                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 07-2516
                                  ___________

The Estate of Robert Rudolph          *
Hutchins, Deceased, Malcolm           *
Richard Hutchins, Personal            *
Representative,                       *
                                      *
              Appellant,              *
                                      * Appeal from the United States
       v.                             * District Court for the
                                      * Eastern District of Arkansas.
Motel 6 Operating LP, previously      *
identified as Accor North America,    * [UNPUBLISHED]
Inc., d/b/a Motel 6 of Conway,        *
Arkansas,                             *
                                      *
              Appellee.               *
                                 ___________

                            Submitted: March 14, 2008
                               Filed: July 28, 2008
                                ___________

Before MURPHY, BRIGHT, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      Robert Rudolph Hutchins died of a hydrocodone overdose on February 28,
2003, in a motel room. His Estate sued Motel 6 Operating LP, claiming its agents
unreasonably delayed calling emergency personnel. After a jury allocated 70 percent
fault to Hutchins, the district court1 entered judgment for Motel 6. Objecting to
evidentiary rulings, the Estate appeals the denial of its motion for new trial. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

      The Estate focuses on two pieces of evidence: (1) a page of notes from
Hutchins’s employment record from City Lumber Company, Inc. that his behavior
was affected by “prescription drugs,” and (2) a weather report that sunrise was at 6:40
a.m. on the date of death.

       This court reviews for abuse of discretion the denial of a motion for new trial.
Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1059 (8th
Cir. 2005). This court accords substantial deference to the district court’s evidentiary
rulings and reverses only if they amount to clear and prejudicial abuse of discretion.
Id.

      The Estate claims Motel 6 conducted discovery past the discovery deadline,
arguing the employment record and weather report were presented on the eve of trial.
The Estate asserts the district court should have excluded the evidence.

       The court did not clearly and prejudicially err by admitting the employment
record and weather report. Contrary to the Estate’s claims, it had notice before the
deadline of the employment record, and the option to order a copy shortly after the
deadline. As for the weather report, Motel 6 gave the Estate a copy before the final
pretrial conference, and it was the subject of one impeachment question at trial.

       The Estate contends that the probative value of the employment record was
substantially outweighed by its prejudice, under Federal Rule of Evidence 403. The
Estate further argues the record should have been excluded under Rule 404(b).

      1
       The Honorable Rodney S. Webb, United States District Judge for the District
of North Dakota, sitting by designation in the Eastern District of Arkansas.
                                         -2-
        Rule 404(b) is a rule of inclusion rather than exclusion, allowing evidence of
other crimes, wrongs, or acts relevant to any issue in the trial other than the criminal
disposition of the accused. United States v. Lakoskey, 462 F.3d 965, 979 (8th Cir.
2006), cert. denied, 127 S. Ct. 1388 (2007). “Evidence of prior acts may be admitted
if (1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3)
higher in probative value than in prejudicial effect; and (4) similar in kind and close
in time to the event at issue.” Batiste-Davis v. Lincare, Inc., 526 F.3d 377, 380 (8th
Cir. 2008) (noting that the third requirement is “an analysis equivalent to that in Rule
403”). Evidence of other acts is relevant to a material issue where it shows proof of
knowledge. See Lakoskey, 462 F.3d at 980. The prior act must be proven by a
preponderance of the evidence. See id. To be similar in kind, a prior act need not
involve the same drug as the past act. See United States v. Cook, 454 F.3d 938, 941
(8th Cir. 2006). There is no fixed period within which acts must have occurred to be
sufficiently close in time; it is a question of reasonableness under the circumstances.
United States v. Walker, 428 F.3d 1165, 1170 (8th Cir. 2005).

       Here, the district court did not abuse its discretion: (1) the employment record
is relevant to the material issue of Hutchins’s knowledge of prescription drugs and
therefore relevant to Motel 6’s theory that his negligence caused his death; (2) the
employment record proved Hutchins’s drug-affected work behavior by a
preponderance of the evidence; (3) the probative value of the record outweighs its
prejudicial value, as the record helped the jury compare responsibility for the death;
and (4) prescription-drug use in the employment record is sufficiently similar in kind
to Hutchins’s hydrocodone overdose and occurred less than four months before his
death.

       The Estate also maintains that testimony by Hutchins’s girlfriend that he lost
his job at Wal-Mart because of drug use should not have been admitted under Rule
404(b). However, she did not state that Hutchins lost his job at Wal-Mart because of
prescription-drug use. When asked if he was “staggering around while on the job”

                                          -3-
from taking too many pain pills, she answered “yes.” Like the employment record,
this testimony is relevant and admissible. See Fed. R. Evid. 404(b).

      The district court did not clearly and prejudicially abuse its discretion in
denying the motion for new trial.

      The judgment of the district court is affirmed.

                      ______________________________




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