                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1449
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
John C. LaDue, II,                       *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 16, 2008
                                 Filed: April 9, 2009
                                  ___________

Before RILEY, BOWMAN, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       John C. LaDue, II, was convicted of unlawful possession of a firearm as a
previously convicted felon. On appeal, LaDue argues that the district court1 should
have excluded certain testimony because it was irrelevant or unfairly prejudicial. He
also argues that the evidence was insufficient to establish that he was in possession of
a firearm. We affirm.




      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
                                           I.

       We recite the evidence in a light most favorable to the verdict. After a night of
drinking with family members in Independence, Missouri, LaDue left his aunt’s house
in the car of his cousin, William Farris. LaDue was drunk, and Farris had agreed to
drive him home. During the car ride, LaDue became increasingly angry and
argumentative, accusing Farris of being a “snitch” for the police. LaDue punched the
car’s dashboard, prompting Farris to warn LaDue that he would have to walk home
if he did not calm down. After another outburst, Farris ordered LaDue out of the car
and left him on the side of the road at about 2:30 a.m.

      From there, LaDue walked to the home of his ex-brother-in-law, Jonathan
Prosser, and began pounding on the front door. Prosser came to the door but refused
to admit LaDue. LaDue continued beating and kicking the door, threatening to break
it down. After Prosser announced that he was calling the police, LaDue shouted some
obscenities and left the residence.

       In response to Prosser’s call, Officer Allen Hiegert arrived at Prosser’s home
at approximately 4:15 a.m. Hiegert spoke with Prosser and then returned to his patrol
car. At around 4:50 a.m., while checking the area for signs of LaDue, Hiegert
received a report of “shots fired” in a nearby residential neighborhood. Hiegert
decided to respond to the call and began driving toward the neighborhood. As he
approached the reported location of the fired shots, Hiegert saw a man, later identified
as LaDue, running at full speed across the street. Hiegert left his car and pursued
LaDue onto a private driveway. There, Hiegert heard noise coming from behind a
parked vehicle. Moving in the direction of the noise, Hiegert identified himself as a
police officer and drew his service weapon. He spotted LaDue hiding behind the front
of the vehicle, in a crouched position. Realizing that he had been seen, LaDue stood
up with his hands raised, and Hiegert arrested him. Police found a .380-caliber
semiautomatic pistol underneath the vehicle’s front bumper, where LaDue’s feet had

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been. The owner of the residence and the vehicle, told police that the pistol did not
belong to him, and that he had not seen it when he returned from work the previous
evening at around 5:30 p.m.

       LaDue was charged with unlawful possession of a firearm as a previously
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). At trial, over
LaDue’s objections, Prosser and Hiegert testified about LaDue’s aggressive behavior
at Prosser’s home, and Hiegert testified that he was responding to a report of “shots
fired” when he arrested LaDue. A jury convicted LaDue, and the district court
sentenced him to 180 months’ imprisonment.

                                          II.

       LaDue first challenges the admission of Hiegert’s testimony that he was
responding to a report of “shots fired.” LaDue contends that the testimony should
have been excluded as irrelevant, because it was not probative of any essential element
of the charged offense. According to LaDue, the district court should have instructed
Hiegert to testify simply that he had received a report of a disturbance, without
mentioning gunfire. We review the district court’s evidentiary ruling for abuse of
discretion. See United States v. Lewis, 759 F.2d 1316, 1328 (8th Cir. 1985).

       Under Federal Rule of Evidence 402, “[e]vidence which is not relevant is not
admissible.” Rule 401, in turn, defines “relevant evidence” as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”
Fed. R. Evid. 401. We have recognized that “[a] jury is entitled to know the
circumstances and background of a criminal charge,” and have permitted the
introduction of evidence “providing the context in which the crime occurred, i.e. the
res gestae.” United States v. Savage, 863 F.2d 595, 599 (8th Cir. 1988) (internal
quotation omitted).

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       In felon-in-possession cases, we have defined the scope of the res gestae to
include the events immediately preceding the defendant’s arrest, see United States v.
Tate, 821 F.2d 1328, 1331 (8th Cir. 1987); Carter v. United States, 549 F.2d 77, 78
(8th Cir. 1977) (per curiam), as well as the circumstances of the arrest itself. See
Savage, 863 F.2d at 599; United States v. Moore, 735 F.2d 289, 292 (8th Cir. 1984).
Although res gestae evidence sometimes implicates the defendant in other acts, we
have concluded that where acts are inextricably intertwined with the charged crime,
they are not extrinsic, and thus not merely character evidence governed by Federal
Rule of Evidence 404(b). United States v. O’Dell, 204 F.3d 829, 833 (8th Cir. 2000).

