           Case: 16-12347   Date Filed: 10/17/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-12347
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cv-23235-KMW

HENRY TIEN,

                                                            Plaintiff-Appellant,

                                  versus

RED COATS, INC.,
d.b.a. Admiral Security Services,
INSURANCE COMPANIES FOR RED COATS, INC.,
ADMIRAL SECURITY SERVICES,
CONTINENTAL CASUALTY COMPANY,


                                                        Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (October 17, 2018)

Before MARCUS, NEWSOM and HULL, Circuit Judges.

PER CURIAM:
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       Henry Tien, proceeding pro se, appeals a jury verdict in favor of the

defendant, Red Coats, Inc., d.b.a. Admiralty Security Services (“RCI”). This case

arose from an unrelated federal lawsuit when Tien had gone to a law office to take

a deposition and became agitated, yelling and carrying a metal folding chair.

While being forcibly removed from the building by an RCI security officer, he was

allegedly injured. At trial, a jury found that RCI’s security officer had committed

battery, but that the battery was justified by self-defense or defense of others. On

appeal, Tien argues that: (1) the court erred by excluding some of his witnesses at

trial who would have testified about the security officer’s reputation and specific

past acts, and by refusing to sanction RCI for spoliation; and (2) the jury’s verdict

should be overturned.1 After careful review, we affirm.

       We review a district court’s evidentiary and spoliation sanctions rulings for

abuse of discretion, and will only reverse if the district court made a clear error of

judgment or applied the wrong legal standard. ML Healthcare Servs., LLC v.

Publix Super Markets, Inc., 881 F.3d 1293, 1297–98 (11th Cir. 2018). We will not

reverse a jury verdict based on a district court’s evidentiary ruling unless it is

manifestly erroneous. U.S. SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786,

810 (11th Cir. 2015). Where a party failed to object to an evidentiary ruling, we

       1
         We acknowledge that Tien raises additional arguments concerning whether he moved to
amend his complaint a third time and whether he should have been able to seek damages for lost
or diminished future earning capacity, but we conclude that these arguments are meritless and
warrant no further discussion.
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review for plain error. Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179

(11th Cir. 2002). To establish plain error, a party must show (1) an error, (2) that

is plain, and (3) that affected his substantial rights. United States v. Turner, 474

F.3d 1265, 1276 (11th Cir. 2007). If the party satisfies these conditions, we may

exercise our discretion to recognize the error only if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. We will affirm

a jury’s verdict if “the state of the proof is such that reasonable and impartial minds

could reach the conclusion the jury expressed in its verdict.” Meeks v. Computer

Assocs. Int’l, 15 F.3d 1013, 1016 (11th Cir. 1994) (quoting Deakle v. John E.

Graham & Sons, 756 F.2d 821, 827 (11th Cir. 1985). If there is competent

evidence in the record to support the verdict, it should not be disturbed. Id.

      First, we are unpersuaded by Tien’s challenges to the evidentiary rulings. It

is true that all relevant evidence, or evidence that makes a fact of consequence

more or less probable, is generally admissible at trial. Fed. R. Evid. 401, 402.

However, evidence of a person’s character or character trait is not admissible to

prove that on a particular occasion the person acted in accordance with the

character or trait, except that a witness’s credibility may be attacked or supported

by testimony about the witness’s reputation for truthfulness or untruthfulness, or

testimony in the form of an opinion about that character. Fed. R. Evid. 404(a),

608(a).   Extrinsic evidence is not admissible to prove specific instances of a


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witness’s conduct in order to attack or support the witness’s character for

truthfulness, unless the evidence is of a criminal conviction. Fed. R. Evid. 608(b).

      When a party alleges that spoliation of evidence has occurred, a court should

ask whether sanctions -- including adverse inferences and the exclusion of

evidence -- are warranted, based on (1) whether the party seeking sanctions was

prejudiced and whether any prejudice was curable, (2) the practical importance of

the evidence, (3) whether the spoliating party acted in bad faith, and (3) the

potential for abuse if sanctions are not imposed. ML Healthcare Servs., 881 F.3d

at 1307. If electronically stored information has not been preserved, a court may

cure any prejudice and, upon finding that the spoliating party acted with bad faith,

(1) presume the lost evidence was unfavorable to the spoliating party, (2) instruct

the jury that it may or must presume the evidence was unfavorable to the spoliating

party, or (3) dismiss the action or enter a default judgment. Fed. R. Evid. 37(e).

      In ML Healthcare Services, we determined that a district court had not

abused its discretion by not issuing an adverse inference instruction or excluding

evidence when a defendant provided the plaintiff with the most relevant portion of

surveillance footage, which was an hour long. Id. at 1308–09. We also held that

the defendant had not acted in bad faith, because there was no indication that the

remaining footage was destroyed in a manner inconsistent with normal business

practices, or that the remaining footage resolved a crucial issue. Id.


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      As a general rule, an appellant is responsible for “presenting a record that is

sufficient to allow [us] to decide the issues presented by the appeal.” Mandel v.

Max-France, Inc., 704 F.2d 1205, 1206 (11th Cir. 1983) (citing Fed. R. App. P.

10(b)). The Federal Rules of Appellate Procedure specify that if an appellant

intends to urge on appeal that a finding or conclusion is unsupported by the

evidence, the appellant must include in the record a transcript of all evidence

relevant to that finding or conclusion. Fed. R. App. P. 10(b)(2). We’ve explained

that the appellant has the burden “to ensure the record on appeal is complete, and

where a failure to discharge that burden prevents us from reviewing the district

court’s decision we ordinarily will affirm the judgment.” Selman v. Cobb Cty.

Sch. Dist., 449 F.3d 1320, 1333 (11th Cir. 2006) (describing the “absence-equals-

affirmance rule”); Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (applying

the requirements of Fed. R. App. P. 10(b)(2) and to pro se appellants).

      Here, Tien proceeded to trial below, where a jury entered a verdict in favor

of RCI, but Tien has failed to provide us with transcripts of any oral proceedings

below. The absence of a transcript precludes us from conducting meaningful

appellate review as to why the district court ultimately excluded some of Tien’s

witnesses, whether it actually excluded others, and whether the issue of spoliation

was actually brought to its attention. See Selman, 449 F.3d at 1333. Accordingly,

we affirm the district court’s evidentiary rulings on this basis. See id.


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      We also reject Tien’s challenge to the jury verdict. Under Florida law,

battery is the infliction of a harmful or offensive contact upon another with the

intent to cause such contact or the apprehension that such contact is imminent.

Quilling v. Price, 894 So. 2d 1061, 1063 (Fla. Dist. Ct. App. 2005). A person may

use non-deadly, reasonable force against another as necessary to defend himself or

another against the other’s imminent use of unlawful force. Fla. Stat. § 776.012.

      Once again, however, the absence of a transcript precludes us from

conducting meaningful appellate review as to what evidence was presented to the

jury and whether it supported the jury’s verdict. See Selman, 449 F.3d at 1333;

Meeks, 15 F.3d at 1016. Accordingly, we affirm on this issue as well. See

Selman, 449 F.3d at 1333.

      AFFIRMED.




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