                    NONPRECEDENTIAL DISPOSITION
                      To be cited only in accordance with
                              Fed. R. App. P. 32.1



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Argued November 9, 2006
                             Decided January 23, 2007

                                      Before

                   Hon. DANIEL A. MANION, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. TERENCE T. EVANS, Circuit Judge

No. 06-1677

UNITED STATES OF AMERICA,                    Appeal from the United States District
         Plaintiff-Appellee,                 Court for the Southern District of Indiana,
                                             Indianapolis Division.

              v.                             No. 1:05CR00068-001

CHARLES A. BROWN,                            Sarah Evans Barker,
         Defendant-Appellant.                Judge.


                                     ORDER

       Charles Brown, a felon, was found guilty by a jury of possessing a firearm in
violation of 18 U.S.C. § 922(g)(1). Brown challenges the admission of evidence
under Federal Rule of Evidence 404(b) that he previously was convicted of domestic
battery, a misdemeanor. Although we find that the district court erred in admitting
that evidence, we affirm his conviction because the error was harmless.

       Just before midnight on March 7, 2005, Donald Hawk, a deputy sheriff in
Marion County, Indiana, responded to a 911 dispatch regarding a break-in at the
apartment of April Propes, a former girlfriend of Brown. As Deputy Hawk shined
his flashlight through the broken glass in the back door of the apartment, he saw
someone in dark clothing moving through the apartment. Hawk entered the
No. 06-1677                                                                    Page 2
apartment, then saw a man, later identified as Brown, exit a bedroom wearing a t-
shirt and boxer shorts. Propes, who had hidden in her locked bedroom with her
two-year-old daughter, Anha, after calling 911, opened her bedroom door once she
realized that the police had arrived. Deputy Hawk asked Propes whether Brown
was supposed to be there, and she said no.

       Propes and Brown lived together previously, and Brown fathered Anha. The
romantic relationship had ended in 2003, but in February 2005 Propes allowed
Brown to stay at her apartment temporarily. Brown, though, reneged on a promise
to pay some expenses, so Propes told him to move out and he did. Brown broke into
the apartment approximately one week later.

       When Propes told Deputy Hawk that Brown was not supposed to be in her
apartment, Hawk placed Brown under arrest. As Brown got dressed, Hawk noticed
a handgun case among his clothing, which prompted a search. He found a knife
case, a rope, a pair of gloves, and a loaded gun; the gun was found in a crib in the
bedroom from which Brown emerged after Hawk had entered the apartment.
Propes had not seen any of these items before and did not know how they got into
her apartment.

       Brown was charged with possessing the gun in violation of § 922(g)(1). At
trial he stipulated that he is a felon and that the gun in question had traveled in
interstate commerce, leaving for the jury to decide only whether he possessed the
gun. See 18 U.S.C. § 922(g)(1); United States v. Alanis, 265 F.3d 576, 591 (7th Cir.
2001). Prior to trial the government gave notice that it would seek to introduce
evidence of Brown’s prior misdemeanor conviction for domestic battery, which
stemmed from a physical attack on Propes in August 2003. The government argued
that this conviction helped establish Brown’s motive for possessing the gun as well
as his intent, and the district court ruled the evidence admissible.

       At trial, in addition to describing the night of the break-in as related above,
Propes testified that in August 2003 Brown had tried to force her off the road with
his car, then grabbed her, scratched her, pulled her hair, and tore her clothing. The
government introduced a record documenting that Brown had been convicted of
domestic battery, a misdemeanor, in connection with that episode. The district
court overruled Brown’s renewed objection and admitted the evidence but with a
limiting instruction that the jury should consider the evidence of the conviction only
to the extent it might help show “the defendant’s intent or his motive or his
knowledge or the absence of mistake” in connection with the charged offense.

      The defense called only one witness at trial. Brown’s brother, Anthony
Bellamy, testified that he knew that the rope and gloves belonged to Brown because
No. 06-1677                                                                      Page 3
Brown had used the items on the day of the break-in or possibly the day before to
help Bellamy move some furniture. The jury ultimately found Brown guilty.

