                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0218n.06

                                         No. 15-5761

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


ROBERT WAYNE FATHERA,                                  )                       FILED
                                                       )                  Apr 21, 2016
       Plaintiff-Appellant,                            )             DEBORAH S. HUNT, Clerk
                                                       )
              v.                                       )
                                                       )
SMYRNA POLICE DEPARTMENT,                              )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
       Defendant,                                      )      COURT FOR THE MIDDLE
                                                       )      DISTRICT OF TENNESSEE
and                                                    )
                                                       )
GARY SCHOON,                                           )
                                                       )
       Defendant-Appellee.                             )



BEFORE: SUTTON and GRIFFIN, Circuit Judges; and OLIVER, District Judge.*

       GRIFFIN, Circuit Judge.

       In November 2009, plaintiff Robert Wayne Fathera led defendant Gary Schoon of the

Smyrna Police Department on a high-speed chase through two Tennessee counties. While still

serving time for the charges arising from that chase, Fathera sued Schoon for excessive force

under 42 U.S.C. § 1983. The jury sided with Schoon, finding he did not use excessive force

during Fathera’s arrest. Fathera moved for a new trial, alleging that impermissible hearsay and




       *
       The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the
Northern District of Ohio, sitting by designation.
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Fathera v. Smyrna Police Dep’t


character evidence tainted his case. The district court denied the motion and Fathera appeals.

Finding no error, we affirm the district court’s judgment.

                                                   I.

        Fathera and Schoon stipulated to the following facts at the outset of trial:

        On November 9, 2009, plaintiff received a phone call from Darrell Lambert
        asking for a ride. Plaintiff knew that Lambert was planning to “sell some guy
        some pills.” Plaintiff and . . . his girlfriend, Katie Black, left plaintiff’s mother’s
        house in Black’s white Ford Mustang and picked up Lambert and his girlfriend at
        their house. They stopped at the Spur Station in Smyrna and bought a 12 pack of
        beer, of which plaintiff drank one to three beers.

        The group arrived at the Fate Sanders Marina in Smyrna, where Lambert was set
        to meet his customers. Lambert talked to his pill customers briefly before coming
        back to the car and ordering Black, who was driving, to leave. The customers
        started following the Mustang when the group left the marina, and both cars
        eventually stopped in a subdivision in Smyrna. As plaintiff was exiting the
        vehicle, Lambert bumped into the door and knocked him to the ground. Plaintiff
        got into the driver’s seat, and he and Lambert began to drive away from the scene.

        Officer Schoon initially received information that the . . . suspects in the white
        Mustang were wanted for robbery.[1] Officer Schoon made contact with the white
        Mustang driven by plaintiff . . . . When Officer Schoon attempted to stop the
        vehicle, plaintiff fled. Officer Schoon [kept] his lights and sirens on throughout
        the entire pursuit.

        Plaintiff led Officer Schoon on a 13-minute pursuit. . . . The pursuit occurred as
        depicted on the dashboard camera video from Officer Schoon’s vehicle.

        On the ramp to enter I-24, plaintiff’s Mustang sideswiped another motorist, which
        broke the mirrors off both vehicles. The pursuit occurred during rush-hour traffic.

        Plaintiff made a quick exit off I-24 . . . cutting across several lanes of traffic. . . .
        Plaintiff continued to flee [until reaching] the parking lot of a rock quarry.
        Officer Schoon stopped on the small bridge that led into the area.

(Footnote added.)     The parties dispute what happened when defendant moved in to arrest

plaintiff.

        1
        Lambert’s customers evidently reported the robbery after Lambert took their money
without providing any drugs.
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        Fathera testified that Schoon approached “with his gun out,” “screaming” to “get the fuck

on the ground.” Fathera said he complied, lying flat “on [his] stomach.” Schoon “jumped on

[Fathera’s] back,” handcuffed him, and began striking his face, hitting both sides as Fathera

“turn[ed] [his] head back and forth.” Fathera sustained facial fractures and required stiches over

his right eye.

        Schoon testified that he yelled and drew his weapon because he knew Fathera and

Lambert had been involved in a robbery, could be armed, and were evidently willing to flee from

police. He denied that plaintiff immediately complied with his orders. Instead, Schoon said

Fathera initially walked away from the Mustang, then “crouch[ed]” down in a “modified push-up

position.” Schoon kneeled on Fathera’s back to force him flat on the ground. But Fathera

“started pushing back up again.” To subdue Fathera, Schoon “applied a brachial stun to his

neck,” a technique he learned in police training to temporarily disable a suspect. Per Department

policy, Schoon documented the encounter in a use-of-force incident report and in Fathera’s arrest

report. He denied intentionally striking Fathera and claimed he used only the force necessary to

effectuate arrest.

