                                                       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.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 1:03-CR-165-RC-WCR
                       --------------------

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this opinion should not be published and is not precedent except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.
