAN, Circuit Judge.

John H. Ford appeals from a final judgment entered in the Unite d States District Court for the Western District of Missouri, upon a jur y 1 verdict, in favor of Melvin Eugene Duckworth in this civil rights action. For reversal, Ford argues there was insufficient evidence as a matter of law to support the jury verdict and that the district court abused it s discr etion in admitting into evidence certain information about th e judgment in

### -2-

another case involving Ford. For the reasons discussed below, we affirm the judgment of the district court.
In 1988 Duckworth and Ford were majors in the M issouri state highway patrol. The superint endent was about to retire, and Ford and C.E. Fisher were rivals for the p osition. Duckworth supported Fisher. In early 1988 Ford requested an employee of the highway patrol ’s communications division to periodically “sweep” his office telephone. In May 1988 the employe e discovered a device of some kind on Ford’s offic e telephone. The employee removed the device and reported the discovery to Ford. Ford asked th e employee not to tell anyone about the device; however, the employee later told his supervisor about the device. Ford suspected the device could hav e come from the highway patrol’s Division of Drug & Crime Control (DDCC) , which Duckworth commanded. Ford told several fellow highway patro l officers about the discovery of the device and a lso reported the discovery to the su perintendent. In June 1988 the governor nominated Ford a s superintendent. Ford reported the discovery of the device to the stat e director of public safety and the assistant director of public safety.
In early July 1988 Duckworth and Fisher heard t hat there were rumors circulating within the highway patrol that they were “in trouble” and woul d be demoted and transf erred because they had “bugged” or wiretapped Ford’s office telephone. Duckworth talked to the retiring superintendent about the rumors and the re tiring superintendent told Duckworth that the device
was not a “bug.” A highway patrol criminalist and the FBI later identifie d the device as a “clic k suppressor,” a type of telephone equipment and not a monitoring device.

At a mid-July 1988 staff meeting the retiring superintenden t describ ed the wiretap rumors as Ford’s problem. Duckworth and Fishe r requeste d an FBI investigation, but Ford denied the request. For d officially became the acting superintendent on August 1, 1988.

### -3-

The wiretap rumors continued to circulate through the fall and winter of 1988. In 1989 the state senate refused to confirm Ford’s appointment unti l litigation involving Ford and another member of the highway patrol had bee n res olved. The jury in that case found against Ford, and the governo r withdrew Ford’s nomination.

Duckworth testified that the wiretap rumors adversely affected his physical and mental h ealth. He feared that his career had been ruined by the rumors, and he was under considerable stress and very depressed
. Duckworth suffered a heart attack in November 1988 and had bypass surgery in June 1 989. He took long-term disability status and left the highwa y patrol in May 1990.

Duck worth subsequently filed this civil rights action in federa l district court allegi ng that Ford had violated his first amendment rights by spreading the wiretap rumors in retaliation for his supporting Fisher for th e superintendent position and that this retaliation caused hi s constr uctive discharge. The district court denied defense motions fo r summar y judgment on the basis of qualified immunity, holding tha t Duckworth’s opposition to Ford and his support of Fisher was protecte d speech, e ven if he had a personal interest in Fisher’s success, the la w regarding first amendment retaliation claims was clearly established i n 1988, and Ford was not entitled to judgment as a matter of law on the issu e of motive. We affirmed. Duckworth v. Ford , 995 F.2d 858 (8th Cir. 1993).

At trial, Duckworth, Ford, several highway patrol officers, stat e investigators, Duckworth’s wife, and his doctors testified about the event s at issue and their effect on Duckworth’s physical and mental health. In addition, the district court admitted into evidence certain informatio n about the litigation and jury verdict in favor of the plaintiff and agains t Ford in another case, Darnell v. Ford , 903 F.2d 556 (8th Cir. 1990). The jury found in favor of Duckworth and against Ford and awarded Duckwort h damages in the

### -4-

amount of $1,176,000.00. Post-trial motions for judgment as a matter of law or for new trial were denied. This appeal followed.
First, Ford argues there was insufficient evidence as a matter of la w to support the jury verdict that he circulated the wiretap rumors. H e argues that the jury verdict could only have been the result of speculatio n and conjecture becaus e there was no evidence that he accused Duckworth of tapping his office te lephone, or that he circulated the wiretap rumors or urged any of his fell ow highway patrol officers to circulate such rumors,
or that he had any motive to retaliate against Duckworth for supportin g Fisher.

