U.S. v. Sneezer, 91-10457

• Decision Date: 30 December 1992
• Docket Number: No. 91-10457,91-10457
• Parties: 37 Fed. R. Evid. Serv. 383 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Stephen SNEEZER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 920

983 F.2d 920

37 Fed. R. Evid. Serv. 383

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Stephen SNEEZER, Defendant-Appellant.

No. 91-10457.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 17, 1992.

Decided Dec. 30, 1992.

Eugene A. Burdick, Mesa, AZ, for defendant-appellant.

Mary H. Murguia, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: WIGGINS, O'SCANNLAIN, FERNANDEZ, Circuit Judges.

PER CURIAM:

OVERVIEW

Ronald Sneezer appeals his conviction and sentence for two counts of aggravated sexual abuse and one count of kidnapping. Sneezer claims that the district court erred in refusing proposed jury instructions on voluntary intoxication and sexual abuse as a lesser included offense of aggravated sexual abuse. He also claims that the district court improperly admitted evidence of a prior offense. Finally, he claims that the district court incorrectly found each of the two counts of aggravated sexual abuse to be a separate unit for sentencing purposes. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the conviction but vacate the sentence.

STATEMENT OF FACTS

Ronald Sneezer picked up two hitchhikers, Jane Doe and her boyfriend, Dennis Johns, who were travelling from Tuba City, Arizona, to Gap, Arizona. After picking up a friend at a gas station, Sneezer drove westbound on Highway 160 from Tuba City. He stopped at the junction of Highways 89 and 160 and drank several beers. All the men got out of the car to go to the bathroom, and Sneezer jumped back into the car and drove off with Jane Doe in the backseat. After driving west on Highway 160 for a little while, Sneezer pulled off on a dirt road. The victim started crying and asked Sneezer to return to where he left the others. Sneezer ignored her and parked in an isolated location on the Navajo Indian Reservation. He locked the doors and climbed into the backseat with Doe. Sneezer told her to undress because he was going to get her pregnant. She told him that she had a boyfriend, but Sneezer said that did not matter to him.

After she removed her clothing, Sneezer removed his and climbed on top of her. He was unable to insert his penis. He then pulled her out of the car and made her lay on the ground where he had sexual intercourse with her. He then forced her to lay on the hood of the car where he again had sexual intercourse with her. Although Sneezer attempted to get her back into the car, the victim broke away and began to run. Sneezer chased her, yelling that he was going to kill her and her boyfriend. She ran naked to Highway 89, where a motorist picked her up. Sneezer was convicted of two counts of aggravated sexual assault and one count of kidnapping.

DISCUSSION

I. The District Court Did not Err in Refusing to Give an Intoxication Defense Instruction.

Sneezer first claims that the district court erred in refusing his proposed jury instruction on intoxication as a defense to the kidnapping charge. The proper standard of review of a district court's denial of a proposed jury instruction is unclear in this circuit. United States v. Streit, 962 F.2d 894, 897 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 431, 121 L.Ed.2d 352 (1992). In Streit, this court stated that the two possible standards are de novo and abuse of discretion. The panel found it unnecessary to resolve which was the appropriate standard because the result would be the same under either standard. Id. Similarly, we need not resolve this issue because Sneezer is not entitled to the intoxication instruction under either standard of review.

"Voluntary intoxication may be a defense to a specific intent crime, but not a general intent crime." United States v. Sneezer, 900 F.2d 177, 179 (9th Cir.1990). ¹ Although no Ninth Circuit case has so held, kidnapping under 18 U.S.C. § 1201(a)(2) appears to be a general intent crime. Subsection 1201(a)(1), which makes kidnapping a federal crime when the victim is transported in interstate commerce, includes the word "willfully." In contrast, the relevant subsection in this case, subsection (a)(2), which makes kidnapping a federal crime when committed "within the special maritime and territorial jurisdiction of the United States" (the Reservation in this case), contains no such language. Because there is no language in § 1201(a)(2) that requires specific intent, the prosecution need not prove that the defendant committed the kidnapping for any particular purpose.

