* This order and judgment is not binding precedent, except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.

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 crossexamine him about his prior DWI conviction. The government

offered the evidence as proof of Chandler’s motive to evade

arrest.

Under FED. 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
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

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
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

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