U.S. v. Loera

• Citation: 923 F.2d 725
• Decision Date: 16 January 1991
• Docket Number: No. 89-10429,89-10429
• Parties: 32 Fed. R. Evid. Serv. 177 UNITED STATES of America, Plaintiff-Appellee, v. Reginald LOERA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 725

923 F.2d 725

32 Fed. R. Evid. Serv. 177

UNITED STATES of America, Plaintiff-Appellee, v. Reginald LOERA, Defendant-Appellant.

No. 89-10429.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1990.

Decided Jan. 16, 1991.

Deborah L. Williams, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.

Gary A. Husk, W. Allen Stooks, Asst. U.S. Attys., Phoenix, Ariz., for plaintiff-appellee.

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

Before ALARCON, BRUNETTI and KOZINSKI, Circuit Judges.

ALARCON, Circuit Judge:

Reginald Loera appeals from his conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. Sec. 113(f). Loera contends that there was insufficient evidence to establish the required element of willfulness. He further contends that evidence of his prior convictions was improperly admitted into evidence. We disagree and affirm.

I. Facts

On October 18, 1988, Reginald Loera was indicted on one count of second-degree murder and one count of assault resulting in serious bodily injury. The offenses occurred on the Fort Mohave Indian Reservation, Arizona. Accordingly, the district court had jurisdiction over this matter pursuant to 18 U.S.C. Sec. 113. On June 5, 1989, following a jury trial, Loera was convicted of the lesser included offense of involuntary manslaughter and of assault resulting in serious bodily injury.

The evidence presented at trial showed that on August 28th, 1988, Loera spent the afternoon drinking beer with his friends along the banks of the Colorado river in the Mohave Valley area of Arizona. After drinking beer for approximately seven hours, Loera drove his pickup truck in an easterly direction on Plantation Road, the west bound lane of which is within the Fort Mohave Indian Reservation, Arizona. Clint Clopton testified that immediately prior to the accident Loera crossed the centerline and forced Mr. Clopton's car off the road. Clopton observed Loera swerve across the road a second time and collide violently with a compact car driven by Kimberly Secor. Mrs. Secor died from injuries suffered in the collision. Her five-year old son's skull was fractured.

Loera admitted to the police that he drove the truck at the time of the accident. He also stated he had consumed only three beers. A blood test taken two hours after the accident revealed that Loera had a blood alcohol level of .26. Lucien C. Haag, a criminologist, testified that an individual's driving ability is impaired when he or she has a blood alcohol level of .08. He further testified that in order to have had a .26 blood alcohol level, Loera must have consumed at least eighteen cans of beer. Evidence was also presented that the brakes in Loera's truck were in a defective condition.

At the time of the accident Loera had suffered three prior convictions in California for driving under the influence of intoxicating liquor and was on probation. He was under court order not to drink. His driver's license had been revoked for one year on February 19, 1988, and had not been renewed.

After the Government presented its case in chief, Loera moved for a judgment of acquittal on the charge of assault resulting in serious bodily injury. He argued that the Government had failed to present evidence of an essential element of that crime. The motion for a judgment of acquittal was denied.

Loera also raised timely objections to the admission of certain records offered to prove that he had been convicted of driving under the influence of an intoxicating liquor. The district court overruled these objections. Testimony concerning the records was allowed for the limited purpose of establishing the element of malice necessary to prove second-degree murder.

The district court sentenced Loera on August 21, 1989. A timely notice of appeal was filed on August 25, 1989.

II. Discussion

Loera challenges the sufficiency of the evidence presented on the charge of assault resulting in serious bodily injury. He maintains that a conviction for this crime cannot be sustained unless the Government presents evidence of "deliberate and obvious assaultive conduct." Appellant's Opening Brief at 8. He argues that the Government failed to present any evidence that his conduct was willful or that he intended to injure the persons in the other vehicle.

To determine if evidence is sufficient to support a criminal conviction, we must decide "whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). We review the evidence in the light most favorable to the government. United States v. Feldman, 853 F.2d 648, 654 (9th Cir.1988), cert. denied, 489 U.S. 1030, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989).

