NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0956n.06 No. 11-5099 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

STEVEN HEL FRI CH, Plaintiff-Appellant,

v. L AKESI DE PARK POL I CE DEPARTMENT; CI TY OF L AKESI DE PARK; L AKESI DE PARK CRES TVI EW HI L L S POL I CE AUTHORI TY, Def endants, and OFF I CER MI GUEL

RODRI GUEZ , I ndividually , Def endant- Appellee

.

______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL

FROM THE U

NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF KE NTUCKY OPI NI ON

Before: M OORE, S UTTON, and STRANCH, Circuit Judges. JANE B. STRANCH, Circuit Judge. This ex ce s s i ve-f orce case arises out of Offic er Migue l Rodrigue z’s tasing of Steven Helfr ich, which occur red while Rodrigue z wa s attempting to place Helfr ich into a police car afte r arr esting him. Helfr ich sued Rodrigue z for, among other things, excessive forc e and false arr est under 42 U.S.C. § 1983, assault and battery under Kentucky law, and punitive damag es. After various pretria l and trial ruling s winnowing his claims, his excessive-for ce, assault, and battery claims wer e tried to a jury , which deter mined t h at R o d ri g uez did not use excessive forc e or c ommit assault and battery in arre sting He lfrich a

nd placing him in the car.Hel

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, et al , No. 1 1- 5099 Page 2 Helfr ich appea ls, arg uing that the district court committed sever al ev identiary err ors that

war rant va cating the judg ment and re manding for a new tria l. For the reasons set forth be low, we
AF F IRM the judg ment of the district cour t. I. BACKG ROUND

A. The w eddin g Helfr ich trave led to northern K entucky to attend his c ousin’s wedding on Aug ust 8, 2008.
Be cause the wedding was open bar and transporta tion was provided, Helfr ich acknow ledg ed that he could drink more liberally and that from about 3 p.m. at the wedding and throug h the ear ly morning hours at the hotel bar afte rwa rds, he had at least 8 drinks. But Helfr ich claims that he was not drunk when he left the hotel bar and went to t h e p o o l ar ea at ar ound 2 or 2:30 a.m. A larg e g roup of 1 people we re g ather ed in the pool ar ea, inc luding se vera l wedding g uests. B. The arre st and tasin g Meanw hile, at around 2:30 a.m., Rodrigue z was dispatched to the hotel to as s i s t another police depar

tment on a disorderly persons call. He arr ived at the hotel, spoke with the manag er, and then went to the pool area, wh er e h e s aw a g roup of about 50 people, some of whom had been drinking

. He ordere d the group to go bac k to their rooms twice, but only a few people complied. So Rodriguez then aske d the cr owd, “Who needs to be made a n example of? ” Rodrigue z and Helfr ich’s testimony b egi n t o diverg e at this point, so we summarize eac h version in turn. I n response to Rodrigue z’s question, he hear d someone behind him say , “I ’ll be y our

Helfr ich denied having a problem with a lcohol, but a dmitted that his family phy sician Dr. 1 Ay ers a dvised him to avoid alcohol and diag nosed him with a history of alc ohol abuse.Hel

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, et al , No. 1 1- 5099 Page 3 example.” He t u rn ed and spotted Helfr ich. Rodrigue z testified that he approa ched and order ed Helfr i ch to g o to his room twice, but Helfr ich ref used both order s. Then, noticing that Helfr ich smelled of alcohol, Rodrigue z told him that he was under arr es t for alcohol intox ication and disorderly conduct. Acc ording to Rodrigue z, Helfr ich ref used to comply , and the two men strug g led

as Rodrigue z attempted to place Helfr ich under arr est. The pool g roup started crow ding around the

two men and y elling and g ot so close that Rodrigue z rea liz ed that he neede d backup. Then, the bride

ran up and g ot betwe en h i m and Helfr ich, and he rele ased Helfr ich. Be cause Rodrigue z felt the situation was escalating and get t i n g dang erous, he drew , but did not deploy , his taser and ordered Helfr ich to g et on the g round or he would be tase d. Shortly afte r this, Serg eant Tom L oos arr ived in the pool are a and scre amed to g et the

crow d’s attention. Wit h the crow d distracted, Rodrigue z was able to handcuf f Helfr ich, who threa tened to “kick his ass,” and beg in escor ting him outside. L oos hear d this threa t as well. Once outside, Helfr ich calmed d o wn and they had a brief conver sation. Helfr ich complained that his handcuf fs wer e too tig ht, so Rodrigue z loosene d them. He patted He lfrich down a nd attempted to place him in his police car . Helfr ich ignor ed at least two of hi s o rd ers to g et into the car , so R o d ri gu ez p ushed him down into the seat. When Helfr ich sat down, he kicked Rodrigue z in th e knee and, despite a war

ning from Rodrigue z to stop i t , kicked him ag ain. So Rodrigue z tased Helfr ich on his shoulder and place d him in the car . Rodrigue z believed that his use of the taser under these circ umstances was consistent with L akeside Park-Cre stview H il ls Po li c e Authority (L PCHP A) policy

. Offic ers L atorsa Humphrey and Dave L illich responde d to the disorderly persons call at the hotel as well. They assisted Rodrigue z at his police car and saw Helfr ich arg ue with Rodrigue z andHel

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, et al , No. 1 1- 5099 Page 4 ref use hi s order s to g et i nto the ca r. I n addition, they

saw He lfrich kick his fee t as R odrig uez was try ing to push him into the car . L illich confirme d that one of the kicks landed on Rodrigue z’s leg

. Humphrey

and L illich saw Rodrig uez tase He lfrich a fter he beg an kicking

. After Helfr ich was in the car , R o d rig uez called an EMT and his supervisor as require d by
L PCHP A policy