        Smyrna authorities charged plaintiff with “aggravated assault, driving on a . . . revoked

license, . . . leaving the scene of an accident, reckless endangerment, driving while intoxicated,

violation of the implied consent law, and evading arrest.” Plaintiff pled guilty to driving while

intoxicated (among other charges), but said he did so in order to receive a lesser sentence and

maintained he was not drunk or intoxicated at the time of his arrest.

        Plaintiff called Lambert as a supporting witness, while defendant presented Officer

George Gant and Sergeant Robert Allen of the Metropolitan Nashville Police Department. Gant

was one of several “Metro” officers who responded to Smyrna’s request for back-up and helped

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Fathera v. Smyrna Police Dep’t


Schoon take Fathera and Lambert into custody. Allen was defendant’s expert witness. He

opined that “Officer Schoon used an appropriate, justifiable, and reasonable amount of force in

his contact with Mr. Fathera.” Ultimately, the jury found defendant’s proofs more persuasive

and concluded that Schoon did not use excessive force in arresting Fathera.

       Plaintiff moved for a new trial following the verdict. He argued that: (1) the verdict was

against the clear weight of the evidence; (2) Gant and Allen offered improper hearsay testimony;

and (3) the wrongful admission of character evidence resulted in a prejudicial verdict. The

district court denied the motion. Plaintiff urges us to reverse its decision, reasserting only his

hearsay and character evidence claims on appeal.

                                                 II.

       “Under Federal Rule of Civil Procedure 59, a new trial is required when the original ‘trial

was unfair to the moving party in some fashion.’” Mich. First Credit Union v. CUMIS Ins.

Soc’y, Inc., 641 F.3d 240, 248 (6th Cir. 2011) (quoting Mike’s Train House, Inc. v. Lionel,

L.L.C., 472 F.3d 398, 405 (6th Cir. 2006)) (brackets omitted). We review the denial of a motion

for a new trial for abuse of discretion. Id. at 245. An abuse of discretion occurs when the

reviewing court is left with “a definite and firm conviction that the trial court committed a clear

error of judgment.” Id. “If the verdict is supported by some competent, credible evidence,” the

trial court does not abuse its discretion in denying the motion. Id. at 246 (alteration omitted).

       Fathera contends his trial was unfair due to the district court’s erroneous admission of

hearsay and character evidence. Securing a new trial, however, requires more than proof of a

mistake in the admission of testimony. “A motion for a new trial will not be granted unless the

moving party suffered prejudice.” Barnes v. City of Cincinnati, 401 F.3d 729, 743 (6th Cir.

2005). Thus, we can vacate the jury’s verdict only if Fathera establishes that “the testimony’s

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admission amounted to more than harmless error.” Field v. Trigg Cty. Hosp., Inc., 386 F.3d 729,

736 (6th Cir. 2004). Evidentiary error is harmless “unless it is more probable than not that the

error materially affected the verdict.” Barnes, 401 F.3d at 742.

                                                A.

        Fathera first challenges the district court’s ruling on his hearsay objections to Gant’s and

Allen’s testimonies. We review the district court’s evidentiary rulings for abuse of discretion,

Nolan v. Memphis City Sch., 589 F.3d 257, 264 (6th Cir. 2009), but “review de novo a district

court’s conclusions of law, such as in this case, whether evidence offered at trial constituted

hearsay within the meaning of the Federal Rules of Evidence,” Field, 386 F.3d at 735.

        Plaintiff’s hearsay complaint focuses on Gant’s and Allen’s responses to defense

counsel’s inquiries regarding whether any Metro officers reported Schoon for excessive force.

Sergeant Allen testified that the Metro Department maintains “a policy that says that you must

report misconduct. And that means anything, from an officer stealing a candy bar in a store to an

officer using excessive force on a subject.” In addition to reporting excessive force, Metro

officers are expected “to go stop it” and intervene when they witness wrongdoing. Defense

counsel asked Sergeant Allen whether any Metro officer felt moved to intervene during

plaintiff’s arrest:

        Q. . . . In your view of any of the information in this case, did you come across
        any evidence, any indication at all, that any Metro officer went over to Officer
        Schoon to intervene, to get him off of Mr. Fathera?

