Virginia O'Hare v. Chad Harmon

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12254
Non-Argument Calendar
____________________
ROBERT O’HARE,
Plaintiff,
VIRGINIA O’HARE,
Administratrix of the Estate of Robert O’Hare, deceased,
Plaintiff-Appellant,
versus
LAKE COUNTY FLORIDA,
et al.
Defendants,
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2 Opinion of the Court 21-12254
CHAD HARMON,
in his official capacity Lake County Corporal,
RALPH CHRISTOPHER HUSKEY,
a.k.a. Christopher Huskey,
RICHARD WINN,
in his official capacity Lake County Detective,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:19-cv-00505-JSM-PRL
____________________
Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Robert O’Hare 1 sued three sheriff’s deputies for using exces-
sive force in arresting him. He appeals the denial of his motion for
a new trial. He argues that the district court erred in admitting
evidence that he had been charged with and convicted of
1
O’Hare passed away while this case was pending—for reasons unrelated to
this case—and his mother was substituted in as a party because she is the ad-
ministrator of his estate.
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21-12254 Opinion of the Court 3
possessing child pornography. Because this argument was unpre-
served and because any error was not a miscarriage of justice, we
affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In the fall of 2015, Detectives Robert Hart (from the Lake
County Sheriff’s Office) and Sean Walsh (from the Ocoee Police
Department) were collaborating on an investigation into child por-
nography-related activity on an internet cafe’s IP address. When
Detective Walsh would detect child pornography-sharing activity
on the cafe’s IP address, Detective Hart would go to the cafe to try
to determine who was using its wireless network. After several
visits, Detective Hart identified O’Hare as a common denominator
and so the likely suspect.
On October 5 of that year, after O’Hare was again surveilled
downloading child pornography at the cafe, officers followed him
home, where the defendants—Deputies Chad Harmon, Ralph
Huskey, and Richard Winn—made contact with him. Deputy Har-
mon invited O’Hare outside to ask for permission to search the res-
idence, thinking O’Hare “might not want to discuss it in front of
his mother.” When O’Hare refused and began to reenter the
house, the deputies feared that he planned to destroy evidence, so
they tackled and arrested him. After the officers obtained and exe-
cuted a search warrant, O’Hare was charged with possession of
child pornography, voyeurism, possession of a short barrel shot-
gun, and resisting a law enforcement officer without violence. He
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pleaded nolo contendere and was sentenced to fifteen years’ im-
prisonment.
O’Hare sued the deputies under 42 U.S.C. section 1983 for
using excessive force in arresting him.2 Before trial, O’Hare moved
in limine to exclude any evidence: (1) that “directly describe[d] the
subject matter of [the deputies’] investigation into [O’Hare]”;
(2) that O’Hare was arrested for any crime; (3) that O’Hare was
convicted of any crime; and (4) about any other crimes O’Hare was
accused of committing after his arrest. O’Hare argued that evi-
dence about the crime he was accused of committing: (1) wasn’t
relevant under Federal Rule of Evidence 401 because he admitted
that there was probable cause to arrest him; (2) was unduly preju-
dicial under rule 403; and (3) was improper character evidence un-
der rule 404(b). The only issue in the case, he said, was how much
force the officers used in arresting him, so the precise crime was
irrelevant and would only inflame the jury against him.
The district court partly granted the motion. The district
court allowed the deputies to introduce evidence that they were
investigating O’Hare for possession of child pornography but—be-
cause O’Hare’s credibility was not at issue—the court excluded any
2
He advanced other claims against other defendants, but all other claims and
defendants were dismissed before trial and O’Hare doesn’t appeal the dismis-
sal.