. David Slusher, an EMT responde d and examined Helfr ich. Although Helfr ich’s hear t rate was eleva ted when Slusher arr ived, it r educe d signific antly afte r a few minutes. Slusher offe red to take Helfr ich to the hospital, but he ref used trea tment. I n addition to Slusher, Rodrigue z’s supervisor came and interview e d s e v e r al witnesses (including Helfr ich and Rodrigue z) reg arding the use of f orce . After Slusher finished examining Helfr ich, Rodrigue z escor ted him to the jail. J essica Sims , deputy jailer, completed an intake assessment form for Helfr ich when he was booked. Although the question on the form asking whether the inmate eng ag ed in violent behavior was marke d “no,” Sims could not rec all asking Rodrigue z this question during booking, something that she usually does. Sims testified that “it’s very possible” that she made a mistake in filling out t h e form, espec ially since 3:45 a.m. on a

Saturday night tends to be a busy

time for the jailers. For his pa rt, Rodrig uez denied telling the booking office r that He lfrich ha d not eng ag ed in violent behavior

. After delivering Helfr ich to the jail, Rodrig uez w ent to a hospital to have the knee that had been kicked ex amin ed

. T h e doctor tol d him that he had a contusion on his knee cause d by bluntforc e tra uma. The hospital re cord of this visi t w as rec eived into e vidence at the trial, but does not
appea r in the rec ord on appea l. Portions of the medical rec ord from Rodrigue z’s trip to the hospital

wer e rea d to the jury , and these portions confirm that the doctor diag nosed him as having a swollen knee, “ consistent with a mild to moderate c ontusion.”Hel

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, et al , No. 1 1- 5099 Page 5 Helfr ich’s testimony reg arding his arr est and tasing is somewhat d i fferent. I n response to Rodrigue z’s question at the pool are a—“Who wants to be my first example? ”—He lfrich joked by
say ing about his cousin, “she’ ll be y our first example.” Rodrigue z t h en approache d Helfr ich and immediately told him that he was under arr est. Helfr ich repe ate d l y as ked why

. Once Rodrigue z drew his taser and pointed it at Helfr ich, he g ot on his knees and allowed Rodrigue z to handcuf f him. Helfr ich denies threa tening to kick Rodrigue z’s ass. Members of Helfr ich’s fa m i l y testified that Helfr ich did not appea

r intox icated that night, that Helfr ich cooper ated with Rodrigue z, and that Rodrigue z did not tell Helfric h why he wa s being arr ested. Helfr ich ag ree s that he and Rodrigue z had a cordia l conver sation once they wer e outside by the car . But he disag ree s wit h how Rodrigue z descr ibed the tasing

. Helfr ich testified that he responde d to Rodrig uez’s order s to g et in the car by asking why he was being arr ested. Rodrigue z then war ned him to g et in the car or he would be tased. Seconds later, Rodriguez t as ed him. I n
response to questioning by the judge , Helfr ich testified that he ag ain asked why he was being arr ested afte r Rodrigue z war

ned him to g et in the car or be tased, and that it was only afte r this question that he was tased. After being tased, he fell into the car . He testified that Rodrigue z then brandished the

taser in his fac e and he scooted back into the car . An EMT arr ived and examined him. Then he was taken to the jail. Helfr ich was char g ed with third-deg ree assault, disorderly conduct, alcohol intox ication, and resisting arr est. T h e p l ea barg ain he enter ed into with the state dismiss ed the assault char g e and
merg ed the alcohol-intoxi cation and re sisting-a rre st charg es into the disorderly conduct c harg e, to which He lfrich pled g uilty

.Hel

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, et al , No. 1 1- 5099 Page 6 C. Helfrich’s civil su it Helfr ich sued Rodrigue z in November 2008 and, in an amende d complaint, also sued th e L PCHP A. After discovery , both parties moved for summary judgme nt, which the dist ri ct court
g rante d to Rodrigue z and L PCHP A on all of Hel fr i ch ’s claims except for the excessive-for ce, assault, and battery claims ag ainst Rodrigue z. As a result o f t h e s ummary -judg ment ruling s, the

court dismiss ed L PCHP A as a party to the action and set Helfr ich’s rema ining claims for a jury trial in Dece mber 2010. 1. Rodriguez’s reque sts to exclude e videnc e Be fore trial, Rodrigue z objected to admitting testimony (1) from Hel fr i ch about his plea barg ain to the criminal char g es and (2) from Kaleb Clark. Wit h respe ct to (1), the district court ruled that the plea could be used for impeachme nt purposes if either party opened the door to it. Despite this ruling , Helfr ich’s attorney mentioned the cr iminal charg es during his opening statement. But beca use R odrig uez never

mentioned the cr iminal charg es in his direct-e x amination testimony , the

court found that the door was never opened for Helfr ich to admit evidenc e about the plea. Ba sed on its ruling that evidenc e about the plea could be used only if the opposing party opened the door (and then only for impeachme nt purposes), the court prev ented Helfr ich from testify ing about his criminal char g es. Helfr ich wanted Kaleb Clark to testify about being tased b y R o d rig uez two nights befor e Rodrigue z ar

rested and tased Helfr ich. The court excluded this e vidence for two primary rea sons: (1) it constituted impermissible ch a r a c te r e v idence that was not admissible for another purpose under Rule 404(b) of the Fe dera l Rules of Evidence , and (2) it “would be unduly prejudicia l and likely to confuse the jury ” under

