*After examining appellant’s brief and the appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES L. WATSON, Defendant-Appellant. No. 97-3143 (D.C. No. 96-20078-01-EEO) (D. Kansas)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.
Charles L. Watson (“Watson”) was convicted by a jury of one count of theft of mail. (See Aplt. App. at 3.) Watson appeals his conviction o n the grounds that the jury was improperly exposed to evidence of prio r criminal acts, in violation of Fed. R. Evid. 404(b), and that his conviction was b ased upon insufficient evidence. We affirm.1 The only direct access this court has to the trial record in this case is via the

limited portions of the trial record included in Watson’s Appellant’s Appendix. - 2 - Background Watson’s conviction stems from an incident that occ urred at his workplace, the Kansas General Mail Facility in Kansas City, on the night of June 6, 1996. a postal inspector observed Watson remove letters containing food stamps from a postal tray and place them in his waistband. (See Aplt. App. at 14-16 (Tr. Rec. at 24-26).) 1 As Watson moved towards an exit, the inspector u ndertook to apprehend him. During the course of the apprehensi on, Watson removed two food stamp letters from his waistband and threw the m in a nearby mail hamper. (See Aplt. App. at 17-18.) A number of postal employee s saw Watson throw the letters into the mail hamper as he was being appreh ended. (See id. at 20-30.) Watson was subsequently indicted for theft of mail and given a jury trial. During cross-examination at trial, the Government’s prosecutor asked Watson if there were any criminal charges pending against him in the state of Louisiana. (See Aplt. App. at 39.) Before Watson could answer def initively either way, his attorney received permission to approach the bench. During this side bar Watson’s attorney objected to the question and aske d for a mistrial. The Government’s prosecutor sought to have the court ad mit evidence of Louisiana criminal charges pending against Watson under Fed R. Evid. 404(b). The court- 3 -

found that the prejudicial effect of any evidence o f such charges would outweigh its probative value, and prohibited the Government prosecutor from continuing with that line of questioning. At the same time th e court denied Watson’s motion for a mistrial. (See id. at 39-41.) Apparently, at this juncture no curati ve instruction was asked for nor was one given. The jury subsequently found Watson guilty. Watson now appeals his conviction.

Motion for mistrial This court reviews the trial court's ruling on moti ons for mistrial under an abuse of discretion standard. See United States v. Gabaldon , 91 F.3d 91, 94 (10th Cir. 1996). At trial, Watson’s attorney moved fora mistrial on the basis that the jury was severely prejudiced against Watson merely by hearing the Government’s question. On appeal, Watson argues that the court abused its discretion by not granting a mistrial upon the Government’s improper admission of 404(b) prior conduct evidence against him. The latter claim ign ores the fact that it is the court that admits evidence, not the parties , and here the court explicitly did not admit any evidence of state criminal charges against Wats on. Watson never answered the question and the court forbade the Government f rom mentioning this evidence again. No evidence was submitted to the jury “from which it was allowed to draw- 4 -

any impermissible inference,” thus no violation of the Federal Rules of Evidence occurred. See Greer v. Miller , 483 U.S. 756, 764-65 (1987). Even when no improper evidence has been admitted, t he mere fact of an improper question by the prosecution can serve as t he basis for a mistrial if the impropriety is “of sufficient significance to resul t in the denial of the defendant’s right to a fair trial.” Id. at 765 (quotations omitted). The prejudicial effe cts of an improper question may be cured by the court’s immed iate response to a timely objection and the issuance of curative instructions . See id. What’s more, the improper question must not be taken in isolation, b ut must be seen in the context of the entire case. See id. ; Gabaldon , 91 F.3d at 94. When the prejudicial impact is slight in comparison to the weight of the eviden ce against the defendant, the prejudice is harmless. See Greer , 483 U.S. at 765. In this case, the court took prompt action to preve nt the Government from pursuing the improper line of questioning any furth er. From the portion of the transcript provided us by Watson, it does not appea r that the court issued a curative instruction, as it could have, nor did Wat son’s counsel request one. Because we do not have the entire trial transcript before us on appeal we do not know if the court issued a curative instruction lat er on at the jury instruction stage. However, even if the jury was prejudiced t o some extent by the Government’s improper question, any impact was harm less in light of the- 5 -

evidence that was submitted to us in Watson’s Appen dix establishing that Watson did in fact commit the crime with which he was char ged. The court did not abuse its discretion in refusing to order a mistrial.

Sufficiency of the evidence Evidence is sufficient to support a criminal convic tion if, viewing the evidence in the light most favorable to the Governm ent, a rational trier of fact could have found the elements of the crime beyond areasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (1979). Moreover, “the failure to file a trial transcript precludes review of a conviction f or sufficiency of the evidence.” United States v. Vasquez , 985 F.2d 491, 495 (10th Cir. 1993). Because Wats on has failed to file a complete trial transcript as p art of the record on appeal, we rule his sufficiency of the evidence claim to be wa ived.

Conclusion For the reasons stated above, the jury’s conviction of Watson for theft of mail is AFFIRMED

.- 6 -

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge