                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-1414


JERRELL R. JOHNSON, Administrator of the Estate of Kirill
Denyakin, Deceased,

                Plaintiff - Appellant,

           v.

STEPHEN D. RANKIN, Individually and in his Official Capacity
as a Police Officer for the City of Portsmouth, Virginia,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Rebecca Beach Smith, Chief
United States District Judge. (2:11-cv-00415-RBS-TEM)


Argued:   September 18, 2013                 Decided:   December 2, 2013


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Fletcher C. Alford, DENTONS US LLP, San Francisco,
California, for Appellant.  Richard J. Cromwell, MCGUIREWOODS
LLP, Norfolk, Virginia, for Appellee.   ON BRIEF:   James R.
Reilly, GORDON & REES, LLP, San Francisco, California, for
Appellant.    Kenneth W. Abrams, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Jerrell R. Johnson, the administrator of Kirill Denyakin’s

estate, brought this action against City of Portsmouth Police

Officer Stephen D. Rankin, alleging that Rankin was liable for

excessive force in violation of the Fourth Amendment under 42

U.S.C. § 1983 and battery and gross negligence under Virginia

law.    A jury ruled in favor of Rankin on all counts.                     Johnson

now appeals, arguing that the district court erred in making

certain       evidentiary      determinations.        For     the    reasons    that

follow, we affirm.



                                         I.

       On the night of April 23, 2011, Rankin received a “Priority

One” emergency call from City of Portsmouth, Virginia, Dispatch

reporting a “burglary in progress” at an apartment building.

Priority One calls are reserved for situations in which someone

is in physical danger.               Rankin testified that the dispatcher

told him that a man was trying to break down a door.                     According

to Rankin, when he arrived, he saw a man matching the suspect’s

description violently banging on a glass door with both hands

over    his     head,    apparently     trying   to    gain      entry   into   the

building.

       Rankin testified that he positioned himself about thirty-

five   feet     away    from   the   suspect—Denyakin,      an      immigrant   from

                                         2
Kazakhstan.          Rankin stated that he drew his weapon, identified

himself as a police officer, and repeatedly told Denyakin to

stop, show his hands, and get down on the ground.                         According to

Rankin, Denyakin stopped banging on the door when Rankin issued

his commands.          Denyakin then lowered his hands to his sides and

shoved his right hand in his pants, a place where Rankin knew

that suspects can hide weapons.                  Rankin testified that Denyakin

appeared to be “digging for an object.”                      At this time, Rankin

called “clear the air” into his radio, which is a signal that

lets    other        officers     know    that     an    emergency       situation   is

unfolding.       Rankin testified that Denyakin then charged at him

and did not stop when Rankin ordered him to do so.

       Rankin further testified that, although he did not see a

weapon, Denyakin’s behavior led him to believe that he was in

serious physical danger.             He fired his weapon eleven times over

the    course    of     about     three    seconds,       and     each    shot   struck

Denyakin, killing him.             Rankin may have fired the last one or

two    shots    as    Denyakin     fell   to     the    ground.     Although     Rankin

testified that Denyakin had his right hand inside his pants when

he started the charge, he is unsure when Denyakin removed his

hand because his focus shifted to Denyakin’s “center mass” when

he began charging.              A search later revealed that Denyakin was

not carrying a weapon.



                                            3
      Johnson       brought        this      action     against       Rankin,     both

individually and in his official capacity, alleging a claim of

excessive     force    in    violation       of   the   Fourth     Amendment     under

§ 1983 and state law claims for battery and gross negligence. 1                      A

jury trial commenced on February 28, 2012.                   This appeal concerns

three evidentiary determinations that the district court made.

First, Johnson challenges the district court’s decision to allow

“prior bad act” evidence regarding Denyakin’s alcoholism and his

behavior during an earlier encounter with police.                         At trial,

Johnson contended that Denyakin could not have charged at Rankin

due to his high blood alcohol content (BAC)—0.28%—at the time of

the incident.        In support of this theory, Johnson presented lay

witness      testimony       about        Denyakin’s       heavy      drinking     and

inappropriate behavior the day of the shooting.                    He also offered

the   expert       testimony       of   toxicologist       Alphonse    Polkis,     who

believed that Denyakin was too drunk to charge at Rankin.                           In

response, Rankin presented lay witness testimony that Denyakin

appeared     coherent     and      coordinated     before    his   encounter     with

Rankin and that he smoked a cigarette, walked along the street,

and   went    up    and     down    steps.        Rankin    also   offered      expert


      1
       Johnson also alleged cruel and unusual punishment in
violation of the Eighth Amendment under § 1983.          Johnson
consented to the dismissal of this count on August 30, 2011, and
it is not at issue on appeal.