Rule 403.Hel

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, et al , No. 1 1- 5099 Page 7 2. Helfrich’s reque sts to exclude e videnc e Be fore trial, Helfr ich moved to exclude evidenc e reg arding his prior convictions for driving under the influence of alcohol in 2004 and for disorderly conduct in 2001. The district c ourt ruled that it would ex clude e vidence reg arding the prior c onvictions unless Helfric h opened the door by claiming that he “a lway s had an e x emplary rec ord” or

that the arrest emotionally aff ecte d him. I n his opening statement, Helfr ich’s attorney extol led his char acte r, and Helfr i ch ’ direc t testimony rela y ed that he had excellent char acte r and that the arr est embar rasse d him g rea

tly

. The court found

t h at He lfrich’ s testimony and the opening statement had opened the door and it there fore allowed evidenc e of Helfr ich’s prior arr ests to come in for impeachme nt purposes. Rodr i gu ez ’s att orney

cross-e x ami ned Helfrich briefly about t hese prior arr ests to impeach Helfric h’s t estimony that the

arr est embar

rasse d him in front of his family and besmirc hed his g ood name. 3. Helfrich’s punitive- damages c laim After Rodrigue z prese nted his case , he moved for judgme nt as a matter of law on Helfr ich’s punitive-damag es claim and th e motion was g rante d. The next day , the court denied Helfr ich’s motion to rec onsider, rea soning that there was no evidenc e that Rodrigue z’s conduct rose to the level of g ross neg lige nce, which was nece ssary in the court’s view to support a punitive-damag es claim.
4. The verdic t Two interrog atories wer e submitt ed to the jury reg arding liability : the fi rs t asked whether Rod ri gu ez had used excessive forc e “in arr esting [Helfrich] and placing him in the cruiser ”; the second, whether Helfr ich kicked Rodrigue z befor e being tased. The jury found in Rodrigue z’s favor on both issues and this tim ely appea l followed.Hel

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, et al , No. 1 1- 5099 Page 8 II. ANALYSIS A. Testim ony of

Kale b Clark The fir st issue is whether the district c ourt committed reve rsible er ror by ref using to a dmit the testimony of Clark, who had been tased by Rodrigue z two nights befor e the Helfr ich arr est and tasing

. The court excluded this evidenc e of another (alleg edly bad) act for two independe nt rea sons. First, it was not admissible for a p ro p er purpose under Rule 404(b) beca use its probative forc e hinge d upon impermissible propensity rea soning—the a ll e g e d ly unrea sonable tasing of Clark serve d

t o p ro v e that Rodrigue z was the sort of person who would tase without sufficie nt cause , which i n
turn tended to show that he tased Helfr ich wi t hout sufficie nt cause . See Fe d. R. Evid. 404(b). Second, the e vidence would be unduly prejudicia l and likely

to confuse the jury

under Rule 403. Rule 404(b)( 1) preve nts other-a cts evidenc e from being offe red “to prov e a person’ s char acte r in order to show that on a particula r occa sion the person acte d in acco rd an ce wi t h the char acte r.” But that evidence “may be admissible for another purpose, such as proving motive, opportunity , intent, prepa

ration, plan, knowledg e, identity , or absenc e of mistake or acc ident.” Fe d. R. Evid. Rul e 404(b) (2). B efor e the district cour t
may admit 404(b) evidenc e, it must: (1) deter mine whether this is sufficie nt evidenc e that the prior acts occur

red; (2) deter

mine whether the other act is admissible for one of the p ro p er p u rposes outlined in the rule; and (3) apply Rule 403 balanc ing to deter mine whether the probative value of the evidenc e is substantially outweig hed by the dang er of

unfair pr ejudice. United States v. Hardy , 643 F.3d 143, 150 (6th Cir. 2011)

. We revie w the district court’s decision under the three -prong test using the following standards of revie w: clea r err or on the first prong , deHel

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novo on the second, and abuse of discretion on the third. United States v. Johnson , 27 F.3d 1186, 2
1190 (6th Cir. 1994). The first prong of the test is not an issue on appea l beca us e n either party disputes that Rodrigue z tased Clark. Turning to the second prong , Helfr ich arg ues that Clark’s testimony is offe red for the purpose of establishing Rodrigue z’s plan and intent. Evidence is admissible for a proper purpose under Rule 404(b) if (1) the purpose for which it is offe red is in issue, (2) it is probative of that purpose, and (3) the purpose is something other than proving conduct in confor mity with char acte r. Hardy , 643 F.3d

at 150. Helfr ich arg ues that Clark’s testimony would show that Rodrigue z followed a plan to justify

unrea sonable tasing s by claiming self defe nse and then char g ing the people tased with felonies “that

wer e immediately dismiss ed upon a plea to [a] minor misdemeanor, there by prec luding the chanc e that the arr est would be challeng ed civilly .” I n essenc e, the plan is a method Rodrigue z employ s to
g et awa y with using e x cessive f

orce . Helfr i ch ’s arg ument that the word plan in Rule 404(b) would encompa ss this other act or other-a cts evidenc e simil ar to it is underc ut by our explanation that plan normally require s that the other acts be either pref

atory steps to the conduct at issue or part of a larg er conspirac y . See United States v. Merriweather , 78 F.3d 1070 , 1 0 7 7 (6th Cir. 1996) (“ Preparation and plan wer e not in issue; it was impossibl e to asser t that Merr iweathe r’s dealing s with J ones wer e pref atory steps to dealing with Be nder or part of a plan to deal with Be nder.) ; Johnson , 27 F.3d at 1194 (“[P] repa ration

Authority is split over the prec ise standar d of re view to be used on eac h prong

. Compare 2 Johnson , 27 F.3d at 1190 (apply ing clea r err or on the first prong , de novo on the second, and abuse of discretion on the third), with Hardy , 643 F.3d a t 150 (apply ing the abuse- of-discr etion standard to all three prong s). But we need not decide this issue beca use Helfr ich’s arg

uments fail even under the more le nient de novo standa rd that some ca ses apply

on the sec ond prong

.Hel

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or plan wer e not in issue. There was no sug g estion, for example, in the g overnme nt’s theory of the

case that the other acts wer e preliminary steps nece ssary to the succe ss of a g rea ter, overa ll criminal

enter prise.”)

. Moreove r, Merriweather ’s rea soning is consistent with the rea soning of other circ uits. The Second Circuit reje cted other-a cts evidenc e offe red for proving plan beca use the other-a cts evidenc e and the acts underly ing the char g ed crime “we re not part of a connec ted or insepara ble transac tion, in which all the crimes fig ured, nor do they constitute a continuing scheme or conspirac y .” United States v. Manafzadeh , 592 F.2d 81, 88 (2d Cir. 1979); see United States v. Dothard , 666 F.2d 498, 502 (11th Cir. 1982) (re asoning that other-a cts evidenc e may be admitted to show plan “only if [t he other act] is ‘so linked toge ther in point of time and circ umstances with the crime char g ed that one
cannot be shown without proving the other’” (quoting United States v. Bee chum , 582 F.2d 898, 912 (5th Cir. 1978))) ; Bec ker v. ARCO Chemical Co. , 207 F.3d 176, 196 (3d C i r. 2 0 0 0 ) (“O rdinarily , when courts speak of common plan or scheme , they are ref err ing to a situation in which the char g ed and the unchar g ed acts ar e p ar t s of a single series of events. I n this context, evidenc e that the d efe ndant was involved in the unchar g ed act may tend to show a motive for the ch ar ged ac t an d henc e establish the commission of the act, the identity of the actor , or his intention.” (ellipses, brac kets, and interna l quotation marks omitted)). Helfr ich has offe red no evidenc e that Rodrigue z’s tasing of Clark was a pref atory step to his tasing of He lfrich, that the two ta sings we re pa rt of a connec ted t ransa ction, or t hat t hey wer e par t of a larg er conspirac y on the part of Rodrigue z reg arding tasing

. I n light of the authority construing plan under Rule 404(b), his failure to do so undermines his claim that the C l ar k ev i d ence is admissible to show plan. I nstead, what the Clark testimony would g o to prove is that Rodrigue z isHel

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t h e sort of person who would unjustifiably tase someone, which tends to show that his tasin g o f Helfr ich is also unjustified. This is prec isely the sort of propensity rea soning Rule 404(b) forbids. The district cour

t corre ctly

deter mined that the Clark testimony was not admissible to show plan. Helfr ich’s claim that the evidenc e g oes to Rodrigue z’s intent far es littl e better. An e xc e s siveforc e claim under fede ral law require s the fac tfinder to decide whether the forc e the office r used was objectively rea sonable in light of the totality of the circ umstances confr onting the office r. Graham

v. Connor , 490 U.S. 386, 396-97 (1989). Be cause th e s t an d ar d is objective, the office r’s actua l

m o t ives in using a particula r deg ree of forc e are irrele vant: “[a]n office r’s evil intentions will no t make a Fo u rt h Amendment violation out of an objectively rea sonable use of forc e; nor will an office r’s g ood intentions make an objectively unrea sonable use of forc e constitutional.” Id. at 397. 3
So evidenc e tending to reve al Rodrigue z’s subjective state of mind is irrele vant to Helfr ich’s fede ral excessive-for ce claim and there fore excludable under Rule 402. Tanberg v. Sholtis , 401 F.3d 1151, 1168 (10th Cir. 2005) (holding that evidenc e of other occa sions when the o fficer alleg edly used excessive forc e was inadmissible to prove intent with respe ct to the plaintiff’s excessive-for ce claim under f eder al law)

. The same may not be true of Helfr ich’s claim for assault and battery under st at e l aw . Section 503.090 of the Kentucky Revised Statutes provides, in rele v an t p ar t, that “[t] he use of
p h y s i ca l forc e by a defenda nt upon another person is justifiable when the defe ndant, acting un d er

Graham rec og nized one exception to this rule: “in assessing the cr edibility of an of fice r’s 3 acc ount of the circ umstances that prompted the use of forc e, a fac tfinder may consider, along with other fac tors, evidenc e that the office r may have harbor ed ill-will towards the citizen.” Graham , 490 U.S. at 399 n.12. But the C l ar k ev i d ence does not show that Rodrigue z harbor ed il l-will towards Clark, much less He lfrich.Hel

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, et al , No. 1 1- 5099 Page 12 officia l a uthority , is ma king or assisting in making an arr est, and he: (a) Believ es that such forc e is

neces sary to eff

ect the arr est.” (Emphasis added.) The word believe s implies that the office r’s subjective state of mind is rele vant to whether the forc e used is justifiable under Kentucky law. And
y et in a case involving a wrong ful-deat h cl ai m b ro u g ht on behalf of an individual who died from injuries sustained during a SW AT team raid, the court applied a standard which appea rs to be objective: an office r “is entitled to use such forc e as is ne cessa ry , or rea sonably appea

rs so, to take
a suspec t into custody .” Haugh v. City of Louisville , 242 S.W .3d 683, 686 (Ky . App. 2007).
We need not resolve this issue beca use the district c ourt’s alterna tive g round for excluding the evidenc e is adequa

te. The court held that the evidenc e was inadmissible under Rule 403 beca use its probative value would be substantially outweig hed by the dang er of unfair prejudice , confusing the jury , and undue delay

. “Unde r Rule 403, a district court is g rante d very broad discreti o n in deter mining whether the dang er of undue prejudice outweig hs the probative value of the evidenc e.” United States v. Fisher , 648 F.3d 442, 449 ( 6th Cir. 2011) (interna l quotation marks omitted). Admi t t i n g C lark’s testimony would cause delay and distract the jury from the issue of whether Rodrigue z u s e d e xc e s s ive forc e in arr esting Helfr ich. Although Clark’s aff idavit asser

ts that he did nothing to war

rant g etting tased, the Use of For ce I nvestig ative Sup plement prepa red by Serg eant Bihl—which conclude s that Rodrigue z did not use excessive forc e—tells a differ ent story