        A. No.

Plaintiff’s counsel objected, asserting that the question “just blatantly call[ed] for hearsay, and

. . . also seem[ed] beyond the scope of” Allen’s expertise. The district court overruled the

objection: “I don’t believe that calls for a hearsay answer.” Responding to defense counsel’s

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follow-up question, Allen explained that if the officers had witnessed an assault, it would have

been reflected in the appropriate “paperwork”:

       Q. . . . You—you didn’t see any indication that a Metro officer had to come on
       the scene and basically pull him off Mr. Fathera?

       A. No. And to go that one step further, if they had have seen that, those two
       Metro officers arriving on the scene of Mr. Fathera getting arrested would have
       seen that, they would have to contact their supervisor, they would have had to
       have done a report, and it would be on all these pieces of paperwork that we have
       here.

Although Fathera argues that Sergeant Allen’s reference to “paperwork” and “report[s]” exposes

the hearsay character of his testimony, he did not renew his objection on this or any other basis at

trial. See Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749–50 (6th Cir. 2005) (to preserve an

evidentiary argument for appeal a party must “at a minimum alert the district court to the issue

that it is called upon to decide”). Nevertheless, assuming that plaintiff preserved this issue, his

argument fails on the merits.

       Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

Fed. R. Evid. 801(c). Allen’s testimony that he found no evidence of a Metro officer intervening

to prevent Schoon’s alleged assault on Fathera is not hearsay because it does not concern an out-

of-court “statement.”

       Non-verbal conduct constitutes a “statement” for hearsay purposes only if the declarant

intends it as an assertion. See Fed. R. Evid. 801(a). Plaintiff cites no evidence suggesting that

the Metro officers intended to convey an assertion when they declined to file an excessive force

report against Schoon.    This was the very reason Allen concluded Schoon did not assault

Fathera; his opinion was founded not upon statements, but upon the absence of statements—the

fact that “there’s no paper trail of any assault.” Fathera concedes, moreover, that an officer may


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Fathera v. Smyrna Police Dep’t


have multiple reasons not to report excessive force, making the conduct too vague to function as

a definitive non-verbal assertion: “In reality, it is simply not true that police have to report an

assault. Potentially, the police could be willing to cover up wrongdoing. Or they might simply

be too far [away] to see anything relevant. Or they might plausibly claim not to have seen

anything relevant.” Still another possibility is the one Sergeant Allen deduced: the officers did

not report an assault because it did not occur. The district court did not abuse its discretion in

admitting this non-hearsay evidence.

       The same goes for Fathera’s challenge to Gant’s testimony. Gant arrived at the rock

quarry just as Schoon exited his vehicle and ran toward plaintiff. Gant went in the opposite

direction in pursuit of Lambert. When he apprehended Lambert, Gant was facing away from

Fathera and Schoon and did not witness or overhear their interaction. Additional Metro officers

reported to the scene seconds after Schoon and Gant secured Fathera and Lambert. Plaintiff

contends the district court improperly admitted Gant’s response to defense counsel’s question

regarding the other officers’ statements:

       Q. . . . Do you remember talking to any Metro officers on the scene after both
       men were in custody about anything related to what Officer Schoon did to or with
       Mr. Fathera?

       [Plaintiff’s counsel]: Your Honor, I object to the hearsay, I think.

       [Defense Counsel]: I’m not asking; I’m just—

       The Court: I don’t believe that calls for a hearsay response. I’ll overrule the
       objection.

       A: I don’t remember having any conversations regarding that matter.




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Here, too, Fathera points to a second instance of “hearsay” in Gant’s answer to a follow-up

question, when Gant stated he was “not aware” of any Metro officers “talk[ing] about or

ma[king] any reports” of Schoon’s alleged excessive force. But here, too, Fathera is mistaken.

       Plaintiff argues “it was perfectly clear that the officers at the scene would have been

making verbal statements of some type.” “As such,” he reasons, Gant’s “testimony about an

absence of accusations was hearsay.” This is incorrect. Plaintiff again sets forth no evidence

demonstrating the Metro officers intended their silence to be an assertion. See, e.g., United

States v. Peyton, 183 F. App’x 539, 546 (6th Cir. 2006) (“Agent Behar testified that he did not

suggest to Williams how many piercings Peyton had. . . . Agent Behar did not intend his silence

as to Peyton’s piercings as an assertion.”). Gant’s testimony did not disclose an out-of-court

“statement.” See Fed. R. Evid. 801(a). “The testimony, then, was not hearsay.” Peyton, 183 F.

App’x at 546.

       Because “the purported errors identified by [Fathera] do not constitute error in the first

instance,” Fathera cannot establish that he suffered the prejudice necessary to justify vacating the

jury’s verdict. Mich. First Credit Union, 641 F.3d at 251. Plaintiff is not entitled to a new trial

on hearsay grounds, and the district court did not abuse its discretion in denying him one.