                                             4
testimony    that     Denyakin    was    a    chronic    alcoholic        who     had

developed a tolerance for alcohol and could charge at Rankin

despite his high BAC.         Finally, Rankin presented lay and expert

testimony regarding a confrontation Denyakin had with police on

February 21, 2011, when he had a BAC of 0.22%.                       During that

encounter,       Denyakin    walked   without      stumbling,      and    a    police

officer told him that he could shoot him if he failed to show

his hands.       The testimony also revealed that Denyakin threatened

to beat his girlfriend, punched her apartment window, and drew a

bloody symbol on her door.

     Second, Johnson challenges the district court’s decision to

exclude two of Rankin’s Facebook postings from the liability

phase of trial.         Johnson sought to introduce the postings as

evidence    of    Rankin’s    motivation     for   shooting     Denyakin.         One

posting included a photograph of an ethnic lynching with the

caption, “LOVE IS . . . Doing whatever is necessary.”                          Another

posting showed guns and gun-cleaning equipment with the caption

“Rankin’s box of vengeance” and the comment that it would be

better if Rankin were “dirtying” the guns.                   The district court

concluded that the postings were “inflammatory” and decided to

bifurcate the issue of punitive damages from the rest of the

trial,   allowing     the    Facebook   evidence      only    at    the       punitive

damages stage.



                                        5
     Third, Johnson contests the district court’s decision to

exclude     an    autopsy       photograph.           At    trial,     Johnson     called

Virginia Assistant Chief Medical Examiner Elizabeth Kinnison—the

doctor     who    performed         the    autopsy    on    Denyakin—as       an   expert

witness.         Kinnison      testified       regarding       a   gunshot      wound    on

Denyakin’s right hand.               According to Kinnison, “[t]he way that

the edges of [the wound] tore made me favor that [the bullet]

went from the palm of his hand to the back of his hand, but I’m

not absolutely certain that it couldn’t have gone from back to

front.”         Johnson sought to admit a photograph of the wound,

claiming that it showed that Denyakin’s hand could not have been

in   his    pants      at    the     time    of     the    shooting    because      people

typically       insert      their    hands   into     their    pants   with     the     palm

facing the body.             The court declined to admit the photograph

following this exchange with Kinnison:

     THE COURT:              The issue was if this would help her
                             opinion or help her be more sure.
     . . .

     THE COURT:              Does that photograph, Dr. Kinnison,
                             assist you in making any different
                             conclusion?
     THE WITNESS:            No, ma’am.

The court held that the photograph’s “prejudicial value clearly

outweighs any probative value on [Kinnison’s] testimony.”

     On March 1, 2012, the jury returned a verdict in favor of

Rankin     on    all     counts.          Johnson    filed    this     timely      appeal,


                                              6
challenging   the     aforesaid     evidentiary        decisions.       We     have

jurisdiction pursuant to 28 U.S.C. § 1291.



                                     II.

     Johnson contends that the district court erred in admitting

prior bad act evidence that “portrayed Denyakin as . . . an

alcoholic, an abuser of women, and that he had previously been

arrested by a different police officer.” 2              Most of this evidence

stemmed   from     Denyakin’s     February       21,   2011,   encounter       with

police,   during    which   a   police       officer   informed   him   that   the


     2
       Johnson also challenges evidence “portray[ing] Denyakin as
a ‘foreigner’ and an illegal alien.”    The evidence showed that
Denyakin was from Kazakhstan and went by the nickname “KGB,”
which were simply facts of the case that Johnson’s own witnesses
discussed.    Rankin presented minimal evidence of Denyakin’s
immigration status through Denyakin’s brother’s deposition.
When Rankin asked Denyakin’s brother whether Denyakin had been
“arrested at any time before” the day of his death, his brother
answered “yes” and explained that “[t]he arrest was connected
with immigration policy.”    The deposition does not include any
further discussion of this arrest. This isolated comment hardly
“paint[s] Denyakin as a dangerous person of bad character” as
Johnson contends.    Furthermore, this evidence did not pervade
the trial to the extent that evidence of immigration status did
in the cases Johnson cited in the memorandum he references in
his reply brief.    See, e.g., TXI Transp. Co. v. Hughes, 306
S.W.3d 230, 245 (Tex. 2010) (noting that the plaintiff “sought
to hedge his theory by calling attention to [the defendant’s]
illegal immigration status whenever he could”); Maldonado v.
Allstate Ins. Co., 789 So. 2d 464, 466, 470 (Fla. Ct. App. 2001)
(deciding that the prejudicial effect of the defendant’s
immigration status outweighed its probative value when that
status was “a central feature” at trial).    We therefore do not
further consider this portion of Johnson’s argument.