. Acc ording to those repor

ts, Clark was running awa y from Rodrigue z, but then started to turn around in an ag g ressive manner just bef o re h e wa s tased. Rodrigue z’s ty ped statement about the Clark tasing indicates that one taser barb struck Clark in the rib and the other struck him in the back, which would be consistent with the tasing occur ring as Clark turned a

round. Thus, the Clark evidenc e is

not as clea

r as Helfr ich sug g ests. A trial within this trial would be nece ssary for the jury to deter mineHel

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, et al , No. 1 1- 5099 Page 13 whether Rodrigue z used excessive forc e in arr esting Clark. And though the tasing s wer e only two day s apar

t, the fac ts underly ing eac h are differ ent, as are the techniques that Rodrigue z employ ed—taser b ar bs verse s drive stun mode. Helfr ich’s char g ed felony (assa ult) involved violence and stemmed from conduct that occur red befor e the tasing ; Clark’s char g ed felony (briber y ) did not involve violence and stemmed from conduct that occur red afte r the tasing

. These differ ence s detra ct from the rele vance of the Cl ar k t asing

. See Tanberg , 401 F.3d at 1169. Moreove r, this evidenc e is of insuffic ient probative va lue in enhanc ing the truth of Helf rich’s story

in light of the testimony of other witnesses and the objective medical evidenc e that Rodrigue z’s knee suff ere d a blunt-forc e tra

uma, such a s a kick.
I n sum, the evidenc e’s probative value was slight, but it cre ated a substantial dang er of undue delay , unfair prejudice , and confusing the jury

. The district court di d not abuse its discretion in excluding the e vidence under the se circ umstances. B. Questionin g Helfrich ab out his p rior ar rest s The next issue is whether the district court committed reve rsible err o r wh en it allowed Rodrigue z’s counsel to impeach H elfric h by cross-e x amining him re g arding his prior arrests (one for driving under the influence of alcohol and two for disorderly conduct)

. Be cause the issue involves an evidentiar

y rulin g, we empl oy an abuse- of-discr etion standard of revie w. Nolan v. Mem phis City Schools , 589 F.3d 257, 264 (6th Cir. 2009). E v en i f a district court’s evidentiar y ruling constitutes a

n abuse of discretion, a new trial is not war rante d if the err or is harmless. Id. at 264-65. When a party o ff

ers evidence of hi s g ood char acte r, he opens t he door for the opponent t o admit rebuttal evidenc e of his prior bad acts. United States v. Savoca , 151 F. App’x 28, 30 (2d Cir.Hel

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, et al , No. 1 1- 5099 Page 14 2005) (“[A]ppellant’s introduct ion of char acte r testimony opened the door to the Gover nment’s evidenc e of prior bad acts.” ); Nelson v. Lis , No. 09 C 883, 2011 WL 4460492, at *6 (N.D. I ll. Sept. 27, 2011) (re

jecting plai n t i ff ’s arg ument “that the court err ed in admitting evidenc e of his prior

arr ests” beca

use the plaintiff opened the door to this e vidence by introducing evidenc e that soug ht

to e stablish his “cha

rac ter for truthfulness and law-a biding c itiz enship”); see ge nerally 21 Charles Alan Wright et al., Fede ral Practice and Procedure § 5039.1 (2d ed. 2012). A party can also open the door to rebuttal evidenc e throug h “stateme nts m ad e during his or her oral arg ument.” Ree d v PST Vans, Inc. , 156 F.3d 1231, No. 97-5079, 1998 WL 466573, at *3 n.3 (6th C ir. J uly 31, 1998) (unpublished opinion). By seeking to establish his g ood char acte r throug h testimony and arg ument, Helfr ich opened the door to being cross-e x amined reg arding his prior arr ests. Helfr ich’s attorney extol led Helfr ich’s char acte r during opening arg ument, rema rking that Helfr ich “wa s the star of the family .” During his direc t testimony , Helfr ich continued to sound the theme of his exemplary char acte r, adding that his imag e had been tarnished by the unjustified arr est. “I ’m

. . . a very strong individual, y ou know, and looked up to.” Be i n g “a rr es t ed in front of my entire family ” was “complete ly humiliat[ ing]” and “ver y embar rassing , espec ially when I wasn’t doing a ny th in g w r o n g .” I n particula

r, “[w]hat was very
most challen gi n g i s . . . having to explain what an arr est means to my niece and nephew and, y ou know, see Uncle Steve g oing to jail. You know, that’s a tough thing to e x plain to kids.” The point of Helfr ich’s suit in his own mind was “to clea r my name with my family

. There wer e 70 people at the wedding; all my . . . family

. . . . I ’m here to kind of re v er se t he inj ustice t hat I witnessed, y ou know, on how [the police] ex plained the story .”Hel

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, et al , No. 1 1- 5099 Page 15 The openi n g arg ument, coupled with Helfr ich’s testi mony , strong ly implied that his arr est

was so embar

rassing and humiliating prec isely beca use being arr ested is inconsistent with the view his family had of him as their star and role model. The statements implied that Helfr ich was not the

sort to fig ht with police or g et arr ested. The district court had war ned Helfr ich and his attorney that they could open the door to rebuttal char acte r evidenc e by i m p l y i n g t hat Helfr ich “alwa y s had an exemplary rec ord.” The district court there fore did not abuse its discretion in concluding that Helfr ich had opened the door to being cross-e x amined on whether he had been arr ested previously