Section 113 provides as follows:

Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:

. . . . .

(f) Assault resulting in serious bodily injury, by fine of not more than $10,000 or imprisonment for not more than ten years, or both.

Section 113(f) does not specify the elements of the crime of assault resulting in serious bodily injury. In United States v. Dupree, 544 F.2d 1050 (9th Cir.1976), we held that "[t]he common-law meaning of a common-law term used in a federal criminal statute provides a source from which statutory precision may be derived." Id. at 1051. We summarized the elements of an assault at common law in the following language:

an assault is committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.

Id. (citations omitted).

Loera concedes that common law assault under section 113(f) is a general intent crime. Appellant's Opening Brief at 6. See United States v. Lewis, 780 F.2d 1140, 1142-43, (4th Cir.1986) (section 113(f) is a general intent crime), United States v. Big Crow, 728 F.2d 974, 975 (8th Cir.1984) (assault under section 113(f) requires only general intent). Loera contends, however, that because the Government failed to establish that his conduct was willful, the district court erred in denying his motion for judgment of acquittal.

The term "willful" as used at common law as an element of a general intent crime refers to a volitional act. See W. Clark, Clark's Criminal Law 38 (St. Paul 1894) ("A willful act ... is a voluntary act."). A voluntary act is one in which the individual has the ability to choose his course of conduct. "The only question is whether the person could have refrained from doing it, or whether he was controlled by some irresistible power. If he could have refrained, the act is voluntary; but, if he was impelled by some irresistible force, it is involuntary." Id. See also United States v. Baker, 641 F.2d 1311, 1317 (9th Cir.1981) (the term "willful" defined " 'as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful.' " (quoting United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir.1974)).

The evidence at trial indicated that Loera voluntarily consumed at least eighteen cans of beer prior to the collision. His blood alcohol level was more than three times greater than the level at which a person's driving ability is impaired. "The law will presume that a person intended the natural and probable consequences of his voluntary acts." Clark, supra, at 42. The willful conduct in this case was the operation of a motor vehicle while in a state of voluntary intoxication. "[A] person may become so drunk as to lose the power to control his action, but the law does not excuse him if his intoxication is voluntary." Clark supra at 38. See also Hopt v. People, 104 U.S. 631, 633, 26 L.Ed. 873 (1881) ("At common law, indeed as a general rule, voluntary intoxication affords no excuse, justification, or extenuation of a [general intent] crime committed under its influence."); United States v. Meeker, 527 F.2d 12, 14 (9th Cir.1975) ("Voluntary intoxication is not a defense to a crime of general intent.")

At common law a criminal battery was shown if the defendant's conduct was reckless. F. Wharton, Wharton's Criminal Law Sec. 178 at 296 (C. Torcia 14th ed. 1979). A defendant can be convicted of assault under section 113(f) if a battery is proved. "[A]n assault is an attempted battery and proof of a battery will support conviction of assault." United States v. Dupree, 544 F.2d 1050, 1052 (9th Cir.1976) (citations omitted).

A rational trier of fact could have found that Loera's conduct in driving while in a state of intoxication showed a reckless disregard for the safety of others. The same facts which support the finding of involuntary manslaughter in the death of Mrs. Secor, support a finding of assault resulting in serious bodily injury to her son. "[I]f a defendant drove his automobile in a reckless or criminally negligent manner and caused the death of a pedestrian, he would be guilty of involuntary manslaughter; if the pedestrian is merely injured, defendant would be guilty of a criminal battery." Wharton supra at 296. Accord Perkins, Non-Homicide Offenses Against the Person, 26 B.U.L. 119, 126 (1946). See also Hall, Assault and Battery by the Reckless Motorist, 31 J.Crim.L. & Criminology 133 (1940) and cases cited therein.

The district court did not err in denying the motion for judgment of acquittal. The evidence was sufficient to convince any rational trier of fact that Loera acted willfully in consuming alcohol and then driving his truck on the highway in disregard for the safety of others in his path.

III.

Loera next argues that the admission of the...