       Applying these principles here, we conclude that the district court did not abuse
its discretion in treating Hiegert’s testimony about the report as relevant evidence.
That the report concerned “shots fired” provided the jury with the proper context in
which to understand Hiegert’s actions. It helped to explain Hiegert’s decision to leave
his patrol car and pursue an unidentified man running across the street, and his
decision to draw his service weapon. Without an understanding of the serious nature
of the call to which Hiegert was responding, the jury could have been confused or
misled by a seeming overreaction to a routine disturbance call. We therefore conclude
that the district court reasonably allowed Hiegert’s testimony as res gestae evidence.

       LaDue maintains that even if the testimony was relevant, it should have been
excluded under Federal Rule of Evidence 403, because its probative value was
substantially outweighed by the danger of unfair prejudice. According to LaDue, the
testimony left the jury with the impression that he had discharged a firearm in a
residential neighborhood where children lived. This impression, LaDue contends,
unfairly inflamed the jury and motivated it to convict him regardless of what the
evidence showed.

       We see no abuse of discretion under Rule 403. Indeed, LaDue’s interpretation
of the evidence actually presumes that the evidence carries a greater probative value

                                          -4-
than simply explaining Hiegert’s actions. Because LaDue did not object to the
testimony on hearsay grounds, or seek a limiting instruction, the jury was free to
consider the report of “shots fired” as evidence that shots recently had been fired in
the neighborhood where LaDue was arrested. LaDue contends that the jury might
even have inferred that he fired the shots. But if the evidence supports this inference,
then it is highly probative. If LaDue fired a gun on the night in question, then it is
more likely that he possessed the gun found at his feet, and less likely that his
proximity to the gun was mere coincidence. We therefore conclude that the probative
value of Hiegert’s testimony was not substantially outweighed by any unfair
prejudice.

       LaDue next challenges the admission of Prosser’s and Hiegert’s testimony
about LaDue’s aggressive behavior at Prosser’s home. LaDue contends that the
evidence was neither probative of whether he possessed a firearm nor part of the res
gestae of his arrest later that night. He asserts that the disturbance at Prosser’s home
and LaDue’s subsequent arrest were “entirely unrelated,” because the two events
occurred almost an hour apart and a mile away from each other, and Hiegert realized
only after making the arrest that LaDue was the same man who had caused the earlier
disturbance. Even if the testimony was relevant, LaDue argues, it should have been
excluded under Rule 403 because the unfair prejudice of evidence that he was an
“angry and violent man” substantially outweighed its probative value.

       Even assuming for the sake of argument that the district court abused its
discretion in admitting this testimony, any error was harmless. An improper
evidentiary ruling is a nonconstitutional error that must be disregarded under Federal
Rule of Criminal Procedure 52(a), if it does not have a substantial influence on the
verdict. United States v. Lupino, 301 F.3d 642, 645 (8th Cir. 2002); United States v.
DeAngelo, 13 F.3d 1228, 1233 (8th Cir. 1994); see Kotteakos v. United States, 328
U.S. 750, 764-65 (1946). Although the testimony of Prosser and Hiegert about the
disturbance cast LaDue in a negative light, other testimony to the same effect was

                                          -5-
properly before the jury. LaDue’s violent and aggressive tendencies were also
described by William Farris, a defense witness, who cited LaDue’s increasingly
belligerent behavior as the reason he ordered LaDue out of his car. LaDue suggests
that he might not have called Farris to testify if the district court had excluded the
testimony of Prosser and Hiegert, but in determining whether an error was harmless,
we review “the trial record as a whole,” United States v. Hasting, 461 U.S. 499, 509
(1983), without considering whether the presentation of evidence would have played
out differently absent the error. See United States v. Crawford, 130 F.3d 1321, 1324
(8th Cir. 1997). Because the disputed testimony of Prosser and Hiegert was “to the
same effect as other testimony properly before the jury,” any error in admitting it was
harmless. United States v. White, 11 F.3d 1446, 1451 (8th Cir. 1993).

       Finally, LaDue argues that the evidence was insufficient to establish that he
possessed a firearm. We may reverse a conviction for insufficiency of the evidence
only if, viewing the evidence in the light most favorable to the verdict, no reasonable
jury could have found the defendant guilty beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); United States v. Washington, 318 F.3d 845, 852
(8th Cir. 2003). In this case, the government presented evidence that LaDue ran from
an approaching patrol car and hid from police on a private driveway. Shortly
thereafter, LaDue was arrested, and police found a firearm at the location where he
had been hiding. The owner of the property where LaDue was found disclaimed any
knowledge of the firearm, and testified that the gun was not present the previous
evening. A reasonable jury could find on this record that LaDue possessed the
firearm.

      The judgment of the district court is affirmed.
                     ______________________________




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