United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 19, 2004
Charles R. Fulbruge III
Clerk
No. 04-40306
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALPHONSO GAINER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-165-RC-WCR
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alphonso Gainer appeals his conviction for forcibly
assaulting a federal officer. He challenges the sufficiency of
the evidence and, additionally, argues that the district court
abused its discretion when it excluded from the evidence a report
prepared by Agent Derric Wilson.
With regard to Gainer’s sufficiency-of-the-evidence
argument, we hold that when the evidence is considered in the
light most favorable to the guilty verdict, a reasonable trier of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40306
-2-
fact could have found beyond a reasonable doubt that Gainer
assaulted Officers Theis and Rivers and, further, that Gainer
possessed the requisite mens rea. See United States v. Feola,
420 U.S. 671, 686 (1975); United States v. Mendoza, 226 F.3d 340,
343 (5th Cir. 2000). The testimony of the defense’s medical
witnesses does not render the Government’s evidence insufficient,
because a resultant injury is not necessary for a 18 U.S.C. § 111
conviction. See United States v. Ramirez, 233 F.3d 318, 321 (5th
Cir. 2000), overruled on other grounds by, United States v.
Longoria, 298 F.3d 367, 372 n.6 (5th Cir. 2002).
With regard to Gainer’s evidentiary argument, the district
court excluded Agent Wilson’s report pursuant to FED. R. EVID. 403
based on a determination, unchallenged by Gainer, that there
existed a substantial risk that the jury would be misled by Agent
Wilson’s opinion in its efforts to evaluate the same evidence
that was considered by Wilson in making the report. Gainer’s
failure to challenge the district court’s evidentiary decision on
this basis renders the issue waived. See United States v.
Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
AFFIRMED.