. C. Exclud ing evidence relat ed to Helfrich’s plea bargain The next issue is w hether the district c ourt committed r ever sible err or by ref using to a dmit evidenc e rela ted to Helfr ich’s g uilty plea to disorderly conduct. Ag ain, we revie w using the abuseof-discr etion standard and do not rema nd for a new trial when the err or, if any , is harmless. Nolan , 589 F.3d a t 264-65. Helfr ich arg ues that by ref using to admit this evidenc e, the district court err ed in two way s: (1) it chang ed its position on the admissibili ty of the evidenc e, thus prejudicing Helfr ich’s case , and (2) it wrong ly excluded admissible evidenc e. Under the first theory , Helfr ich asser ts that the district court ruled befor e trial that evidenc e reg arding his g uilty plea was admissible, there by leading his attorney to tell the jury what Helfr ich’s criminal char g es wer e and that they would lear n how those char g es wer e resolved (i.e., throug h the plea barg ain Helfr ich struck). Be cause the district court chang ed its position on the evidenc e’s admissibili ty during Helfr ich’s case in chief , the jury did not lear n about his plea barg ain. Helfr ich arg ues that this prejudice d his case by causing his attorney not to deliver on his implied promise to the jury

.Hel

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, et al , No. 1 1- 5099 Page 16 But the premise of this a rg ument is f

alse: the district court c onsistently ruled that e vidence
reg arding the plea barg ain could be used to impeach if the other party opened the door to it. At the final pretria l c onfer ence , the court first ruled that it would allow evide nce a bout w hat happene d in the pool are a and ear lier in the evening beca use backg round fact s s u ch as whether Helfr ich was drunk wer e rele vant to what happene d at the police car . But beca use the arr est’s leg ality was not at issue, if Helfr ich admitted evidenc e portray ing himself as not being disorderly in the pool are a, then that would open the door to Rodrigue z impeaching Helfr ich with his g uilty plea to d i s o rd erly conduct. That impeachme nt w ould in turn open the door to Helfric h being able to explain w hy he pled. This analy

tical fra mework mirrors what the district court told the parties during trial. Helfr ich incorre ctly confla tes the court’s ruling s reg arding the evidenc e about what happene d in the pool are a (admissible within limit s) with its ruling s reg arding the evidenc e about the plea (admissible only to impeach, and then only if the door is opened)

. Be cause the district court did not chang e its position
reg arding evidenc e of H elfric h’s plea ba rg ain, his first theory

of er ror is unper suasive. Helfr i ch ’s second theory of err or–that the district court wrong ly excluded admissible evidenc e–has two components: (1) the dismiss al of the assault char g e is r eleva nt be cause it make s Rodrigue z’s testimony that he was kicked by Helfr ich—the very conduct formi n g the basis of t he assault char g e—less likely to be true, and (2) Helfr ich’s explanat i o n o f why he pled g uilty is 4 rele vant bec ause the sever ity of the c rime is a fac tor to consider in a n excessive-for ce c laim under Graham

.

Helfr ich i ncorr ec t l y asser ts that his alcohol-intoxi cation and resisting -ar rest charg es were 4 dismiss ed as well. But the alcohol intox ication and resisting arr est wer e merg ed into the disorderly conduct c harg e to which He lfrich pled g uilty

.Hel

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, et al , No. 1 1- 5099 Page 17 Reg arding the first component, the district court reasone d that the evidence was irrele vant beca use t his char g e was dismiss ed as part of the g ive and take of a plea barg ain, which means the char g e could have been dismiss ed for any number of rea sons. Rule 401 provides that to be rele vant, evidenc e need only have any tendenc y to make a materia l fac t more or less probable

. Whil e this evidenc e has a

scintilla of probative value, t hat value is substantially outweig hed by

the dang er of

u n fa i r p rejudice. A j ury lacks knowledg e of how pl ea barg ains work, how common they are , and what they ty

pically mean for dismiss ed char g es (answe r: very littl e) and thus could easily place too much weig ht on the char g e’s dismiss al. Acc ording ly , this evidenc e is inadmissible under Rule 403. Helfr ich’s arg ument that he shoul d have been able t o explain why he p l ed is unpersua sive beca use why Helfr ich pled is distinct from the critica l issue in the case : was the force used by Rodrigue z reasonable ? So this evidenc e is also inadmissible under Rule 403. 5
D. Hostility or bias of the judge The next issue is whether the district court’s questioning of Helfr ich and Rodrigue z showed hostili ty or bias. Whethe r t h e district court’s conduct was hostile or biased is revie wed under an abuse- of-discr etion s t an d ar d

. McM illan v. Castro , 405 F.3d 405, 409-10 (6th Cir. 2005). I f the judge committed such misconduct, “re versa l is automatic due to the structura l nature of the err or.” Id. at 410. As a c orollary , the har mless-err or doctrine is also inapplicable. Id.

Helfr ich asser

ts that preve nting him from explaining why he pled is espec ially problematic 5 when coupled wi t h t h e d i s trict court instructing the jury that his arr est was “lawf ul” beca use it cre ated the impression that he was behaving badly and the cops wer e in the rig ht. But the premise is f alse: the district c ourt instructed the jury that the “lawf ulness of the arr est is not in issue.” And Helfr ich expressly

ag ree d to this i nstruction.Hel

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, et al , No. 1 1- 5099 Page 18 Rodrigue z arg

ues that the plain-er

ror standard of revie w applies beca use Helfr ich did not objec t t o t h e j u d ge’s intervening below. But “[t] his court has implied