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evidence that O’Hare was arrested for, charged with, or convicted
of that crime. 3
At trial, O’Hare’s mother testified that on the day of
O’Hare’s arrest she was upstairs when she heard screaming and
yelling. When she came downstairs, she saw “on the floor, [her]
son being beaten. It was, like, several men . . . with their arms go-
ing up and down and kicking at [her] son.” She described Deputy
Harmon as “beating [her] son[’s]” head, face, and ears. She also
said she saw Deputy Huskey kicking and punching O’Hare in his
side. And she observed Deputy Winn striking her son in his lower
back and falling on him while Deputies Huskey and Harmon con-
tinued to pummel him. O’Hare’s mother said she yelled at the dep-
uties to stop but they ignored her.
During her direct examination, the plaintiff also played a cell
phone video O’Hare’s mother recorded during the incident. On
the video—which captured events after the deputies handcuffed
O’Hare—O’Hare’s mother could be “repeatedly heard stating that
there was no probable cause for [O’Hare’s] arrest.”
The deputies cross-examined O’Hare’s mother about
whether they had probable cause to be at the house:
3
The district court orally granted the motion and then issued a written order
explaining that the motion was granted in part and denied in part “for the rea-
sons stated on the record.” O’Hare didn’t submit the transcript of the hearing,
so we rely on his (uncontested) representations about how the district court
ruled, corroborated by the district court’s characterization of its order at trial.
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Q. You have no idea whether he was downloading
child pornography or engaged in sharing of child por-
nography from the cafe; is that correct?
A. He wasn’t.
Q. That’s not my question. Do you have any per-
sonal knowledge that he was?
The district court called a sidebar and reminded the parties that the
criminal proceedings weren’t admissible but warned O’Hare that
his mother was dangerously close to opening the door to rebuttal
evidence of O’Hare’s criminal offenses:
[S]he’s saying that he’s done nothing in the cafe that
had to do with child pornography. Now it’s going to
reach a point where it may become relevant for the
defense to get it in. I don’t know if that’s how you
want to proceed because if he was convicted of child
pornography and she’s—it’s not [the defense]. It’s her
answers and what she said on the video . . . . I’ve tried
to keep this out, but I think she’s opening the door.
And they’re entitled to impeach her . . . . Now where
[the defense is] in [its] questioning is that she doesn’t
know what happened at the cafe or what evidence
they had or whether there was any probable cause at
all. You can go down that road that she doesn’t know
there was probable cause even though she was yelling
[in the video], “There’s no probable cause.” I’m just
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warning the plaintiff that if she continues to deny all
this stuff, it may open the door [to O’Hare’s criminal
proceedings].
The deputies continued questioning O’Hare’s mother, and
she continued emphatically denying that her son had any involve-
ment with child pornography. She called the suggestion “a big lie”
and said she’d never seen pornography in her home or on her fam-
ily’s computers. She explained that O’Hare had told her that he
didn’t have any child pornography and that the child pornography
found on O’Hare’s laptop belonged to its previous owner,
O’Hare’s friend. And she refused to admit knowing that her son
pleaded guilty to and was convicted of dozens of counts of posses-
sion of child pornography, as well as voyeurism and resisting arrest
without violence. O’Hare’s counsel didn’t object to any of these
questions.
During the defense case, the deputies introduced into evi-
dence—without objection—O’Hare’s plea agreement and judg-
ment showing that he was convicted of 52 counts of possession of
child pornography, 26 counts of felony voyeurism, resisting a law
enforcement officer without violence, and possession of a short
barrel shotgun.
The deputies also described their investigation into O’Hare
for child pornography. And they described the level of force they
used to subdue O’Hare after he refused to either consent to a
search or step outside. Deputy Harmon said that he didn’t get
“hands-on” with O’Hare until O’Hare made an “abrupt move” to
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“retreat further into the house,” at which point Deputy Harmon
grabbed O’Hare’s shirt. He continued that O’Hare resisted arrest
and unequivocally denied ever punching or kicking O’Hare. Dep-
uties Huskey and Winn also testified that O’Hare resisted arrest,
but both denied kicking or punching him. Deputy Winn admitted
that he had performed two “knee strikes” to gain compliance. The
deputies also introduced evidence that there were no injuries con-
sistent with a beating: the paramedic who treated O’Hare testified
that she saw only a minor abrasion on his temple and that O’Hare
denied being in any pain and refused treatment and transportation
to the hospital.
