UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 97-4361

LARRY STEVEN NEFF,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-184-F)

Submitted: February 27, 1998

Decided: March 18, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, Gordon Widenhouse,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Captain Christine Helms,
Special Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Larry S. Neff appeals his conviction for driving an automobile
while under the influence of an impairing substance on an area within
the special maritime and territorial jurisdiction of the United States
and within the Eastern District of North Carolina, in violation of 18
U.S.C.A. § 13 (West Supp. 1997) (adopting state laws for areas
within Federal jurisdiction), assimilating N.C. Gen. Stat. § 20-138.1
(1997) (impaired driving). On appeal, Neff challenges a jury instruc-
tion and the admission of evidence. For the following reasons, we
affirm.

Military Police Officer Timothy Garner and his partner, Zukiessa
Johnson, were on duty and riding in their patrol car at Fort Bragg,
North Carolina, when Neff pulled next to them at an intersection.
Neff rolled down his window and motioned Johnson, who was sitting
in the passenger seat of the patrol car, to do the same. After she did
so, Neff asked about a road with which neither Garner nor Johnson
were familiar.

After Neff rolled up his window and drove away, Garner and John-
son confirmed with one another that they had smelled alcohol and
observed slurred speech. Garner then stopped Neff's vehicle and
informed him that they were stopping him because his breath smelled
of alcohol and his speech was slurred. Garner confirmed information
about Neff's license and registration.

Garner then administered two filed sobriety tests. During the first
test, Neff was required to walk heel to toe nine steps, turn around with
short, choppy steps, and walk nine steps back. According to Garner,
Neff's balance was "messed up" because Neff could not make heel to
toe contact and had to step out of line. During the second test, Neff
was required to tilt his head backward, extend his arms parallel to the

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ground, close his eyes, and touch the tip of his index finger to the tip
of his nose. Garner instructed Neff to perform the test five times each
on the right side and the left side. Neff completely missed his nose.
With Neff's consent, Garner administered an alcohol screening test
called the "Alcosenser." Garner testified that he formed an opinion,
based on his observations, the odor of alcohol, and Neff's perfor-
mance on the field sobriety tests, that Neff was impaired.

Garner arrested Neff and escorted him to the Provost Marshall's
office. Neff was read his rights and advised that a refusal to submit
to a state certified breathalyser test using an"Intoxilizer 5000" would
result in his license being suspended for one year. Neff refused to
submit to the test. At Neff's trial, the district court charged the jury
and the jury began deliberating. During deliberations, the jury asked
the court "What determines impairment? [B]y law. Without a test?"
Neff proposed that the court submit to the jury the third element of
the driving while impaired instruction from the original jury charge.
The Government requested that the remaining portion of the instruc-
tion that addressed a defendant's refusal to take a chemical test be
included as well. Thus, the court submitted the following instruction
to the jury in writing:

          Alcohol is an impairing substance. A person is under the
          influence of an impairing substance when he has taken or
          consumed a sufficient quantity of that impairing substance
          to cause him to lose the normal control of his bodily or men-
          tal faculties, or both, to such an extent that there is an appre-
          ciable impairment of either or both of his faculties.

          There is evidence in this case which tends to show that a
          chemical test known as a[n] intoxilizer was offered to the
          defendant by a law enforcement officer and that the defen-
          dant refused to take the test. You may consider this evidence
          together with all other evidence in determining whether the
          defendant was under the influence of an impairing substance
          at the time he allegedly drove a motor vehicle.

The jury found Neff guilty of driving while impaired. Neff timely
appeals.

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On appeal, Neff claims that the district court erred by repeating the
relevant part of the original jury instruction in response to the jury's
question and allowing the Government to introduce evidence that
Neff had been given an alcohol screening test.