       Brown’s sole claim on appeal is that the district court erred by admitting the
evidence of his prior conviction for domestic battery. Rule 404(b) provides that
evidence of prior bad acts may be admissible to prove motive or intent, among other
things, but not to prove a defendant's propensity to commit the charged offense.
Such evidence is admissible only if it (1) helps establish a matter in issue, (2) is
similar enough and close enough in time to the charged offense to be relevant, (3) is
sufficient for the jury to find by a preponderance that the defendant committed the
prior act, and (4) is not unfairly prejudicial. See United States v. Sebolt, 460 F.3d
910, 916 (7th Cir. 2006); United States v. Macedo, 406 F.3d 778, 793 (7th Cir. 2005).
Brown apparently concedes that his misdemeanor conviction meets the third prong
of this test, but he argues that it fails to meet the first, second, and fourth. We
agree with Brown that this test cuts in his favor, and the district court should
therefore have excluded the evidence of his prior conviction.

       With respect to the first prong, the government needed to show that Brown’s
altercation with Propes in 2003—which did not involve a gun—was relevant to his
motive or intent to possess a gun more than a year-and-a-half later. Although
evidence of a prior crime may sometimes be relevant in establishing a motive to
possess a firearm, see, e.g., United States v. Joy, 192 F.3d 761, 768 (7th Cir. 1999),
the connection between the prior crime and the gun possession is too attenuated in
this case. In Joy, for example, the defendant committed a burglary hours before his
arrest for possession of a firearm, and there was evidence that he possessed the gun
during the burglary. Id. We held that evidence connecting the defendant to the
burglary was relevant in establishing his motive and knowing possession of the gun.
Id. But in Brown’s case the gun possession and the prior crime were separated by
eighteen months rather than a few hours, and Brown did not have a gun when he
assaulted Propes. We are therefore unpersuaded that the prior crime tends to show
motive or intent or anything other than Brown’s propensity to commit violent crime.


       The second prong of our analysis under Rule 404(b) requires that the prior
bad act be sufficiently close in time and character to the charged offense. See
Sebolt, 460 F.3d at 916, Macedo, 406 F.3d at 793. Here, the misdemeanor domestic
battery and the gun possession—separated by eighteen months—were relatively
close in time, see, e.g., United States v. Puckett, 405 F.3d 589, 596-97 (7th Cir.) (six
years), cert. denied, 126 S. Ct. 252 (2005); United States v. Tringali, 71 F.3d 1375,
1379 (7th Cir. 1995) (nine years), but they are too dissimilar to satisfy this prong.
Arguing to the contrary, the government contends that both the prior crime and the
break-in were “crimes of violence” that prompted Propes to call the police, but the
relevant question is whether the physical assault and the gun possession—not the
No. 06-1677                                                                       Page 4
break-in—are similar enough. Brown did not have a gun when he physically
assaulted Propes, and he did not physically assault Propes on the night that he
possessed the gun. Although the prior act need not be a duplicate of the charged
offense, United States v. Long, 86 F.3d 81, 84 (7th Cir. 1996), Brown’s crimes are too
dissimilar given that the only common characteristic linking them is that Propes
was the victim of the first crime and was present during the second.

      Under the fourth prong, evidence will only be admitted if it is not unfairly
prejudicial. The evidence of Brown’s prior misdemeanor was unfairly prejudicial
because, as discussed above, it showed only a propensity for violence and was not
probative of any matter in issue.

       Nevertheless, we affirm Brown’s conviction because the district court’s error
was harmless. “The test for harmless error is whether, in the mind of the average
juror, the prosecution’s case would have been significantly less persuasive had the
improper evidence been excluded.” See United States v. Owens, 424 F.3d 649, 656
(7th Cir. 2005) (internal quotation marks omitted). Here, the prior conviction adds
very little to the disturbing facts of the case that were proved at trial, and a rational
jury would have convicted Brown even without the evidence of the prior crime. See
Fed. R. Crim. P. 52(a); United States v. Brown, 250 F.3d 580, 586 (7th Cir. 2001).
Deputy Hawk and Propes both testified that Brown broke into Propes’s apartment
late at night. When Hawk entered the apartment, he saw Brown leaving a bedroom
in which Hawk later found a handgun case and a gun. Propes confirmed that
Brown was walking out of that bedroom when Hawk entered the apartment. Only
Propes and her young daughter lived in the apartment, and Propes had never seen
the gun before. In addition to the gun and gun case, police recovered a knife case, a
rope, and a pair of gloves. Brown’s own brother testified that the rope and gloves
belonged to Brown. A rational jury would have convicted Brown of possessing the
firearm based on this overwhelming evidence.

                                                                           AFFIRMED.