During closing arguments, O’Hare’s lawyer candidly admit-
ted that his client wasn’t “the most sympathetic plaintiff” and that
he didn’t need to “sit here and tell you that child pornography is
evil, and it’s awful, and it should be a crime and should be prose-
cuted to the fullest extent of the law.” Instead, he said, the lawsuit
was brought “to stop this bone-headed, wrong police practice, and
the unlawful use of force.” He continued that “this case is not re-
ally about Mr. O’Hare. This is about the next Mr. O’Hare and the
person after that . . . . [T]his is wrong, and what we are asking you
to do is to set it right.”
The jury returned a verdict for the deputies. After trial,
O’Hare moved for a new trial under Federal Rule of Civil Proce-
dure 59(a). He conceded that O’Hare’s mother opened the door to
evidence about her son’s arrest and convictions but argued that the
defense “asked questions on cross-examination [that] were
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21-12254 Opinion of the Court 9
specifically designed” to provoke her into doing so. O’Hare also
contended that, even though O’Hare’s mother opened the door,
the district court had a duty to “guard against the floodgates open-
ing . . . by conducting a [r]ule 403 balancing test” as to each piece
of previously excluded evidence the defense sought to introduce.
O’Hare argued that the district court erred in admitting a “pleth-
ora” of evidence that was unduly prejudicial to his claim that the
deputies used excessive force to arrest him.
The district court denied the motion. The district court
noted that the jury heard O’Hare’s mother repeatedly protest—on
her cell phone video recording—that the deputies lacked probable
cause to arrest O’Hare. And so when she testified that the idea that
her son was downloading and sharing child pornography was “a
big lie,” she opened the door to evidence of his criminal proceed-
ings. Two consequences followed, the district court said. First, the
deputies were entitled to elicit testimony during cross-examination
that clarified issues—namely, probable cause and the facts sur-
rounding O’Hare’s arrest—that O’Hare raised on direct. Second,
the district court could, in its discretion, permit the deputies “to
offer otherwise inadmissible evidence on the same matter” to rebut
O’Hare’s mother’s misleading testimony.
STANDARD OF REVIEW
We review for an abuse of discretion a denial of a rule 59(a)
motion for a new trial. McGinnis v. Am. Home Mortg. Serv., Inc.,
817 F.3d 1241, 1255 (11th Cir. 2016).
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DISCUSSION
O’Hare argues that the district court erred in allowing the
deputies to introduce evidence that he had been convicted of pos-
sessing child pornography because that evidence was unduly prej-
udicial and so should have been excluded under rule 403. We dis-
agree that the district court abused its discretion, because O’Hare
opened the door to the convictions evidence by introducing the is-
sue of probable cause and through his mother’s repeated denials
that O’Hare was involved with child pornography. See, e.g.,
United States v. Johnson, 730 F.2d 683, 691 (11th Cir. 1984) (“Alt-
hough the district court may have been correct in initially deter-
mining that the prejudicial effect of the mortgage scheme out-
weighed its probative value, the court properly ruled that once de-
fense counsel ‘opened the door’ on cross-examination, . . . the
scheme’s probative value was enhanced such that it outweighed its
prejudicial effect.”); Shaps v. Provident Life & Acc. Ins., 244 F.3d
876, 886 (11th Cir. 2001) (concluding district court didn’t abuse its
discretion in admitting evidence of wealth of insurance claimant
who “initiated the discussion of her financial condition” through
her “opening statement and testimony on direct that she was in
financial need of the benefits . . . [in] an attempt to sway the jury”).
But, even assuming the district court abused its discretion, because
the error was both unpreserved and not a miscarriage of justice, we
affirm.
