UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4963
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:11-cr-00004-JPJ-PMS-1)
Submitted: April 29, 2013 Decided: July 5, 2013
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Zachery T. Lee, Assistant United States Attorney,
Galen B. Bascom, Law Intern, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Moore was charged with assault on a
federal official involving physical contact and inflicting
bodily injury, in violation of 18 U.S.C.A. § 111(a), (b) (West
Supp. 2012). A jury convicted Moore of more than simple
assault, in violation of § 111(a). The court sentenced him to
twenty-four months’ imprisonment. Moore appeals his conviction,
raising several challenges to the evidence admitted and excluded
at trial. Finding no reversible error, we affirm.
Moore first argues that the district court erred in
permitting the Government to introduce his confession for the
first time in rebuttal. We review a district court’s decision
to permit rebuttal evidence for abuse of discretion. United
States v. Byers, 649 F.3d 197, 213 (4th Cir.), cert. denied, 132
S. Ct. 468 (2011). The district court is permitted to exercise
“reasonable control over the mode and order of examining
witnesses and presenting evidence.” Fed. R. Evid. 611(a).
“‘Rebuttal evidence is defined as evidence given to explain,
repel, counteract, or disprove facts given in evidence by the
opposing party’ or ‘[t]hat which tends to explain or contradict
or disprove evidence offered by the adverse party.’” Byers, 649
F.3d at 213 (quoting United States v. Stitt, 250 F.3d 878, 897
(4th Cir. 2001)). “Ordinarily, rebuttal evidence may be
introduced only to counter new facts presented in the
2
defendant’s case in chief.” Allen v. Prince George’s County,
Md., 737 F.2d 1299, 1305 (4th Cir. 1984) (citation omitted).
Moore contends that the confession would have been
admissible in rebuttal only if he had taken the stand to deny
committing the offense. Moore also argues that the rebuttal
testimony prevented him from knowingly and voluntarily waiving
his right to testify, implying that his choice may have been
different had he known his confession would later be admitted.
We conclude the district court did not abuse its
discretion in admitting Moore’s confession in rebuttal, as the
confession was directly contrary to the evidence adduced in the
defense’s case-in-chief. And while we recognize that a
defendant’s decision whether or not to testify “is an important
tactical decision as well as a matter of constitutional right,”
Brooks v. Tennessee, 406 U.S. 605, 612 (1972), Moore has not
established that his right to testify was impermissibly
infringed by the delayed introduction of his confession. As the
Government argues, Moore was not wholly deprived of the ability
to testify in response to the confession, as he could have
attempted to testify in sur-rebuttal. We therefore find no
reversible error on this ground.
Moore next challenges the court’s decision to prevent
a defense witness from testifying as to whether a video
presented to the jury showed Moore acting aggressively in the
3
minutes after the alleged assault. We review the district
court’s evidentiary rulings for abuse of discretion. Johnson,
617 F.3d at 292. We will not reverse non-constitutional error
if the government meets its burden to demonstrate that the error
“did not have a substantial and injurious effect or influence in
determining the jury’s verdict.” See United States v. Ibisevic,
675 F.3d 342, 349 (4th Cir. 2012) (internal quotation marks
omitted).
Relevant evidence is generally admissible unless its
probative value is substantially outweighed by its cumulative or
unfairly prejudicial effect. See Fed. R. Evid. 402, 403. “The
threshold for relevancy is relatively low.” United States v.
Powers, 59 F.3d 1460, 1465 (4th Cir. 1995). Evidence is
relevant when “it has any tendency to make . . . more or less
probable” any fact “of consequence in determining the action.”
Fed. R. Evid. 401.
Contrary to Moore’s assertions, we conclude that
exclusion of testimony interpreting the video, from an
individual who had not witnessed the events depicted in the
video, did not deprive him of “a meaningful opportunity to
present a complete defense.” See Crane v. Kentucky, 476 U.S.
683, 690 (1986) (internal quotation marks omitted). As the
district court recognized, the jury was as equally capable as
the witness of interpreting Moore’s conduct in the video.
4
Further, the excluded testimony addressed an issue tangential,
at best, to the disputed elements of the offense, and another
witness actually present during the events depicted in the video
testified that Moore did not act aggressively. Thus, we find no
error in the district court’s ruling. In any event, we conclude
any error in the exclusion of this evidence would be harmless.
See Ibisevic, 675 F.3d at 349 (standard).
Finally, Moore argues that the district court
improperly permitted the Government to elicit testimony from the
alleged victim, Jessee Boggs, regarding his medication for
anxiety and his inability to continue to work as a correctional
officer as a result of his injury. Because Moore did not object
to this evidence in the district court, we review it for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 732 (1993). Under this standard, reversal is appropriate
only if Moore meets his burden to establish that error occurred,
the error was plain under established law, it affected his
substantial rights, and it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Rolle, 204 F.3d 133, 138-39 (4th Cir. 2000) (internal
quotation marks omitted); see United States v. Marcus, 130 S.
Ct. 2159, 2164 (2010). An error is plain if it is “clear or
obvious” under prevailing law, “rather than subject to
5
reasonable dispute.” Marcus, 130 S. Ct. at 2164 (internal
quotation marks omitted).
Whether the defendant “inflicts bodily injury” is an
element of a § 111(b) offense. United States v. Campbell, 259
F.3d 293, 298 (4th Cir. 2001). Moore actively disputed this
element, asserting that Boggs’ injury was preexisting and not
the result of his confrontation with Moore. We conclude that
the challenged testimony, establishing the extent and
consequences of Boggs’ injury, was relevant to prove the
existence of the injury and not so unduly prejudicial that its
admission constituted plain error.
Accordingly, we affirm the district court’s judgment.
We deny Moore’s motions for leave to file pro se supplemental
briefs. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
6