. . . that the heig htened plain-er ror standard might not apply to defa ulted objections if raising a contempora neous objection would have exacer

bated the situation.” United States v. Hyne s , 467 F.3d 951, 958 (6th Cir. 2006). Helfr ich ar gu es in his reply brief that objecting to the j udg e’s alleg edly improper conduct “would have exacer

bated the situation.” We need not decide whether plain-er ror revie w applies in this case beca use He lfrich doe s not prevail under the lower abuse- of-discr etion standard.
A district court’s role in a trial extends bey ond that of “a mere arbitra tor” t h at ru l es o n objections and instructs the jury ; its role includes “conduc t[ ing] the trial in an order ly way with a view to eliciting the truth and attaining justice betwee n the parties.” United States v. Hickm an , 592 F.2d 931, 933 (6th Cir.1979) (interna l quotation marks omitted). This means ensuring that “issues

are not obsc ured and that testimony is not misunderstood.” Id. “The court may there fore interjec t itself into the proce eding s”—inclu d ing by questioning witnesses—to remove confusion in the evidenc e, McM

illan , 405 F.3d a t 410, or to “deve lop[ ] the facts,” United St ates v. Albers , 93 F.3d 1469, 1486 (10th Cir. 1996) (interna l quotation marks o m i t t ed ). But the court must rema in “impartial[] in demea

nor as well as in actions.” Hickm an , 592 F.2d at 933. “A cc o rd i n g ly , the threshold inquiry is whether , with ref ere nce to a rang e of acc eptable, though not nece ssarily model, judicial behavior , the district court' s conduct falls demonstrably outside this rang e so as to constitute hostili ty or bias.” Hyne

s , 467 F.3d a t 958 (internal quotation mar ks omitt ed). Helfr ich points to three instances of the judge intervening during his or Rodrigue z’s testimony as showing hostili ty to or bias ag ainst Helfr ich. T h e fi rs t i nstance involved the judge instructing Helfr ich to answe r the question without making speec hes. J udg es are authorized toHel

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, et al , No. 1 1- 5099 Page 19 intervene if a witness is being difficult, and Helfr ich was arg uably posing a problem by answe ring the question and then c ontinuing to offe r discursive te stimony that stray ed fr om the question. See Hickm an , 592 F.2d at 933 (re asoning t h at j u d ges intervening to control a difficult witness is permissible). And the judge also admonished Rodrigue z to tell h i m wh at is corr ect rathe r than

mere ly replying, “Corre ct, Your Honor,” to an open-e nded question. That the judge was willing to intervene to corr ect both witnesses when they wer en’t reply ing to questions appropr iately indicates that this int erve ntion does not rise to the level of hostility or bias. The seco n d challeng ed instance of the judge ’s intervention involved Helfr ich’s testimony about what occur

red immediately befor e the moment of the tase. Helfr ich had testified about these fac ts in response to his attorney ’s examination just befor e the judge beg an questioning. The attorney ’s questions to He l fr i ch asked him what he said , not what he did

. (I n answe ring these questions, Helfr ich testified that he responde d to Rodrigue z’s order to “[g]et in the cruiser ” by asking why he was being arr ested.) But the judge asked Helfr ich about what he said and did leading up to the tase. (I n answe ring these questions, Helfr ich testified that he did not comply with Rodrigue z’s instructions to g et in the cruiser and he clar ified other de tails of his testimony , such as the numbe r of times Rodrigue z told him to g et into the cruiser befor e tasing him.) So Helfr ich’s testimony about the sequenc e of actions and statements leading to th e t ase chang ed slightly and beca me clea rer in
response to the judge ’s questioning. Having clea r evidenc e reg arding Helfr ich’s version of what he and Rodrigue z said and did leadi n g u p t o t h e tase is nece ssary beca use the leg al inquiry under Graham require s the factfinder to consider whether the o ff icer ’s actions are rea sonable in light of the totality of the circ umstances confr onting the office r. Graham , 490 U.S. at 396-97. “I t is the very function of the trial court to establish the fac ts as clea rly and completely as possible.” United StatesHel

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, et al , No. 1 1- 5099 Page 20

v. Campino , 890 F.2d 588, 592 (2d Cir. 1989). To ensure that happens, a “fe dera l trial judge should

not hesitate to ask questions for the purpose of developing the fac ts; and it is no g round of complaint that the fac ts so develope d may hurt or help one side or the other.” United States v. Albers , 93 F.3d 1469, 1485-86 (10th Cir. 1996) (bra ckets and internal quotation marks omitted). Reg arding this line of questioning , we ther efor e conc lude that the judg e did not abuse his discre tion. The third challeng ed instance of the judge ’s intervention invol v ed R o drig uez’s testimony about the same cruc ial sequenc e of events leading up to the tase. When questioning Rodrigue z about these events, the judge told him to slow down and elabor ate, rema rking that “[t] his is the hear t of the

case ” and “[t] his is the key to th e case .” Simpl y telling Rodrigue z to testify slowly is not err or beca use the issue of what happene d just be fore the tasing is a critica l issue under the Graham test, and asking a party to take his time aids in the clar ity and co m p l et en ess of the testimony

. Commenting that this is t h e hear t of the case during Rodrigue z’s testimony —but not during Helfr ich’s testimony on the same subject—is problematic for two rea sons. First, the jury could infer that the judge cre dited Rodrigue z’s version more than Helfr ich’s. Second, the judge was telling the jury what wa s fac tually important. But it is the jury ’s function—not the judge ’s—to find the fa cts and dete rmine which one s are important. The problem descr ibed in the first rea son is lessened beca use the jury could also rea sonably infer that the judge simply meant that the interac tion betwee n the two parties just befor e tasing was the key to the case —no matter whose version they ended up believing

. I n other words, the jury could

rea sonably i nfer from the judge ’s comments something other than the problematic infere nce—na

mely , that the judg e believe d Rodrigue z more than Helfr ich.Hel

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, et al , No. 1 1- 5099 Page 21 There do not seem to be other interpre tations which mitigate the second problem. The judge

was telling the jury what was most fac tually important and potentially invading the province of the jury