Neff first claims that the district court erred by responding to the
jury's question regarding what determines impairment with its earlier
instruction and not giving the jury any additional, affirmative guid-
ance on how it could determine whether Neff was impaired in the
absence of a chemical test. Because Neff did not object to the court's
instruction at trial, we review the instruction only for plain error prej-
udicing substantial constitutional rights. See United States v. Olano,
507 U.S. 725, 731-32 (1993); United States v. Tipton, 90 F.3d 861,
895 (4th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3798
(U.S. 1997) (No. 96-7639); Fed. R. Crim. P. 52(b)."[T]he necessity,
extent, and character of any supplemental instructions to the jury are
matters within the sound discretion of the district court." United
States v. Horton, 921 F.2d 540, 546 (4th Cir. 1990). When a jury
makes explicit its difficulties, a trial court should then clear them
away with "concrete accuracy." Bollenbach v. United States, 326 U.S.
607, 613 (1946). "[I]n responding to a jury's request for clarification
on a charge, the district court's duty is simply to respond to the jury's
apparent source of confusion fairly and accurately without creating
prejudice." United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995).
However, "[t]he particular words chosen, like the decision whether to
issue any clarification at all, are left to the sound discretion of the dis-
trict court." Id.

In the present case, Neff does not claim that the original charge
was defective or misleading, a problem which could not have been
addressed by a mere repetition of that instruction. Further, Neff was
not prejudiced by the reference to a defendant's refusal to submit to
a chemical test because the relevant state law, N.C. Gen. Stat.
§ 20-139.1(f) (1997), allows the jury to consider such a refusal. We
find that the court did not plainly error by responding to the jury's
inquiry with a repetition of a portion of the original charge.

Neff next claims that the district court erred in denying his motion
to preclude testimony concerning the administration of an alcohol
screening test. This court reviews evidentiary rulings for an abuse of

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discretion and such rulings are subject to harmless error review. See
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997); Fed. R.
Crim. P. 52(a). "[I]n order to find a district court's error harmless, we
need only be able to say `with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the error.'" United
States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995) (citations omitted).

Prior to trial, Neff moved to preclude the Government from intro-
ducing the results of the alcohol screening test and to prevent any tes-
timony that the test was administered by the officers who stopped
him. At trial, Officer Garner was allowed to testify that he adminis-
tered two field sobriety tests--the walk and turn test and the finger
to nose test--and an alcohol screening test. He did not testify as to
the numerical result of the screening test. Garner further stated that,
based on Neff's performance on the field sobriety tests and his other
observations, he thought Neff was impaired. The administration of the
alcohol screening test was also mentioned by defense counsel during
the cross-examination of Officer Johnson as well as in the Govern-
ment's closing argument.

Although relevant state law limits the admissibility of the results
of an alcohol screening test, the results of the alcohol screening test
were not admitted into evidence in this case. See N.C. Gen. Stat.
§ 20-16.3(d) (1997). Even assuming that the district court erred by
admitting evidence of the administration of the alcohol screening test,
we find that the admission was harmless because the judgment was
not "substantially swayed" by the alleged erroneous admission.
Brooks, 111 F.3d at 371. Even without the admission of the testimony
regarding the administration of the alcohol screening test, there was
overwhelming evidence of Neff's impairment. Garner testified that
Neff smelled of alcohol, had slurred speech, and had admitted to
drinking "three Coronas and a Budweiser approximately an hour [ear-
lier] in Raleigh." Garner described Neff's performance on two field
sobriety tests and stated that he thought Neff's"balance was all
messed up" on the walk and turn test and that Neff "completely
missed" his nose several times on the finger to nose test. On cross
examination, Garner testified that when he asked Neff whether he had
been drinking that night, Neff responded, "Do you want me to lie or
do you want me to tell you the truth?" Lastly, after Neff was read his

                     5
rights, Garner witnessed Neff refuse to submit to a state certified
breathalyser test. Officer Johnson corroborated Garner's testimony.
Thus, Officers Garner and Johnson, whom Neff cross-examined, pro-
vided ample evidence upon which a jury could conclude that Neff
was impaired without being substantially swayed by the admission of
the challenged testimony. Id.

Accordingly, we affirm Neff's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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