U.S. v. Big Crow
| Decision Date | 07 March 1990 |
| Docket Number | 89-5314,Nos. 89-5275,s. 89-5275 |
| Citation | 898 F.2d 1326 |
| Parties | UNITED STATES of America, Appellee, v. David BIG CROW, Appellant. UNITED STATES of America, Appellant, v. David BIG CROW, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles J. Mickel, Rapid City, S.D., for appellant.
Ted L. McBride, Sioux Falls, S.D., for appellee.
Before WOLLMAN, Circuit Judge, HEANEY, Senior Circuit Judge and MCMILLAN, * U.S. District Judge.
This case is before us on cross appeals by the defendant and the Government. David Big Crow appeals his conviction for assault with a dangerous weapon under 18 U.S.C. sections 1153 and 113(c), and assault resulting in serious bodily injury under 18 U.S.C. sections 1153 and 113(f). The Government appeals the sentence imposed by the district court following Big Crow's conviction. We affirm.
In the early morning of October 9, 1988, following an evening of heavy drinking, Big Crow and his wife, Margaret, returned from a dance to their trailer home near Porcupine, South Dakota, on the Pine Ridge Indian Reservation. They were met there by Cheryl Ferguson, Donald Twiss, and James Twiss, friends of the Big Crows who had attended the same dance and who also had been drinking. On entering the Big Crow residence, James Twiss went to sleep on a couch. The others, accompanied by Tanya Kills Warrior, who had attended the dance with the Big Crows, and Cathy Iron Cloud, who had been babysitting the Big Crow children, began to play a drinking game called quarter pitch. A half hour later, Donald Twiss left the game and went to sleep on the floor next to the couch his brother occupied.
Testimony from the various participants about ensuing events differs considerably. Some time later, Big Crow also got up and left the kitchen, where the game took place. When he returned, Margaret Big Crow was making a telephone call. Big Crow tackled her and the two fell into the living room. Margaret Big Crow testified that they fell on Donald Twiss, who had been asleep on the floor, and that Twiss then moved across the room. Donald Twiss testified that he awoke feeling a Cheryl Ferguson testified that upon entering the living room from the bathroom, she observed Big Crow holding a piece of firewood and Donald Twiss rolling over on the floor with blood on his face. She could not tell whether or not Big Crow had struck Donald Twiss. She stated that Big Crow and James Twiss started fighting and that Big Crow subsequently went outside.
sharp pain above his eye and bleeding from his forehead. Twiss also stated that Big Crow was standing next to him with a piece of firewood in his hand, making derogatory remarks about the Twiss family. Both Donald and James Twiss testified that James Twiss then got up from the couch. Big Crow challenged James Twiss with the piece of firewood. Donald Twiss testified that James Twiss then knocked Big Crow to the floor. James Twiss testified that Big Crow hit him in the ribs with the firewood, after which he hit Big Crow, who then ran outside.
Cathy Iron Cloud testified that she saw Big Crow pick James Twiss up off the couch and that the two men started fighting. They stepped on Donald Twiss, who moved toward the fireplace. Iron Cloud testified that Donald Twiss was not bleeding at this point. She stated that James Twiss pinned Big Crow to the wall with his forearm, and that Big Crow reached into the wood box and picked up a log. Iron Cloud stated that after hitting James Twiss with the log, Big Crow threw it toward the fireplace, where it struck Donald Twiss. She testified that she could not tell whether or not Big Crow intended the log to hit Donald Twiss.
Iron Cloud and James Twiss then took Donald Twiss into the bathroom to try to stop the bleeding from his head. Five minutes later they heard yelling in the kitchen and emerged from the bathroom to see Big Crow holding a folding chair and Margaret Big Crow falling to the floor, unconscious. Donald Twiss testified that he saw Big Crow hit Margaret Big Crow with the chair. Neither James Twiss nor Iron Cloud actually witnessed Margaret Big Crow being struck.
Big Crow then left the trailer. Donald Twiss called the police and requested an ambulance for Margaret Big Crow. Approximately thirty minutes later, police arrived and Donald Twiss and Margaret Big Crow were taken to a hospital in Pine Ridge. Twiss had a severe forehead laceration with an underlying bone fracture. Margaret Big Crow remained unconscious until noon on October 9.
