                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 11 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MARIA DE JESUS CERCA, Friend
    and Mother of Iris Fuentes, David
    Fuentes, Dario Fuentes, and Ulises
    Cerca Fuentes, minor children,

                Plaintiff - Appellant,

    v.                                                   No. 00-3257
                                                    (D.C. No. 98-2408-CM)
    DAVE THOMAS, in his individual                        (D. Kansas)
    capacity; CITY OF TOPEKA,
    KANSAS,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      The surviving children of David Fuentes brought a 42 U.S.C. § 1983 civil

rights action against the City of Topeka, Kansas, and numerous other Topeka law

enforcement personnel, including Dave Thomas, a City of Topeka police officer.

During the execution of a search warrant at Mr. Fuentes’ residence, Mr. Thomas

fatally shot Mr. Fuentes. The district court granted partial summary judgment as

to some defendants and some claims, but denied summary judgment with respect

to plaintiffs’ claim that Mr. Thomas used excessive force. After a trial, the jury

returned a verdict for the remaining defendants. The parties are familiar with the

facts; thus, we do not repeat them here. Because plaintiffs have provided an

insufficient record to enable us to address their challenge to certain jury

instructions, and because we conclude the district court did not abuse its

discretion in admitting certain evidence, we affirm.


                                             I.

      On appeal, plaintiffs first contend the district court erred in giving certain

jury instructions. When considering a party’s challenge to jury instructions, our

initial inquiry is whether the party properly preserved that issue for appeal by

objecting at the district court level to the instruction on the same grounds raised

on appeal. Comcoa, Inc. v. NEC Tels., Inc.        , 931 F.2d 655, 660 (10th Cir. 1991);

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see also Fed. R. Civ. P. 51 (stating that “[n]o party may assign as error the giving

or the failure to give an instruction unless that party objects thereto before the

jury retires to consider its verdict, stating distinctly the matter objected to and the

grounds of the objection.”). Further, litigants in this circuit are required to

identify in their brief where issues on appeal were raised and ruled upon.

10th Cir. R. 28.2(C)(2) (requiring parties to identify where issues on appeal were

raised and ruled upon) and 10th Cir. R. 28.2(C)(3)(b) (noting that “[b]riefs must

cite the precise reference in the record where a required objection was made and

ruled on, if the appeal is based on . . . the giving of or refusal to give a particular

jury instruction.”). We may refuse to review alleged error if the party seeking

review fails “to include and reference the portion of the record wherein their

objection and the district court’s ruling thereon may be found.”     Jetcraft Corp. v.

Flight Safety Int’l , 16 F.3d 362, 366 (10th Cir. 1993).

       Here, plaintiffs fail to identify where in the record they objected to these

jury instructions or where the district court ruled on their objection. Having

carefully reviewed the record on appeal, we conclude that plaintiffs have not

provided the court with these relevant trial transcripts.    See 10th Cir. R.

10.1(A)(1). We do not know whether plaintiffs did, in fact, object to these

instructions, whether they did so on the specific grounds raised on appeal, or the

basis for the district court’s ruling. Thus, we are unable to consider plaintiff’s


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contentions regarding the jury instructions.         See Jetcraft Corp , 16 F.3d at 366;

Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979 (10th Cir. 1992).          1




                                               II.

       Plaintiffs next contend that the district court erred by admitting evidence

suggesting that Mr. Fuentes sold illegal drugs. The district court initially granted

plaintiffs’ motion in limine to exclude evidence that Mr. Fuentes had sold illegal

drugs or that an informant had purchased cocaine from him on the basis that the

prejudicial effect of such evidence would outweigh the probative value.            See

Fed. R. Evid. 403. During trial, the district court did allow the defense to present

evidence that Mr. Thomas was aware the search warrant had been executed

pursuant to a drug investigation. Further, after testimony from a psychiatrist

about the psychological damages suffered by Mr. Fuentes’ children as a result of

witnessing their father’s killing, the district court allowed the defense to ask the

psychologist whether, in general, drug use, drug sales and criminal conduct in a

home would set a child up for an unhappy life. On cross-examination by

plaintiffs’ counsel, the psychologist stated that he did not know whether or not

Mr. Fuentes’ children had been exposed to any drug use or criminal activity in the


1
       If plaintiffs are attempting to claim the district court somehow erred in its
summary judgment ruling, they have failed to provide the court with the necessary
record, and they point this court to no claimed factual or legal error with respect
to that ruling.

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home. Ruling that the plaintiffs had opened the door on cross-examination, the

district court allowed the defense to ask the psychologist if he was aware that

Mr. Fuentes was involved in drug activity and had involved one of his children in

drug sale activity. The psychologist denied any such knowledge and testified that

such information would not alter his opinion as to the emotional damage suffered

by the children.

       Plaintiffs contend that the district court failed to adhere to its pre-trial

in limine order by the admission of this evidence, which was unduly prejudicial

and should have been excluded under Rule 403. The decision to admit or exclude

evidence under Rule 403 is within the sound discretion of the trial court, and will

not be reversed by this court absent a clear abuse of discretion.    Getter v.

Wal-Mart Stores , Inc. , 66 F.3d 1119, 1124 (10th Cir. 1995). We see no abuse of

the district court’s discretion here.

       In admitting the evidence that the search warrant was based on a drug

investigation, the district court properly recognized that the nature and severity of

the alleged crime were relevant circumstances considered by Mr. Thomas in

executing the search warrant. To minimize any undue prejudice, the court took

care to exclude any evidence indicating Mr. Fuentes was involved in drug activity

and to allow only the admission of those facts known to Mr. Thomas at the time

he decided to use deadly force. In allowing the questioning of the psychologist,


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the district court properly recognized that whether a parent exposed his children

to drug usage or criminal activity was relevant to the issue of the amount of

damage suffered by the children, but the court avoided undue prejudice by

disallowing any evidence that Mr. Fuentes sold or used drugs or exposed the

children to such activities. It was within the district court’s discretion to allow

further questioning about the psychologist’s knowledge or awareness about the

children’s exposure to any illegal drug activities after plaintiffs’ counsel opened

the door on cross-examination.        See McEwen v. City of Norman , 926 F.2d 1539,

1547 (10th Cir. 1991) (allowing testimony to rebut inference raised by defense

during cross-examination). Moreover, the district court took steps to minimize

any possible prejudice by limiting the scope of the questioning and giving the jury

a limiting instruction that the line of questioning was only to be considered with

respect to possible damages, not with respect to liability. We cannot address

plaintiffs’ claim that the district court failed to adhere to its pre-trial   in limine

ruling because plaintiffs failed to include the       in limine motion or order in the

record on appeal.     See 10th Cir. R. 10.1(A)(1) and 10th Cir. R. 28.2(C)(3)(a).




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     The judgment of the United States District Court for the District of Kansas

is AFFIRMED.


                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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