                                         7
police      could      shoot    him    if   he      did   not        comply   with     their

instructions.          Although he was highly intoxicated, Denyakin was

able to walk without stumbling and behave violently toward his

girlfriend.

       We     review     the    district      court’s      rulings         regarding    the

admissibility       of    evidence      for       abuse   of    discretion.          United

States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011).                            A district

court abuses its discretion when it acts arbitrarily, see id.,

or    applies    “erroneous       legal     principles         to    the   case,”    United

States v. Mason, 52 F.3d 1286, 1290 (4th Cir. 1995).                           This Court

has     established        a     four-part         test        for     determining      the

admissibility       of    prior       act   evidence      under        Federal   Rule    of

Evidence 404(b):

       (1) The evidence must be relevant to an issue, such as
       an element of an offense, and must not be offered to
       establish the general character of the defendant. In
       this regard, the more similar the prior act is (in
       terms of physical similarity or mental state) to the
       act being proved, the more relevant it becomes. (2)
       The act must be necessary in the sense that it is
       probative of an essential claim or an element of the
       offense. (3) The evidence must be reliable. And (4)
       the   evidence’s    probative   value   must    not   be
       substantially   outweighed   by  confusion   or   unfair
       prejudice in the sense that it tends to subordinate
       reason to emotion in the factfinding process.

Cole, 631 F.3d at 154 (quoting United States v. Johnson, 617

F.3d 286, 296-97 (4th Cir. 2010)).

       With    respect     to   the    first      step    of    this    inquiry,     Rankin

contends that the evidence is relevant for two reasons that are

                                              8
unrelated to Denyakin’s general character.            First, the evidence

demonstrates that Denyakin was capable of charging at Rankin

while extremely intoxicated, which Johnson disputed.                  Second,

the evidence shows that Denyakin was on notice that he would be

shot if he did not comply with Rankin’s instructions, which is

relevant to Rankin’s assumption of the risk and contributory

negligence defenses.

       Johnson questions both of Rankin’s arguments in favor of

the relevance of this evidence.        First, Johnson argues that the

evidence merely shows Denyakin’s past experience with alcohol,

which is unrelated to the true issue in this case:                 Denyakin’s

ability to attack a police officer.        We disagree.        The events of

February 21, 2011, demonstrate that Denyakin could walk, respond

lucidly to a police officer, and behave violently while drunk.

The     testimony    regarding     Denyakin’s         alcoholism      further

illustrates   his   heightened   ability   to   act    while    intoxicated.

Specifically, the testimony shows that Denyakin had developed a

tolerance to alcohol that allowed him to function with a high

BAC.    We therefore find that the evidence in question speaks to

Denyakin’s ability to function while intoxicated, which bears on

whether Denyakin could have charged at Rankin while drunk.

       Second, Johnson contends that the contributory negligence

defense involves an objective inquiry, rendering irrelevant the

question of whether Denyakin was on notice that he could be

                                   9
shot.          However,       pursuant         to      Virginia     law,       contributory

negligence has a subjective component:                         it “requires sufficient

evidence of knowledge on the part of [the] plaintiff of the

danger to be guarded against.”                      Philip Morris, Inc. v. Emerson,

368 S.E.2d 268, 280 (Va. 1988); see also Arndt v. Russillo, 343

S.E.2d    84,    88    (Va.    1986)       (“To      establish     th[e]    [contributory

negligence] defense, [the defendant] was required to prove that

[the plaintiff] knew or should have known that [the plaintiff]

would    drive    recklessly         .    .    .     .”).      Furthermore,      Virginia’s

assumption of the risk defense requires the defendant to prove

that the plaintiff “fully appreciated” “the nature and extent of

the risk” and “voluntarily incurred” that risk.                            Monk v. Hess,

191 S.E.2d 229, 230 (Va. 1972) (quoting Leslie v. Nitz, 184

S.E.2d 755, 757 (Va. 1971)) (internal quotation marks omitted).

This    certainly      is     a     subjective         inquiry.         Accordingly,      the

district      court    did    not    err       in    determining    that    the    evidence

regarding Denyakin’s alcohol abuse and actions on February 21,

2011, was relevant.

       The evidence in question also survives the second step of

the above test because “it is probative of an essential claim.”