. Howeve r, the judge told them something that would be obvious from the g overning leg al test,

on which the judge has the rig ht and du t y t o i n s t ru ct the jury

. The leg al inquiry under Graham require s the fac tfinder to consider whether the office r’s actions are rea sonable in light of the totality of the circ umstances confr onting the office r. Graham , 490 U.S. at 396-97. The fac ts leading up to
t h e tase are obviously critica l in answe ring this inquiry

. So the judge ’s comment poin t ed o u t t h e importance of testimony

that the jury

would have c oncluded wa s important on its own. 6 The best course would have been for the district court not to intervene in the questioning of either Helfr ich o r R o d ri g uez about the events immediately prec eding the tase. When the court questioned He lfrich on this subject, he had y et t o be cross-examined, so the clar ity broug ht by

the district court’s questions may have been achie ved throug h questions by Rodrigue z’s counsel. This would have been pref

era ble to the court becoming involved in eliciting the cruc ial fac ts, espec ially when the court’s vary

ing comments during the two principal witnesses’ testimony could be seen as endorsing Rodrigue z’s versio n an d criticizing Helfr ich’s. The judge could have mitigated this problem by

issuing standa

rd instructions convey

ing the following information:

• that evidenc e includes only what the witnesses said while they wer e testify ing under oath, the exhibi ts that the court all o we d i n t o evidenc e, the stipulations that the lawy ers ag ree d to (if any

), and the fac ts that the court has judicially noticed (if any );

I ndeed, one can rea sonably infer from the judge asking Helfr ich questions on the sam e 6 subject of what happened just befor e the tase that He lfrich’ s testimony on this subject was also of critica l importance

. The differ ence i s t h at the judge made expli cit during Rodrigue z’s testimony what had been implicit during Helfr ich’s—name ly , that testimony about events just befor e the tase was c ritical to dec iding the c ase.Hel

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, et al , No. 1 1- 5099 Page 22

• that nothing else is evidenc e: the lawy ers’ statements and arg uments, their questions

and objections, are not evidenc e; t he court’s comments, statements, questi ons, and leg al ruling s are not evidence or fa cts;

• that nothi n g t h e co u rt said or di d during the t rial was meant to influence the j ury ’s decision in any

way ;

• t h at the jury should not interpre t the court’s statements or ruling s on objec t i o n s as indicating in any

way how the cour

t thinks t he ca se should be dec ided. See Six th Circuit Criminal Pattern J ury I nst ru ct i o n s 1.02, 1.04, 1.09, and 8.09 (ava ilable at http:// ca6pub1.c irc6.dc n/internet//crim_jury _insts.htm ). The best prac tice would have been for the district court to conve y

the substance of this information, espec ially since it intervene d in the t rial by questioning the key

witnesses about the ke y

fac tual events. 7 The comments during direc t examination and the failure to i s s u e a cu rative instruction
prese nt a troubling rec ord. Howeve r, the g overning standard is abuse of discretion. Be cause there

are other re asonable interpre tations of the district court’s c omments besides the problematic one s, and beca use abuse of discretion is a high standard, we conclude by a narr ow marg in that the district

court did not abuse its discretion. I n sum, though the judge ’s comments wer e problematic, this is not

a case wher e “the conduct of the trial court [i s] eg reg ious, and fairly capa ble of char acte rization a s bey ond that nece ssary to fulfill the role of g overnor of the trial for the purpose” of “eliciting the truth and [of] attaining justice betwee n the parties.” United States v. Tilt on , 714 F.2d 642, 645 (6th Cir.

The district court did instruct the jury that “[n] othing I say in these instructions is to be taken 7 as an indication that I have any opinion about the fac ts of the case , or what that opin i on is.” (Emphasis added.) By limit ing this qualifier to what t he dis trict court said in the i nstructions, the district court failed to instruct the jury that i t s s t atements during the trial should simil arly be disreg arde d by the jury

. See McM illan v. Castro , 405 F.3d 405, 410, 412 (6th Cir. 2005) (re asoning that whether

the district court issued a cura tive instruction is a fac tor to consider in determining if the court’s questioning of a witness amounted to hostility or bias). And it wa s during the trial that the court made the problematic comments. Moreove r, though the cour t did tell the jury

to ba se its verdic t on only

the evidenc e, it did not define for the jury what evide nce is.Hel

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, et al , No. 1 1- 5099 Page 23 1983) (interna l quotation marks omitted) (first quotation); Hickm an , 592 F.2d at 933 (interna l quotation marks omitted) (sec ond quotation).
E. P uni tive dam ages The final issue is whether the district court err ed in g ranting Rodrigue z judgme nt as a matter of law on Helfr ich’s punitive-damag es claim, there by taking this issue awa y from the jury

. Be cause

we conclude that the district court did not commit an err or requiring us to set aside the jury ’s finding that Rodrigue z was n o t l i ab le, any err or by the court in ref using to instruct on punitive damag es would be harmless. Toth v. Grand Trunk R.R. , 306 F.3d 335, 355 (6th Cir. 2002) (holding that there

was no n ee d to consider Toth’s objections to the district court’s evidentiar y ruling s rela ting to damag es bec ause the jury found that the de fenda

nt was not liable).
F . Cum ulative err or I n his reply brief, Helfr ich arg ues that the cumulative eff ect of the d istrict court’s alleg ed evidentiar y err ors constitutes reve rsible err or. Helfr ich raises this arg ument for the first time in his reply brief, a nd Rodrigue z has not had an opportunity to respond. We have “consistently held that

we will not consider such arg uments.” American Trim, L.L.C

. v. Oracle Corp. , 383 F.3d 462, 477 (6th Cir. 2004). III. CONCLUSION
For the above rea sons, we AF F IRM the judg ment of the district cour t.