                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL EVANS,                                   No. 10-35215

              Plaintiff - Appellant,             D.C. No. 3:07-cv-01532-BR

  v.
                                                 MEMORANDUM *
MULTNOMAH COUNTY; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                        Argued and Submitted July 10, 2012
                                Portland, Oregon

Before: GOODWIN, PREGERSON, and CHRISTEN, Circuit Judges.

       Michael Evans appeals the district court’s: (1) grant of partial summary

judgment in favor of Multnomah County on his battery claim stemming from the

actions of Sergeant Catherine Gorton; (2) grant of partial summary judgment in

favor of the County on his claim for malicious prosecution; (3) denial of Evans’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion for mistrial; (4) order sustaining the County’s objection to Evans’s

proposed use of a rebuttal witness; and (5) denial of Evans’s motion to amend the

verdict form.1

      We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We

reverse and remand the district court’s grant of partial summary judgment in favor

of the County on the battery claim arising from Gorton’s actions but affirm the

remainder of the district court’s rulings.

      A. Facts

       Evans was involved in a scuffle while he was being booked at the

Multnomah County Detention Center (“MCDC”). When Sergeant Gorton saw

several officers wrestling with Evans, she displayed a taser and informed Evans

that she was going to use it if he did not stop resisting. Gorton shined the taser’s

aiming laser in Evans’s eye and he stopped resisting.

      That night, Deputy Richard Hathaway reported that Evans struck him in the

nose during booking. He also reported that Evans would not follow directions

during booking. The report triggered an internal disciplinary process in MCDC

that resulted in Evans being subjected to a $5 fee. Hathaway later told Officer



      1
         Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.

                                             2
Hager that Evans hit him in the nose with his elbow during the scuffle. Hager cited

Evans for assaulting a police officer but the district attorney ultimately dismissed

that charge. Evans filed suit seeking damages for assault, battery, and malicious

prosecution, among other claims.

      B. Battery Claim

       The district court granted partial summary judgment in favor of the County

on his battery claim. It reasoned that because Gorton was aware the taser was not

equipped with a cartridge at the time she pointed it at Evans, she lacked the intent

to tase him.

      Battery is an intentional tort that is a “voluntary act . . . intended to cause the

resulting harmful or offensive contact.” Ballard v. City Albany, 191 P.3d 679,

686–87 (Or. Ct. App. 2008) (internal citation omitted). For battery to occur, “[i]t is

not necessary that there be direct contact between the tortfeasor and the injured

person.” Friedrich v. Adesman, 934 P.2d 587, 591 (Or. Ct. App. 1997). Here, the

battery claim was premised on the theory that Gorton intended to shine the taser’s

aiming laser in Evans’s eye. Evans argued that exposure to the laser caused a

permanent impairment in his left field of vision and that this constituted a battery.

On appeal, he argues the district court only considered whether Gorton intended to




                                            3
tase him without considering whether shining the laser in his eye supported the

battery claim.

      The County argues on appeal that any error in dismissing the battery charge

was harmless. It reasons that because the jury did not find Gorton’s use of the

taser was an assault, it could not have found that her use of the taser was a battery.

We are not persuaded by the County’s argument for two reasons. First, one can

commit a battery without committing an assault because it is possible to

intentionally cause a harmful or offensive touching without first putting the victim

in fear or apprehension of such contact. Ballard v. City of Albany, 191 P.3d 679,

686–87 (Or. Ct. App. 2008) (defining battery); Holbert v. Noon, 260 P.3d 836, 846

(Or. Ct. App. 2011) (defining assault). Second, the County’s argument assumes

the jury decided Gorton lacked the intent to assault Evans. In fact, the verdict form

did not require findings on each element of assault so we cannot be sure which

element or elements of the claim were not shown to the jury’s satisfaction.

      The district court ruled on the question whether Gorton intended to tase

Evans but we can find no ruling addressing whether shining the laser in his eye

was a battery. We therefore reverse and remand the order dismissing the battery

claim arising from Gorton’s actions so the district court can rule on this theory.

             C. Malicious Prosecution


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       The district court ruled that Evans was not able to establish damages, one of

the necessary elements of a malicious prosecution claim.

       Oregon Revised Statute § 30.650 provides “[n]oneconomic damages, as

defined in ORS 31.710, may not be awarded to an inmate in an action against a

public body unless the inmate has established that the inmate suffered economic

damages, as defined in ORS 31.710.” Evans did not establish that the fee

connected to the internal disciplinary action was the result of the state-court

charge. The only connection between the two was that Evans’s alleged assault of

Deputy Hathaway provided the underlying basis for both actions. We see no error

in the district court’s ruling.

       Evans argues for the first time on appeal that he suffered $150,000 in

damages as a result of the charge that he assaulted Deputy Hathaway. But there

was no evidence of the alleged $150,000 loss, or any other issue of material fact

regarding damages, before the district court. Because Evans did not raise a triable

issue of fact as to damages, we affirm the district court’s dismissal of his malicious

prosecution claim.