Big Crow was standing outside the trailer with Tanya Kills Warrior when the police approached. She testified that Big Crow ran off when he saw the police. When the police officers were unable to find Big Crow, two of them drove away, leaving two more inside the trailer. Shortly thereafter, Big Crow returned to the trailer, where he was arrested and handcuffed. Officer Cameron Young Bear testified that Big Crow struggled slightly while being handcuffed, but made no attempt to escape and told Young Bear that he gave himself up. Young Bear also testified that he took as evidence the piece of firewood with which Big Crow allegedly struck Donald Twiss. Laboratory testing revealed specks of human blood on the wood, but they were not sufficient in quantity to be grouped for blood type.
Big Crow was charged with assault with a dangerous weapon and assault resulting in serious bodily injury for the attack on Donald Twiss. He pleaded not guilty and a jury convicted him of both counts. Because the offense occurred after November 1, 1987, the United States Sentencing Guidelines apply.
Under the Guidelines, aggravated assault has a base offense level of 15. U.S.S.G. Sec. 2A2.2(a). Use of a dangerous weapon and the infliction of serious bodily injury increase the offense level by 8 levels for a total of 23. Id. Secs. 2A2.2(b)(2)(B), 2A2.2(b)(3)(B). Big Crow had no criminal record, giving him a criminal history category of I. The United States Probation Officer's presentence investigation report recommended that Big Crow receive two points for acceptance of responsibility, and suggested that a departure from the Guideline range might be warranted because Big The district court gave Big Crow a two-point reduction for acceptance of responsibility over the Government's objection. 1 The court also departed downward from the Guideline range, sentencing Big Crow to 24 months imprisonment and two years of supervised release to include treatment for alcohol abuse. The court's reasons for the departure were Big Crow's intoxication at the time of the offense, his lack of a prior criminal record, his excellent employment history, and his consistent efforts to overcome the adverse living conditions on the Pine Ridge reservation. The court also noted that it had received and considered letters written on Big Crow's behalf by community leaders and a Bureau of Indian Affairs official.
Crow's offense was out of character and he had been a decent citizen living in a difficult environment. An offense level of 23 has a Guideline range of 46-54 months, while an offense level of 21 has a range of 37-46 months.
Big Crow contends on appeal that the evidence was insufficient for the jury to find that he intentionally assaulted and injured Donald Twiss. The Government claims that the district court erred in granting Big Crow two points for acceptance of responsibility and in departing downward from the Guideline range in sentencing Big Crow. We address these arguments in turn.
In reviewing a jury conviction, we must consider the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). We must uphold the verdict if substantial evidence in the record supports it. See United States v. Elk, 658 F.2d 644, 646 (8th Cir.1981); United States v. Schmidt, 626 F.2d 616, 617 (8th Cir.1980).
Big Crow contends that because Cathy Iron Cloud was the only witness who had not been drinking heavily, her testimony is entitled to great weight. Iron Cloud testified that she saw no blood on Donald Twiss's face until after the piece of firewood Big Crow threw struck Twiss. Big Crow claims that this testimony supports the inference that Twiss's injury was accidental rather than intentional.
Witness credibility is a question of fact for the jury. See United States v. Cegelka, 853 F.2d 627, 629 (8th Cir.1988). Additionally, the question of intent often turns on the credibility of witnesses "and is peculiarly the province of the fact finder." United States v. Reeves, 730 F.2d 1189, 1195 (8th Cir.1984) (quoting United States v. Singer, 660 F.2d 1295, 1302 (8th Cir.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1030, 71 L.Ed.2d 314 (1982)). Moreover, intent may be proved by circumstantial evidence. See United States v. Elk, 658 F.2d 644, 646 (8th Cir.1981).
After carefully reviewing all the testimony, we find sufficient evidence from which the jury could conclude beyond a reasonable doubt that Big Crow intentionally assaulted Donald Twiss with a piece of firewood. Cheryl Ferguson and James Twiss testified that they saw Big Crow holding a piece of firewood while standing next to Donald Twiss, who was on the floor holding his head and moaning. Cheryl Ferguson and Donald Twiss testified that Twiss's head was bleeding at this point. Several witnesses heard Big Crow express animosity toward the Twiss family and saw him challenge James Twiss with the firewood. Even Cathy Iron Cloud, who stated that Donald Twiss was not bleeding until after he was struck by the log Big Crow threw, could not tell whether Big Crow had intended to hit Twiss. Viewing the evidence in the light most favorable to the Government, we believe that sufficient evidence supports the jury's verdict.
The Government claims that the...
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