US v. Christopher Moore, No. 12-4963 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4963 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CHRISTOPHER MOORE, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 federal official Moore was involving charged physical with contact assault and on a inflicting bodily injury, in violation of 18 U.S.C.A. § 111(a), (b) (West Supp. 2012). A jury convicted Moore assault, in violation of § 111(a). twenty-four months imprisonment. of more than simple The court sentenced him to 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). reasonable witnesses The district court is permitted to exercise control and over presenting the mode and evidence. order Fed. R. of examining 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. introduced 2001)). Ordinarily, only counter to new 2 rebuttal facts evidence presented may in be the 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 attempted in to response testify in to the confession, sur-rebuttal. We as he could therefore have 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. 617 F.3d at 292. Johnson, 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. 675 F.3d 342, 349 (4th Cir. See United States v. Ibisevic, 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. threshold for relevancy is relatively low. Powers, 59 F.3d 1460, 1465 (4th Cir. The United States v. 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 exclusion of testimony individual who had video, did not not deprive interpreting witnessed him present a complete defense. 683, 690 (1986) assertions, (internal of the a we the conclude video, events meaningful that from depicted in opportunity an the to See Crane v. Kentucky, 476 U.S. quotation marks omitted). As the district court recognized, the jury was as equally capable as the witness of interpreting Moore s 4 conduct in the video. 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. error in the district court s ruling. Thus, we find no 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). obvious under An error is plain if it is clear or prevailing law, 5 rather than subject to 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. the challenged consequences of testimony, Boggs establishing injury, was We conclude that the relevant extent to prove and 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. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

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