The error was unpreserved because O’Hare failed to object
to any of the purportedly improper questions or evidence as
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required in order to preserve the issue for appeal. See Fed. R. Evid.
103(a)(1) (explaining that a party must timely object to admission
of evidence to preserve a claim of error for appellate review). Even
when a district court excludes evidence in limine, “if the opposing
party violates the terms of the initial ruling, objection must be
made when the evidence is offered to preserve the claim of error
for appeal. The error, if any, in such a situation occurs only when
the evidence is offered and admitted.” ML Healthcare Servs., LLC
v. Publix Super Mkts., Inc., 881 F.3d 1293, 1305 (11th Cir. 2018)
(quoting Fed. R. Evid. 103 advisory committee’s note to the 2000
Amendments). Because O’Hare didn’t object when the evidence
was offered for admission, we review for plain error.
Allowing the questions and admitting the evidence of
O’Hare’s child pornography convictions wasn’t plain error. “Un-
der the civil plain error standard, ‘we will consider an issue not
raised in the district court if it involves a pure question of law, and
if refusal to consider it would result in a miscarriage of justice.’”
Burch v. P.J. Cheese, Inc., 861 F.3d 1338, 1352 (11th Cir. 2017)
(quoting Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor
Inns, Inc., 689 F.2d 982, 990 (11th Cir. 1982)). When that issue is
the admission of evidence, “the evidence must have been so obvi-
ously inadmissible and prejudicial that, despite [the opposing
party’s] failure to object, the district court, sua sponte, should have
excluded the evidence.” ML Healthcare, 881 F.3d at 1305 (quoting
United States v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008)).
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Here, for two reasons, the evidence wasn’t so prejudicial that the
district court should have excluded it on its own.
First, the jury already knew—as early as the defense’s open-
ing statement—that O’Hare was mixed up with child pornography.
To be sure, if O’Hare’s crime hadn’t been mentioned during the
trial—and the jury had no idea what he was accused of—then the
injection of child pornography may have been prejudicial. But
child pornography was mentioned repeatedly throughout the trial.
The district court, as part of its in limine ruling, allowed the parties
to discuss the investigation into O’Hare. So the jury knew that the
deputies went to O’Hare’s house because they suspected he had
child pornography. Deputy Harmon testified that he invited
O’Hare outside to discuss the suspected child pornography to
avoid embarrassing O’Hare in front of anyone he lived with. And
O’Hare’s lawyer told the jury in closing arguments that his client
wasn’t “the most sympathetic plaintiff” and that he didn’t need to
“sit here and tell you that child pornography is evil, and it’s awful,
and it should be a crime and should be prosecuted to the fullest
extent of the law.” The jury knew that O’Hare was involved with
child pornography.
Second, the evidence of O’Hare’s convictions did not result
in a miscarriage of justice. See Burch, 861 F.3d at 1352. All three
deputies admitted that they had used force against O’Hare but de-
nied punching or kicking him—other than one who testified he had
used two knee strikes to subdue O’Hare. O’Hare presented only
the testimony of his mother to support his claim that the deputies
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used excessive force. She testified at length to seeing the deputies
repeatedly punch and kick him—to the extent that they fractured
O’Hare’s ribs. But even though she claimed to have witnessed the
beating, the cell phone video she took did not show that O’Hare
was beaten by the deputies. Instead, the video shows her asking
her son—while he was being examined by a paramedic—whether
the deputies had hit him. Additionally, the paramedic testified that
O’Hare had no bruises, tenderness, or swelling (let alone tender-
ness or swelling consistent with broken ribs), reported no pain, and
declined any medical treatment. In short, nearly all the evidence
was inconsistent with the beating O’Hare’s mother described wit-
nessing.
For these reasons, we cannot conclude that the evidence of
O’Hare’s child pornography convictions was so obviously prejudi-
cial that the district court should’ve excluded it sua sponte. Any
error resulting from the district court’s admission of the evidence
was not a miscarriage of justice.
AFFIRMED.