Ford moved for judgment as a matter of law at the close of th e plainti ff’s case but failed to renew the motion at the close of all th e evidence. Ford’s fai lure to renew the motion for judgment as a matter of law at the close of all the evidence operated as a waiver of th e sufficiency of the evidence issue. Fed. R. Civ. P. 50(b); see, e.g., Smit h
v. Ferrel , 852 F.2d 1074, 1075-76 (8th Cir. 1988). However, th e sufficiency of the evidence was raised in the alternative motion for new trial which was denied by the district court. S ee, e.g., Harris v. Zurich Insurance C o. , 527 F.2d 528, 529-30 & n.1 (8th Cir. 1975). We hav e reviewed the record and hold the district court did not abuse it s discret ion in denying the motion for new trial on the ground o f insuff icient evidence. There was evidence that Ford knew that Duckwort h sup ported Fisher; Ford told several highway patrol officers that he ha d found a device on his office telephone and sugge sted that the device could have come from DDCC, the division commanded by Duckworth; Ford took n o acti on to counter the wiretap rumors once he learned that his offic e telephone had not been tapped; and Duckworth was injured by the wireta p rumors. The jury could have reasonably inferred from the evidence tha t Ford acted with the intent to retaliate against Duckworth for supporting Fisher.

### -5- Ford n ext argues the district court abused its discretion i n admitting into eviden ce certain information about the judgment in another case, Darnell v. Ford , as evidence of other wrongs or acts under Fed. R. Evid. 404(b). He arg ues the two cases are not factually similar and that this evidence improperly suggested that he was someone who had a propensit y to retaliate, which i s exactly what Fed. R. Evid. 404(b) prohibits. Ford also argues that the district court should have excluded this evidenc e because its probative value was substantially outweighed by the danger of unfair prejudice.
We hold the district court did not abuse its di scretion in admitting this evid ence. Under Fed. R. Evid. 404(b), evidence of other wrongs o r acts is admissible if it is “(1) relevant to a material issue, (2 ) est ablished by a preponderance of the evidence, (3) more probative tha n prejudi cial, and (4) similar in kind and close in time to the events a t issue.” United States v. Hazelett , 32 F.3d 1313, 1319 (8th Cir. 1994) , citing King v. Ahrens , 16 F.3d 265, 268 (8th Cir. 1994). The two cases ar e factually similar. I n Darnell v. Ford the plaintiff was a captain in the state highway patrol who claimed that Ford had violated his first amendmen t right to free speech by recommending his demotion because he had opposed For d’s candidacy for superintendent. The jury found for the plaintiff
. The events at issue i n Darnell v. Ford occurred at about the same time as the events at issue in the present case. Evidence that Ford had retaliate d against someone else at about the same time and under similar circumstance s is evidence from which the jury could reasonably infer that Ford had a similar motive or intent to retaliate against Duckworth. Cf. Estes v. Dic k Smith Ford, Inc. , 856 F.2d 1097, 1103 (8th Cir. 1988) (other incidents of emp loyment discrimination). We cannot say that its probative value wa s substan tially outweighed by its prejudicial impact. We note that th e dist rict court cautioned the jury about the limited relevance of th e judgment in Darnell v. Ford before the opening s tatements and again before the cross-examination of William

### -6-

Darnell , who testified as a witness in the present case and who was th e plaintiff in Darnell v. Ford
. Accordingly, we affirm the judgment of the district court.
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.