Some cases in this and other circuits have stated that § 1201(a) includes "knowing and willful" kidnapping as an element. See United States v. Phillips, 640 F.2d 87, 95 (9th Cir.), cert. denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (1981); United States v. Crosby, 713 F.2d 1066, 1070 (5th Cir.), cert. denied, 464 U.S. 1001, 104 S.Ct. 506, 78 L.Ed.2d 696 (1983); Hattaway v. United States, 399 F.2d 431, 433 (5th Cir.1968). However, these cases are inapposite because they were based on interpretations of an earlier version of § 1201(a). In 1972, the statute was amended to remove the word "knowingly" from the statute and to make subsections (1) and (2) two separate bases for making kidnapping a federal crime, with the word "willful" appearing only in subsection (1). ² We believe that the removal of the word knowingly and the placement of "willfully" only in subsection (a)(1) indicates that Congress intended subsection (a)(2) to be a general intent crime. The cases that refer to § 1201(a) as a specific intent crime do not address the fact that the statute has changed.

Because we find that kidnapping is a general intent crime, we conclude that the district court did not err in refusing Sneezer's requested intoxication instruction.

II. The District Court did not Err in Refusing to Give a Lesser Included Offense Instruction.

Sneezer next claims that the district court erred in refusing to give an instruction that sexual abuse is a lesser included offense of aggravated sexual abuse. Again, the standard of review is not clear. See United States v. Sitton, 968 F.2d 947, 959 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 478, 121 L.Ed.2d 384 (1992) (stating that the two possible standards of review are de novo and abuse of discretion). However, we do not need to decide what standard is appropriate because, even under the less deferential de novo standard, the district court did not err in refusing the instruction.

A defendant is entitled to a lesser included offense instruction when the elements of the lesser offense are a subset of the charged offense and a factual basis supports the instruction. United States v. Walker, 915 F.2d 480, 486 (9th Cir.1990). In determining whether a lesser offense is a subset of the greater, the comparison does not depend upon the facts of the particular case. Rather, the elements of each crime must be compared using the text of the statutes involved without regard to the "inferences that may be drawn from evidence introduced at trial." Schmuck v. United States, 489 U.S. 705, 720, 109 S.Ct. 1443, 1452, 103 L.Ed.2d 734 (1989). A textual comparison of 18 U.S.C. §§ 2241(a) and 2242(1) indicates that § 2242(1) is not a subset of § 2241(a).

Aggravated sexual abuse, § 2241(a), requires force or fear of kidnapping, serious bodily injury, or death. ³ Sexual abuse, § 2242(1), does not require fear of kidnapping, serious bodily injury, or death. Instead, § 2242(1) requires any other type of fear. ⁴ Because these crimes deal with distinct types of fear, sexual abuse is not a subset of aggravated sexual abuse. Thus the district court did not err in refusing Sneezer a lesser included offense instruction.

III. The District Court did not Err in Admitting Evidence of a Prior Bad Act.

Sneezer next claims that the district court erred in admitting evidence of a prior sexual assault he committed. The trial court's decision to admit evidence under Federal Rule of Evidence 404(b) is reviewed for an abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987).

This court regards Rule 404(b) as an inclusionary rule--"evidence of other crimes is inadmissible under this rule only when it proves nothing but the defendant's criminal propensities." United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). Under the rule, relevant evidence of other crimes is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Id. To admit evidence for one of the permissible purposes, (1) there must be sufficient proof for the jury to find that the defendant committed the prior act; (2) the prior act must not be too remote in time; (3) if used to prove intent, the prior offense must be similar to the charged offense; (4) the prior act must be introduced to prove a material issue; and (5) the probative value must outweigh any prejudice. United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1818, 108 L.Ed.2d 947 (1990).

The government offered evidence of a 1987 rape to show motive, intent, plan, knowledge and identity. The 1987 incident is nearly identical to Sneezer's actions in this case. In the prior incident, he snatched a woman off of the main highway on the Navajo Indian Reservation on which she was walking and forced her into his vehicle from a highway. He drove her to a secluded place a couple of miles down the road, pulled her out of the car and onto the ground, removed both their clothes, laid on top of her, and tried to rape her. ⁵ Even though the previous case was eventually reversed on appeal, there was sufficient evidence for a jury to find that he had committed the offense. This court reversed his conviction because the judge had refused to give a jury instruction on involuntary intoxication. ⁶ The fact that he was arrested, charged and...