                                                B.

       Plaintiff next takes issue with the district court’s admission of character evidence—the

bulk of which he did not object to at trial. We review Fathera’s unpreserved evidentiary claims

for plain error. Fed. R. Evid. 103(e). To establish plain error, plaintiff must show: “(1) error,

(2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461,

466–67 (1997) (internal quotation marks and brackets omitted). When all three conditions are

met, we may exercise our discretion to review the error, “but only if (4) the error seriously

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affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 467 (citation

and brackets omitted). Beyond this, and even where plaintiff preserved his objections, the

requisite showing to set aside the verdict in favor of a new trial still applies; plaintiff must

demonstrate “it is more probable than not” that wrongful admission of character evidence

“materially affected the verdict.” Barnes, 401 F.3d at 742; see also Nolan, 589 F.3d at 264–65

(“a new trial is not warranted if the abuse of discretion [in an evidentiary ruling] constitute[s]

harmless error”).

        “Losers in a trial can go hunting for relief on appeal with a rifle or a shotgun. The rifle is

better.” Gagan v. Am. Cablevision, Inc., 77 F.3d 951, 955 (7th Cir. 1996). Fathera elects the

shotgun.   He raises seven claims of error, all revolving around the broader argument that

inadmissible character evidence depicted Schoon as a “[h]ero, and [s]aint” to the jury, while

portraying him as a “[d]espicable [l]owlife.” Specifically, Fathera asserts the district court

wrongly admitted evidence of: (1) his criminal history; (2) his intoxication at the time of arrest;

and (3) Schoon’s positive character. Plaintiff also faults the court for allowing defense counsel

to: (4) suggest in opening argument that Fathera stole the Mustang used in the police chase;

(5) question Fathera regarding his failure to pay for the damage he caused to the van he

sideswiped; (6) question Fathera and Lambert about Fathera’s decision to take his girlfriend’s

daughter along with him for Lambert’s drug sale; and (7) ask Lambert whether he made any

“racial type of comments” while inside the police vehicle following his arrest. None of these

claims hits the target.

                                                  1.

        Plaintiff first disputes defendant’s references to his “criminal history generally,” without

regard to the limits on evidence of prior felony convictions under Federal Rule of Evidence 609.

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Fathera v. Smyrna Police Dep’t


Yet plaintiff laid himself bare to this attack by introducing his prior convictions. “[W]hen a

party opens up a subject, there can be no objection if the opposing party introduces evidence on

the same subject.” Francis v. Clark Equip. Co., 993 F.2d 545, 550 (6th Cir. 1993). “A party can

. . . open the door to . . . evidence through statements made during his or her oral argument.”

Helfrich v. Lakeside Park Police Dep’t, 497 F. App’x 500, 509 (6th Cir. 2012) (internal

quotation marks omitted). Fathera’s counsel did just that in his opening statement, at times

venturing into greater detail than necessary:

       I will admit to you, Mr. Fathera’s criminal history is abysmal. He is not any kind
       of saint. That will be proven. And, frankly, you know, about the worst felony
       that he’s got on his record, just to let you in on a preview, is, he’s got an
       attempted murder [sic] from about 16 years back when he was younger. Mr.
       Fathera isn’t a saint. . . .

Plaintiff’s counsel was also forthright about the fact that Fathera’s arrest was the result of a drug

deal gone wrong and allowed Fathera to appear before the jury in “prison garb.” Although

Fathera preserved this claim (at least in part) by objecting to defense counsel’s question about his

status as a “career” criminal under Tennessee law, the district court correctly found Fathera had

“open[ed] the door” to the issue. In light of his strategic decision, plaintiff cannot complain on

appeal. Admission of this evidence was not an abuse of discretion.2

       The same goes for defense counsel’s “argumentative” questions relating to Fathera’s

clipping of a van while attempting to evade Schoon. Plaintiff stipulated to inform the jury that

his “Mustang sideswiped another motorist, which broke the mirrors off both vehicles,” leading to

criminal charges including “driving on a revoked . . . license, . . . leaving the scene of an


       2
         Insofar as plaintiff asserts he filed a motion in limine to prevent disclosure of his prior
conviction for resisting arrest, it is not clear that the district court granted his motion. In any
event, it was Fathera—not defense counsel—who volunteered testimony concerning this
particular conviction.
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Fathera v. Smyrna Police Dep’t


accident, reckless endangerment, [and] driving while intoxicated.” By this stipulation, plaintiff

opened himself to cross-examination regarding the accident. Francis, 993 F.2d at 550.

