                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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.

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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




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