       D. Motion for Mistrial Based on Atherton’s Testimony

       Evans moved for mistrial after Eugene Atherton, an expert witness for the

County, testified that use of the taser was reasonable. This court reviews the


                                           5
district court’s denial of a motion for mistrial for abuse of discretion. United States

v. Dorsey, 677 F.3d 944, 954–55 (9th Cir. 2012). We may reverse the denial of

this motion for mistrial only if, viewing Atherton’s testimony in the context of the

entire trial, it is more probable than not that it materially affected the verdict. Id. at

954.

       In response to a motion in limine challenging Atherton’s qualifications,

County counsel agreed he would not ask Atherton about the reasonableness of the

use of the taser. The County represented that Atherton’s testimony would be

limited to the observation that use of the taser was a tactic that worked. But

County counsel asked Atherton several questions about use of the taser during trial,

and Atherton opined that the use of the taser would have been appropriate at the

outset of the scuffle in the booking area. Evans unsuccessfully moved for a

mistrial. He appeals the denial of this motion.

       First and foremost, we agree with the district court that Atherton’s testimony

relating to the objective reasonableness of the use of the taser did not materially

affect the verdict. The question whether it was objectively reasonable to use the

taser was relevant to the County’s justification defense. But because the jury did

not find that Gorton assaulted Evans, it did not reach the question whether use of

the taser was justified.


                                            6
      We also conclude that Atherton’s testimony did not prejudice Evans.

Evans’s expert, Webb, testified that the officers’ best option under the

circumstances was the taser. Webb also testified that when a person is not

controlled, a taser in drive stun mode is very effective. Because the jury had

already heard Webb’s testimony, the district court did not err in concluding that

Evans was not prejudiced by Atherton’s testimony. See id. at 955.

      Finally, we note the district court instructed the jury to disregard Atherton’s

testimony on the reasonableness of the use of the taser. The strong presumption

that jurors follow the court’s instructions supports our conclusion that Atherton’s

comments probably did not materially affect the verdict. Id.

      E. Objection to Proposed Rebuttal Testimony

      Evans also appeals the district court’s ruling sustaining the County’s

objection to his proffered rebuttal testimony.

      Evidentiary rulings are reviewed for an abuse of discretion. Rent-A-Center,

Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 601 (9th Cir.

1991). The district court has broad discretion to decide what constitutes proper

rebuttal evidence. Id.

      Evans offered Griffith’s testimony to rebut Hathaway’s testimony regarding

the sequence of events that occurred during the scuffle in the booking area. The


                                          7
district court sustained the County’s objection to Griffith’s rebuttal testimony on

the basis that it would be cumulative of the testimony Evans presented in his case-

in-chief. The district court did not abuse its discretion; Griffith testified to the

sequence of events in his direct testimony and it appears his proffered rebuttal

testimony would have been cumulative. See Fed. R. Evid. 403; Gen. Signal Corp.

v. MCI Telecomm. Corp., 66 F.3d 1500, 1510 (9th Cir. 1995).

      On appeal, Evans focuses on a new argument: that his rebuttal evidence

should have been permitted because a third expert’s trial testimony differed from

his written report. Generally, we do not consider arguments raised for the first

time on appeal and Evans offers no persuasive reason for doing so here. See

AlohaCare v. Hawaii, Dept. of Human Servs., 572 F.3d 740, 744–45 (9th Cir.

2009). We affirm the district court’s ruling excluding Griffith’s rebuttal testimony.

      F. Proposed Amendment to Verdict Form

      Evans argues the district court abused its discretion when it did not amend

the verdict form at his request.

      Verdict forms are essentially instructions to the jury and they are reviewed

for abuse of discretion. See United States v. Reed, 147 F.3d 1178, 1180 (9th Cir.

1998). “So long as the instructions fairly and adequately cover the issues




                                            8
presented, the judge’s formulation of those instructions . . . is a matter of

discretion.” Id.

          The jury awarded Evans $250 on his excessive force claim against

Hathaway and $250 on his battery claim against the County arising from the

actions of Hathaway and Griffith. Evans argues on appeal that the verdict form

was unnecessarily confusing and that it is highly probable the jury would have

awarded Evans more money if the verdict form had a single blank line for the jury

to award cumulative damages on the excessive force, assault, and battery claims,

rather than separate blank lines for damages on each of these causes of action.

          Evans did not provide authority to the district court in support of this

argument, and he does not do so on appeal. Further, the district court had a sound

basis for separating the sub-totals to be awarded, or not awarded, on the various

tort claims. The defendants made two offers of judgment before trial and the

district court expressed concern that if damages awards were lumped together on

the special verdict form, the court might not be able to determine which party

prevailed on the offers. See Fed. R. Civ. P. 68(d); 42 U.S.C. § 1988(b) (court may

allow prevailing party in a § 1983 claim reasonable attorney’s fees as part of

costs).




                                              9
      We see no error in setting out separate damages sub-totals on the verdict

form and Evans has not shown that this format prejudiced him. See Yeti by Molly

Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1110 (9th Cir. 2001). We conclude

the district court did not abuse its discretion by declining to amend the special

verdict form. See Galdamez v. Potter, 415 F.3d 1015, 1021 (9th Cir. 2005).

      Each party to bear its own costs.

      REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.




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