                                                 2.

       Fathera also argues the district court erred in admitting evidence of the parties’ prior

conduct. See Fed. R. Evid. 404(b)(1) (prohibiting the admission of “[e]vidence of a crime,

wrong, or other act” to show propensity). His complaint here is two-fold: Fathera disputes

defendant’s introduction of jail medical records revealing his intoxication at the time of arrest; as

well as Schoon’s “Officer of the Year” award, which Schoon received after rescuing a drowning

civilian. Plaintiff, however, waived his right to challenge both items.

       “Waiver is the intentional relinquishment or abandonment of a known right” achieved by

act or omission. Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899, 905 & n.6 (6th Cir. 2006)

(brackets and citation omitted). Fathera did not affirmatively oppose mention of or testimony

regarding Schoon’s award and, when prompted by the district court, expressly denied any

objection to its admission, thereby “intentional[ly] relinquish[ing]” his right to challenge that

decision on appeal. Fathera waived his objection to the introduction of jail medical records—

stating that he “[s]mell[ed] strongly of alcohol,” “respond[ed] slowly to verbal stimuli,” spoke

with “slurred” speech, and tested positive for benzodiazepine, marijuana, and opiates at the time

of his arrest—in much the same manner. Having abandoned his right to challenge this evidence

in the trial court, plaintiff cannot now claim error based on its admission. See CFE Racing

Prods., Inc. v. BMF Wheels, Inc., 793 F.3d 571, 587 (6th Cir. 2015).

       Waiver similarly forecloses plaintiff’s remaining claims, though for different reasons.

Fathera does not identify which Rule(s) of Evidence the district court violated in permitting

defense counsel’s questions regarding the involvement of his girlfriend’s daughter, Lambert’s

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“racial type of comments,” or counsel’s suggestion that Fathera stole the Mustang. Nor does he

explain how these unpreserved errors affected his substantial rights. Issues addressed in so

perfunctory a manner “unaccompanied by some effort at developed argumentation, are deemed

waived.” White Oak Prop. Dev., LLC v. Washington Twp., 606 F.3d 842, 850 (6th Cir. 2010)

(quoting United States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004)). Plaintiff again fails to

show that the admission of character evidence was “error in the first instance” and cannot

establish prejudice warranting a new trial. Mich. First Credit Union, 641 F.3d at 251.

       Importantly, we would reach the same no-prejudice conclusion even if we agreed that the

district court admitted improper character evidence, because plaintiff has not established the

verdict was the probable result of that wrongly admitted evidence—as opposed to admissible

evidence that was simply unfavorable to his case. In other words, plaintiff cannot demonstrate

that improper evidence “materially affected the verdict,” Barnes, 401 F.3d at 742, because the

record is replete with other, proper evidence bringing his credibility and sobriety into question,

including: his counsel’s disclosures regarding his “abysmal” criminal history; his stipulation to

drinking “one to three beers” before the police chase; his admitted history of drug and alcohol

abuse; his testimony suggesting that he was serving a prison sentence for an unrelated driving

under the influence conviction at the time of trial; Gant’s testimony that police found “a lot of

empty beer cans [and] a bottle of some kind of liquor” inside the Mustang; and Lambert’s

acknowledgment that he was “pretty much intoxicated” during the incident.3                Indeed,

“[p]laintiff’s own testimony”—that he pled guilty to driving while intoxicated in hopes of a

       3
         Although called as a supporting witness, Lambert—a felon with a prior forgery
conviction—contradicted plaintiff’s claims. Whereas Fathera identified Schoon as the lone
assailant, Lambert claimed “six or seven” officers participated in the attack. He also disclosed
other explanations for plaintiff’s injuries, stating that the intended pill buyer attempted to run
Fathera over with his car.
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lesser sentence—“show[ed] that he was willing to lie in order to receive a more favorable

judgment.” The district court instructed the jury to consider only the admissible evidence in

rendering a verdict and not to be “swayed by sympathy, bias, prejudice, or favor as to any party.”

We presume it followed that instruction. See CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841

(2009).

          “[I]n close cases[,] the improper admission of prejudicial evidence is all the more

damaging,” and may make the difference at trial. Field, 386 F.3d at 736. This is not one of

those cases. Because the record includes “some competent, credible evidence” to support the

verdict, the district court did not abuse its discretion in denying plaintiff a new trial. Mich. First

Credit Union, 641 F.3d at 246.

                                                  III.

          We affirm the judgment of the district court.




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