Cole,    631    F.3d    at    154.        Each       of     Johnson’s   claims    turns    on

whether Rankin was justified in using lethal force, and evidence

that illustrates Denyakin’s ability to charge while intoxicated—

such     as    the     February          21,    2011,        incident    and     Denyakin’s

                                                10
alcoholism—speaks to whether Rankin was so justified.                            The third

step of the above test—the reliability of the evidence—is not at

issue in this appeal.

       Regarding the fourth step, the district court engaged in a

limited       inquiry      regarding       whether        the   prior    act    evidence’s

probative value outweighed its prejudicial effect under Federal

Rule    of     Evidence     403.         After      the    district     court    overruled

Johnson’s objection that the evidence constituted hearsay, the

district court noted that the evidence was “highly relevant to

contributory negligence, because . . . a person has for a second

time knowingly put themselves in the same path of danger.”                              The

court        also   gave      a       cautionary     instruction        to     combat   any

prejudice.          In      this        way,   the    district         court    implicitly

recognized that the evidence’s probative value outweighed its

prejudicial effect.               This Court has explained that, “[a]s long

as     the     record    as       a    whole     indicates      appropriate       judicial

weighing, we will not reverse for failure to recite mechanically

the appropriate balancing test.”                     United States v. Lewis, 780

F.2d 1140, 1142 (4th Cir. 1986).                      We therefore determine that

the district court did not abuse its discretion in concluding

that the evidence in question satisfies Rule 403.                              Because the

evidence       regarding      Denyakin’s         alcoholism      and    prior    encounter

with police complies with this Court’s four-part test, we hold



                                               11
that the district court did not err in admitting this evidence

pursuant to Rule 404(b).



                                           III.

       Next, Johnson contends that the district court erred in

excluding Rankin’s Facebook postings from the liability phase of

the trial.         At the time of trial, Johnson contended that the

postings       were    “particularly       relevant          to   [Rankin’s]       motive,

intent, and state of mind as it relates to [Johnson’s] punitive

damages claims under § 1983 and the state tort claims” and “go

towards the issue of reckless or callousness under the Supreme

Court’s test [for punitive damages in Smith v. Wade, 461 U.S.

30,    56    (1983)].”           Johnson   now    contends        that     the    Facebook

postings speak to Rankin’s credibility, implying that they show

Rankin was motivated to intentionally engage in ethnic violence—

such    as   shooting       an   immigrant—and         lie   about   why     he    did   it.

Because Johnson failed to preserve his objection on credibility

grounds, we review the district court’s ruling only for plain

error.       See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174

(1988) (to preserve an objection to the exclusion of evidence,

its proponent must “mak[e] known . . . the party’s objection

. . . and the grounds therefor”).                 To reverse, there must be (1)

an    error,    (2)   which      is   plain,     (3)    which     affects    substantial

rights,      and      (4)    which     seriously         affects      “the        fairness,

                                            12
integrity,     or     public        reputation        of    judicial        proceedings.”

United States v. Olano, 507 U.S. 725, 732-37 (1993).

      The    trial    court    excluded       the       Facebook     postings     on   the

grounds that they were (1) “inflammatory” and (2) irrelevant due

to the standard that the Supreme Court set forth in Graham v.

O’Connor, 490 U.S. 386 (1989).                    In Graham, the Supreme Court

held that the plaintiff in a § 1983 excessive force case does

not   bear   the     burden    of    proving      that     the   officer      acted    with

“subjective    motivations”          that     were      “malicious     and    sadistic.”

490 U.S. at 397.          The Supreme Court also explained, however,

that evidence of the officer’s “ill-will” can come into play in

“assessing     the     credibility      of       an   officer’s      account     of    the

circumstances that prompted the use of force.”                       Id. at 399 n.12.

Therefore,    contrary        to    Rankin’s      assertions,        Graham     does    not

indicate that evidence of motive—such as the Facebook postings—

is irrelevant to the § 1983 calculus.

      Rankin’s       motive    and     credibility           could    also     weigh    on

Johnson’s gross negligence and battery claims.                              In Virginia,

“‘[g]ross negligence’ is that degree of negligence which shows

an utter disregard of prudence amounting to complete neglect of

the safety of another,” Frazier v. City of Norfolk, 362 S.E.2d

688, 691 (Va. 1987), and battery is the “unwanted touching which

is neither consented to, excused, nor justified,” Koffman v.

Garnett,     574     S.E.2d    258,     261      (Va.      2003).      If    Rankin    was

                                            13
untruthful       about    whether      Denyakin     charged       at    him,    it     could

affect both of these claims by showing the unreasonableness of,

and lack of justification for, his actions.                       The district court

therefore erred in concluding that the evidence was irrelevant

per se because it spoke to Rankin’s motivation.

