                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   April 25, 2008
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-5059
          v.                                            N.D. Oklahoma
 GLENN ERIC STARR,                                (D.C. No. CR-06-69-TCK)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of 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.

      Glenn Eric Starr was convicted by a jury of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). He appeals his conviction, arguing




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
the district court erred by admitting domestic assault evidence. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Starr’s conviction.

I.    Background

      Tulsa Police Officers responded to an emergency 911 call on September 10,

2005. The officers arrived at an apartment complex on East Independence

Avenue. The caller, Leah McIntosh, informed the 911 dispatcher that her

daughter, Sara McIntosh, was involved in a domestic dispute with her boyfriend,

Starr. She further relayed that Starr had forced Sara McIntosh into the apartment

and had a gun in his back pocket. Upon arrival, the officers found Starr standing

in the doorway of Sara McIntosh’s apartment. Personal belongings were scattered

around the street. Starr returned to the house, and reemerged holding a five-

month old child. When police inquired as to whether he had been involved in a

domestic dispute, Starr denied any problems and told the officers Sara McIntosh

had left and he was unaware of her whereabouts. Starr was visibly upset,

sweating, and had a cut on his hand that was bleeding. At that time, Sara

McIntosh opened the apartment door. She was crying and officers noticed

swelling and bruising on her face. Officers instructed Starr to hand the child over

to Sara McIntosh and Starr complied. After initially resisting, Starr was placed

under arrest for domestic violence and taken into custody.

      Sara McIntosh told officers that during the altercation, Starr had pointed a

black pistol at her. Officers obtained Sara McIntosh’s consent to search the

                                        -2-
apartment. They located a Beretta pistol behind the sofa in the living room. A

federal grand jury thereafter charged Starr with being a felon in possession a

firearm in violation of 18 U.S.C. § 922(g)(1).

      Prior to trial, Starr moved in limine to exclude references to the domestic

violence charge and the related facts. The government responded that it intended

to introduce evidence indicating (1) Leah McIntosh initially reported that Starr

had taken Sara McIntosh into the house and she reported that Starr had a gun; and

(2) Sara McIntosh made statements to the police that while she was being beaten,

Starr pointed the gun at her. The district court denied Starr’s motion with respect

to the details of the 911 call and Sara McIntosh’s statements to the police. The

court explained the domestic abuse facts were intertwined with the facts

supporting the firearm charge. It left open the possibility, however, that it would

sustain an objection at trial if the government did not limit its use of this

evidence.

      At trial, the 911 call made by Leah McIntosh was introduced. Several

officers testified that they responded to a domestic violence call in which the

caller reported that the defendant had a gun, that when they arrived on scene they

observed Sara McIntosh had bruising on her face, and there were signs that an

altercation had taken place. Before the government called Sara McIntosh to the

stand, the prosecution asked for a bench conference to discuss what testimony

would be allowed into evidence. The court reiterated that Sara McIntosh could

                                           -3-
testify that Starr had pointed a gun at her during the beating as this evidence was

intertwined, but asked the government to “minimize” its discussion of the

domestic violence evidence.

      Sara McIntosh then took the stand and testified that she was romantically

involved with Starr and that he was the father of her two children. She testified

that when she arrived home on September 10, 2005, Starr pulled her out of the car

by her hair and pulled her into the apartment. Once in the house, Starr threw her

around and beat her with his belt buckle, including numerous beatings to the face.

He then put her son in her arms and threw them to the ground. He also started to

kick her stomach. Sara McIntosh testified she was pregnant with her second child

and perhaps the reason Starr stopped kicking her was he remembered she was

pregnant. At that point Starr pulled out his gun, pointed it in her face and then

pointed it in her crotch. Sara McIntosh testified she told Starr, “Just go ahead and

kill me.” He responded, “What, you don’t think I will?” Sara McIntosh testified

she got a “pretty good look” at the gun and that it was “solid black” and “not real

big.” After examining the gun seized by the police officers, Sara McIntosh

stated, “That looks like the gun.” She also testified she was with Starr, several

days before his arrest, when he acquired the gun.

      As Sara McIntosh began testifying about being beaten, Starr objected to the

narrative answer. The district court overruled the objection. Starr was found




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guilty after a two-day trial and sentenced to 77 months’ imprisonment followed

by three years’ supervised release.

II.   Analysis

      Starr argues the district court committed reversible error by admitting

evidence that he physically abused Sara McIntosh. This evidence, he argues, was

inadmissible under Federal Rule of Evidence 404(b). This court reviews a district

court’s evidentiary rulings under Rule 404(b) for abuse of discretion. United

States v. Moran, 503 F.3d 1135, 1143 (10th Cir. 2007). “We will not reverse a

district court’s ruling if it falls within the bounds of permissible choice in the

circumstances and is not arbitrary, capricious or whimsical.” Id. (quotation

omitted).

      Rule 404(b) prohibits “bad acts” evidence to prove a defendant’s bad

character or propensity to commit the crime. The rule states:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident . . . .

Extrinsic evidence is admissible under Rule 404(b) if the four factors identified in

Huddleston v. United States are satisfied: (1) the evidence must be offered for a

proper purpose; (2) it must be relevant; (3) its probative value must not be

substantially outweighed by its potential for unfair prejudice under Federal Rule




                                          -5-
of Evidence 403; and (4) the court gives a proper limiting instruction, if requested

by the defendant. 485 U.S. 681, 691-92 (1988). 1

      Direct or intrinsic evidence of the crime charged, however, does not fall

within the ambit of Rule 404(b). See United States v. Avalos, 506 F.3d 972, 975-

76 (10th Cir. 2007). In United States v. Record, we stated intrinsic evidence

includes uncharged acts that are “part of the scheme for which the defendant is

being prosecuted . . . or if it was ‘inextricably intertwined’ with the charged

crime such that a witness’ testimony would have been confusing and incomplete

without mention of the prior act.” 873 F.2d 1363, 1372 n.5 (10th Cir. 1989)

(quotation and citation omitted). Evidence is “inextricably intertwined” with the

charged offense if it forms “an integral and natural part of the witness’ account of

the circumstances surrounding the offense for which the defendant was indicted.”

United States v. Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994) (quotation and

alteration omitted).

      The district court, in its several rulings on this issue, declared evidence that

Sara McIntosh was beaten was “inextricably intertwined” with the issue of

whether Starr was in knowing possession of a firearm. 2 We agree the 911 call, in

      1
         Starr moved to supplement the record with the jury instructions given at
trial to demonstrate the absence of limiting instructions. Because both parties
agree that no limiting instructions were requested or given, the supplement is
unnecessary and we deny the motion to supplement the record.
      2
          To obtain a conviction for felon in possession, the government must prove:
                                                                       (continued...)

                                          -6-
which Leah McIntosh told police Starr had a loaded gun and was beating her

daughter, was a “natural part of the witness’ account of the circumstances

surrounding the offense.” Johnson, 42 F.3d at 1316. It explained why the

officers arrived on the scene. See, e.g., United States v. Kimball, 73 F.3d 269,

272 (10th Cir. 1995). Further, evidence that Sara McIntosh saw the gun while

Starr beat her and then threatened her with it gives context to her account. See

United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980) (explaining evidence is

admissible when “necessary to present a full presentation of a case” (quotation

omitted)). As the government points out, Sara McIntosh’s description of the gun

was lacking in detail. She merely stated that it was “solid black” and “not real

big.” Allowing the jurors to understand the context in which saw the gun—while

being physically assaulted—lends credibility to her statement and explains why

should could not provide a more detailed description.

      Admittedly, Sara McIntosh was permitted by the court to testify in some

detail about the beating she received from Starr. This included evidence that

Starr threw her while holding her five-month old child, kicked her in the stomach

while she was pregnant, used a belt buckle to beat her, and stated that he was

willing to kill her. Although the prosecution is entitled to some leeway in giving

      2
        (...continued)
“(1) the defendant was previously convicted of a felony; (2) the defendant
thereafter knowingly possessed a firearm; and (3) the possession was in or
affecting interstate commerce.” United States v. Ledford, 443 F.3d 702, 705
(10th Cir. 2005). Starr stipulated to the first and third elements.

                                         -7-
context to Sara McIntosh’s testimony, it is possible some of this evidence was not

“inextricably intertwined” with the charged crime. These more detailed

statements are not necessary preliminaries to the crime charged, nor are they “part

and parcel of the proof of the offense charged.” Kimball, 73 F.3d at 272

(alteration and quotation omitted). As extrinsic evidence, it may have exceeded

the bounds of permissible evidence under Rule 404(b). See United States v.

Sarracino, 131 F.3d 943, 949 (10th Cir. 1997) (explaining excessive details

establishing context were prejudicial because they highlighted defendant’s violent

nature).

      Even if the district court abused its discretion in admitting Sara McIntosh’s

detailed testimony about the attack, we may affirm Starr’s conviction if the error

was harmless. “In conducting a harmless error review, we review the record de

novo.” United States v. Flanagan, 34 F.3d 949, 955 (10th Cir. 1994). Because

the admission of extrinsic evidence in violation of Rule 404(b) is a non-

constitutional error, we apply the harmless error standard from Kotteakos v.

United States, 328 U.S. 750, 765 (1946). Under that standard, we review the

entire record, focusing particularly on the erroneously admitted statements.

United States v. Tome, 61 F.3d 1446, 1455 (10th Cir. 1995). We must determine

whether the statements, in light of the entire record, (1) “‘substantially

influence[d]’” the outcome of the trial, or (2) leave us in “‘grave doubt’” as to




                                          -8-
whether they had such an effect. United States v. Rivera, 900 F.2d 1462, 1469

(10th Cir. 1990) (en banc) (quoting Kotteakos, 328 U.S. at 765).

      We have no such doubt. Overwhelming evidence was introduced that Starr

knowingly possessed the firearm. Sara McIntosh testified she was with him when

he purchased the gun several days prior to the altercation. Officers found the

weapon inside the apartment in which he was residing and Sara McIntosh

provided evidence placing the gun in Starr’s hands. Further, evidence was

introduced through the 911 dispatch tape that Starr was in possession of a gun. 3

Sara McIntosh’s description of the altercation occupies a mere paragraph of the

trial transcript. The government did not emphasize this testimony in its opening

statement or closing argument. Therefore, any error made by the district court

was harmless.




      3
        Starr points to evidence suggesting that the gun was in his house because
Sara McIntosh’s brothers had dropped it after visiting the house and engaging in
an altercation with Starr. Further, Sara McIntosh testified that she wrote a letter
telling Starr, “I had a dream last night telling me to get you out of this mess by
admitting—by admitting lying about the gun being yours.” Although this
evidence supports Starr’s theory of the case, it does not indicate to this court the
jury was substantially influenced by the evidence of the assault in rendering its
verdict.

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III.   Conclusion

       Based on the foregoing reasons, we affirm the district court.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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