UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4963

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

CHRISTOPHER MOORE,

 Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Big Stone Gap. James P. Jones, 

District Judge. (2:11-cr-00004-JPJ-PMS-1)

Submitted: April 29, 2013 Decided: July 5, 2013

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville, 

Virginia, for Appellant. Timothy J. Heaphy, United States 

Attorney, Zachery T. Lee, Assistant United States Attorney, 

Galen B. Bascom, Law Intern, Charlottesville, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Christopher Moore was charged with assault on a 

federal official involving physical contact and inflicting 

bodily injury, in violation of 18 U.S.C.A. § 111(a), (b) (West 

Supp. 2012). A jury convicted Moore of more than simple 

assault, in violation of § 111(a). The court sentenced him to 

twenty-four months’ imprisonment. Moore appeals his conviction, 

raising several challenges to the evidence admitted and excluded 

at trial. Finding no reversible error, we affirm.

Moore first argues that the district court erred in 

permitting the Government to introduce his confession for the 

first time in rebuttal. We review a district court’s decision 

to permit rebuttal evidence for abuse of discretion. United 

States v. Byers, 649 F.3d 197, 213 (4th Cir.), cert. denied, 132 

S. Ct. 468 (2011). The district court is permitted to exercise 

“reasonable control over the mode and order of examining 

witnesses and presenting evidence.” Fed. R. Evid. 611(a). 

“‘Rebuttal evidence is defined as evidence given to explain, 

repel, counteract, or disprove facts given in evidence by the 

opposing party’ or ‘[t]hat which tends to explain or contradict

or disprove evidence offered by the adverse party.’” Byers, 649 

F.3d at 213 (quoting United States v. Stitt, 250 F.3d 878, 897 

(4th Cir. 2001)). “Ordinarily, rebuttal evidence may be 

introduced only to counter new facts presented in the 
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defendant’s case in chief.” Allen v. Prince George’s County, 

Md., 737 F.2d 1299, 1305 (4th Cir. 1984) (citation omitted).

 Moore contends that the confession would have been 

admissible in rebuttal only if he had taken the stand to deny 

committing the offense. Moore also argues that the rebuttal 

testimony prevented him from knowingly and voluntarily waiving 

his right to testify, implying that his choice may have been 

different had he known his confession would later be admitted. 

We conclude the district court did not abuse its 

discretion in admitting Moore’s confession in rebuttal, as the

confession was directly contrary to the evidence adduced in the 

defense’s case-in-chief. And while we recognize that a 

defendant’s decision whether or not to testify “is an important 

tactical decision as well as a matter of constitutional right,” 

Brooks v. Tennessee, 406 U.S. 605, 612 (1972), Moore has not 

established that his right to testify was impermissibly 

infringed by the delayed introduction of his confession. As the 

Government argues, Moore was not wholly deprived of the ability 

to testify in response to the confession, as he could have 

attempted to testify in sur-rebuttal. We therefore find no 

reversible error on this ground. 

Moore next challenges the court’s decision to prevent 

a defense witness from testifying as to whether a video 

presented to the jury showed Moore acting aggressively in the 
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minutes after the alleged assault. We review the district 

court’s evidentiary rulings for abuse of discretion. Johnson, 

617 F.3d at 292. We will not reverse non-constitutional error 

if the government meets its burden to demonstrate that the error 

“did not have a substantial and injurious effect or influence in 

determining the jury’s verdict.” See United States v. Ibisevic, 

675 F.3d 342, 349 (4th Cir. 2012) (internal quotation marks 

omitted).

Relevant evidence is generally admissible unless its 

probative value is substantially outweighed by its cumulative or 

unfairly prejudicial effect. See Fed. R. Evid. 402, 403. “The 

threshold for relevancy is relatively low.” United States v. 

Powers, 59 F.3d 1460, 1465 (4th Cir. 1995). Evidence is 

relevant when “it has any tendency to make . . . more or less 

probable” any fact “of consequence in determining the action.” 

Fed. R. Evid. 401.

Contrary to Moore’s assertions, we conclude that 

exclusion of testimony interpreting the video, from an 

individual who had not witnessed the events depicted in the 

video, did not deprive him of “a meaningful opportunity to 

present a complete defense.” See Crane v. Kentucky, 476 U.S. 

683, 690 (1986) (internal quotation marks omitted). As the 

district court recognized, the jury was as equally capable as 

the witness of interpreting Moore’s conduct in the video. 
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Further, the excluded testimony addressed an issue tangential, 

at best, to the disputed elements of the offense, and another 

witness actually present during the events depicted in the video 

testified that Moore did not act aggressively. Thus, we find no 

error in the district court’s ruling. In any event, we conclude 

any error in the exclusion of this evidence would be harmless. 

See Ibisevic, 675 F.3d at 349 (standard).

Finally, Moore argues that the district court 

improperly permitted the Government to elicit testimony from the 

alleged victim, Jessee Boggs, regarding his medication for 

anxiety and his inability to continue to work as a correctional 

officer as a result of his injury. Because Moore did not object 

to this evidence in the district court, we review it for plain 

error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 

725, 732 (1993). Under this standard, reversal is appropriate 

only if Moore meets his burden to establish that error occurred, 

the error was plain under established law, it affected his 

substantial rights, and it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” United 

States v. Rolle, 204 F.3d 133, 138-39 (4th Cir. 2000) (internal 

quotation marks omitted); see United States v. Marcus, 130 S. 

Ct. 2159, 2164 (2010). An error is plain if it is “clear or 

obvious” under prevailing law, “rather than subject to 
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reasonable dispute.” Marcus, 130 S. Ct. at 2164 (internal 

quotation marks omitted).

Whether the defendant “inflicts bodily injury” is an 

element of a § 111(b) offense. United States v. Campbell, 259 

F.3d 293, 298 (4th Cir. 2001). Moore actively disputed this 

element, asserting that Boggs’ injury was preexisting and not 

the result of his confrontation with Moore. We conclude that 

the challenged testimony, establishing the extent and 

consequences of Boggs’ injury, was relevant to prove the 

existence of the injury and not so unduly prejudicial that its 

admission constituted plain error. 

Accordingly, we affirm the district court’s judgment. 

We deny Moore’s motions for leave to file pro se supplemental 

briefs. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

AFFIRMED