      But the error was not plain.                    Apart from the credibility

issue,     the     Facebook       postings      are       irrelevant      to        Rankin’s

liability    in     this    case.        As    we     explained        above,       Rankin’s

motivation does not affect his liability under § 1983 due to the

Supreme Court’s Graham decision.                  Rankin does not dispute that

he intended to shoot Denyakin, and his motive is irrelevant to

the battery inquiry apart from his justification for doing so.

See id.     Finally, because the tort of negligence is governed by

an objective standard, see Sturman v. Johnson, 163 S.E.2d 170,

176 (Va. 1968); see also Va. Elec. & Power Co. v. Dungee, 520

S.E.2d 164, 174 (Va. 1999), Rankin’s Facebook postings are not

pertinent    to     this     claim     beyond       their       bearing    on       Rankin’s

credibility.         In    sum,      although       the     Facebook      postings      are

relevant    to    Rankin’s       liability,     they      are    relevant      in    such   a

limited way that we cannot say that their exclusion affected

Johnson’s “substantial rights” or contravened the fairness and

integrity of the trial.           See Olano, 507 U.S. at 734.

      This is especially so given that, in addition to excluding

the   evidence     for    lack    of   relevance,         the   district       court    also

                                          14
found that it was inadmissible under Federal Rule of Evidence

403.     The    court   agreed       with    Johnson’s        assessment     that      the

postings were particularly probative with respect to punitive

damages.       However, the court explained that the postings had

limited probative value with respect to Rankin’s liability under

the Graham objective reasonableness test.                     The court also found

the postings “inflammatory” and opined that they could “take[]

everything off the track of what the jury should be deciding”

and “could skew a trial.”              In light of the postings’ limited

relevance      to   Rankin’s    liability        and    their       high   prejudicial

value,   we    determine      that   the    district     court      did    not   err    by

excluding these postings from the liability phase of the trial

pursuant to Rule 403.



                                           IV.

       Finally, Johnson argues that the district court erred in

excluding      an   autopsy    photograph        showing      a    gunshot   wound      to

Denyakin’s      hand.      Johnson     contends        that       the   photograph      is

especially probative of Rankin’s credibility because it shows

that the bullet entered Denyakin’s hand through the palm, making

it unlikely that Denyakin’s hand was in his pants at the time of

the shooting.       The court found that the photograph’s prejudicial

effect outweighed its probative value after Kinnison—the doctor

who conducted the autopsy—testified that the photograph did not

                                            15
make her any more sure of whether Denyakin’s hand was palm-

forward when the bullet entered it.             Kinnison testified that she

“favored” the theory that the bullet entered through Denyakin’s

palm based on the skin “tags”—or tears—on his hand.                   She then

illustrated how she believed the bullet entered Denyakin’s hand

using her own hand.         However, Kinnison emphasized that she was

“not entirely certain” about how the bullet hit Denyakin’s hand

or what position he was in when he received the injury.

     Johnson contends that the district court erred in hinging

the photograph’s admissibility on whether it would aid Kinnison

in illustrating her testimony.               However, the court simply used

the photograph’s usefulness to Kinnison to gauge its probative

value    for   the   Rule   403   balancing       test.     This   Court   has

recognized that autopsy photographs are highly prejudicial, 3 and

it will not disturb a district court’s decision regarding their

admissibility    “absent    a   clear    abuse    of   discretion.”     United

States v. Analla, 975 F.2d 119, 126 (4th Cir. 1992).                  In light


     3
       Johnson recognizes that photographs of dead bodies are
highly prejudicial, arguing that the district court’s ruling
regarding the autopsy photograph was arbitrary and capricious
because it admitted a more graphic photograph from the scene of
the shooting.    However, Johnson simply cites the photograph
itself as support for his argument and does not explain why the
district court’s decision was arbitrary or capricious.       We
therefore see no reason to conclude that the district court
abused its discretion by disallowing the autopsy photograph but
admitting the scene photograph.



                                        16
of the abuse of discretion standard and the prejudicial effect

of autopsy photographs, we determine that the district court did

not   err   in    excluding     the     photograph,       even   if    it   had    some

probative value.



                                          V.

      For the foregoing reasons, we hold that the district court

did   not    abuse    its     discretion       in   (1)   allowing     evidence     of

Denyakin’s       alcoholism    and    prior     encounter      with    police     under

Federal Rule of Evidence 404(b), (2) excluding Rankin’s Facebook

postings     from     the      liability        phase     of     the    trial,      and

(3) excluding the autopsy photograph showing Denyakin’s hand.

We    therefore       affirm      the      district        court’s      evidentiary

determinations.

                                                                            AFFIRMED




                                          17
