U.S. v. Sturgis

• Decision Date: 21 February 1995
• Docket Number: No. 94-5142,94-5142
• Citation: 48 F.3d 784
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Wayne STURGIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 784

48 F.3d 784

63 USLW 2607

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Wayne STURGIS, Defendant-Appellant.

No. 94-5142.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 9, 1994.

Decided Feb. 21, 1995.

ARGUED: Suzanne Little, Alexandria, VA, for appellant. Timothy Joseph Shea, Asst. U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Glen Trimper, Alexandria, VA, for appellant. Helen F. Fahey, U.S. Atty., Alexandria, VA, for appellee.

Before HALL, WILKINSON, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge WILLIAMS joined. Judge HALL wrote a dissenting opinion.

OPINION

WILKINSON, Circuit Judge:

Jeffrey Wayne Sturgis appeals his conviction for assault with a dangerous weapon, 18 U.S.C. Sec. 113(c), and assault on a correctional officer with a dangerous weapon, D.C.Code Sec. 22-505(b). Sturgis, who is HIV positive, bit two correctional officers who were attempting to restrain him during an altercation at the Lorton Reformatory. We conclude that the evidence was sufficient to establish Sturgis' intent to harm the correctional officers. The question of whether Sturgis' teeth qualified as a dangerous weapon was also one of fact for the jury. Here the jury could reasonably have concluded that Sturgis used his mouth and teeth as a "dangerous weapon" during the incident. Accordingly, we affirm Sturgis' conviction.

I.

On July 15, 1993, Jeffrey Wayne Sturgis traveled to the Lorton Reformatory in Lorton, Virginia, to visit an inmate. Sturgis entered the "visiting trailer," where he was required to present identification and submit to a search of his person and belongings. Signs posted outside the trailer warned that it was a crime to introduce contraband, including narcotics, into the prison. In addition, Sturgis was advised that he would be subject to a search before being permitted to visit an inmate of the facility.

After Sturgis entered the "shakedown" room, Corporal Price and Officer John Doe conducted a pat-down search of his person. During the pat-down, Corporal Price discovered what he believed to be a foreign object near Sturgis' groin. When questioned about the object, Sturgis declared that he wished to end the search and forego the visit. Sturgis then reached into his pants and transferred some object into his mouth in a cupped hand. Officer Doe, suspecting that Sturgis was attempting to conceal contraband, held Sturgis' jaw to force the object out of his mouth. Sturgis began to struggle; only moments later, he spit out a pink substance that was later determined to be bubble gum. As Officer Doe reached forward to retrieve the substance, Sturgis lunged at Officer Doe and bit him on the left thumb, holding the bite for several seconds and inflicting a serious wound that bled heavily.

As the struggle escalated, other correctional officers entered the shakedown area to help restrain Sturgis, who was kicking and flailing about. One of them, Officer Jane Doe, attempted to grab Sturgis from behind. At one point, the officers and Sturgis lost their footing and tumbled to the ground. When Sturgis' head landed on Officer Jane Doe's forearm, he seized the opportunity to bite her. Officer Doe attempted repeatedly to break the bite and free her arm, yet Sturgis again held the bite for several seconds; the resulting wound bled profusely. Both officers sought immediate medical attention and have been treated by their private physicians since the incident. At the time of trial, both officers had been tested for HIV on at least two occasions; each test was negative.

After several correctional officers succeeded in restraining Sturgis, they observed him slipping in and out of consciousness. Fearing that he had swallowed narcotics, the officers transported Sturgis to DeWitt Army Hospital for treatment and observation. While at the hospital, Sturgis continued to be combative, shouting and struggling with hospital and law enforcement personnel. Testimony from those present indicates that Sturgis attempted to bite and spit at the medical personnel treating him. Sturgis also threatened to "come back and ... kill" them. When a corpsman asked Sturgis to stop biting and spitting because he was HIV positive, Sturgis responded that he knew of his condition and was trying to infect the medical staff. Officer Jane Doe heard Sturgis threaten the corpsman, "I'll bite you like I did her. I hope you get it."

Sturgis' stomach was pumped at the hospital. Although no foreign objects were found, a drug screen revealed traces of cocaine and marijuana in his bloodstream. A blood test performed at DeWitt Army Hospital also confirmed Sturgis' HIV positive status. Meanwhile, Sturgis' car, still parked at the Lorton Reformatory, was searched. Two bags were discovered in the trunk; a search of the bags revealed balloons filled with heroin, cocaine base, and marijuana.

At Sturgis' trial, the government presented medical records compiled while Sturgis was an inmate at Lorton. Those records contained eight references to Sturgis' HIV positive status and indicated that he had been informed of that status in 1991. The United States also offered expert testimony to establish that HIV, which is found in human saliva, can be transmitted through a bite. Dr. Alan Joseph Morrison, Jr., a board-certified physician in infectious diseases, testified that "[t]here are a number of reported cases in the literature, in accepted medical literature where transmission of HIV has been by an instance of biting or by saliva contact."

Sturgis testified in his own behalf. He insisted that he was unaware of his HIV positive status until counsel informed him of the results of the test taken at DeWitt Army Hospital in July of 1993. Sturgis also maintained that he had no intent to assault the officers, but merely acted in self-defense. According to Sturgis, he bit Officer John Doe only as the officer reached into his mouth and bit Officer Jane Doe on the forearm because she was choking him from behind.

After a one-day trial, the jury convicted Sturgis of two counts of assault with a dangerous weapon, 18 U.S.C. Sec. 113(c), two counts of assault on a correctional officer with a dangerous weapon, D.C.Code Sec. 22-505(b), and three counts of felony possession of narcotics, 21 U.S.C. Sec. 844(a). The charge to the jury on the dangerous weapon element of the assaultive crimes reads as follows:

[T]he term deadly or dangerous weapon includes any object capable of being readily used by one person to inflict serious bodily injury upon another person. And if you believe that the defendant's mouth and teeth meet this definition, then his mouth and teeth can be considered by you as a dangerous weapon.

At sentencing, the district court enhanced Sturgis' base offense level by two levels for obstruction of justice under U.S.S.G. Sec. 3C1.1 because Sturgis had offered perjured testimony about his knowledge of his HIV status. The court sentenced Sturgis to 168 months' imprisonment. Sturgis appeals both his conviction and the enhancement of his sentence.

II.

Conviction for assault with a dangerous weapon under 18 U.S.C. Sec. 113(c) requires proof of (1) an assault, (2) with a dangerous weapon, (3) with intent to do bodily harm. United States v. Schoenborn, 4 F.3d 1424, 1430 (7th Cir.1993). Likewise, conviction for assault with a dangerous weapon upon a correctional officer under D.C.Code Sec. 22-505(b) requires proof of the above elements plus (1) knowledge that the victim was a correctional officer of a correctional institution of the District of Columbia (2) who was engaged in the performance of official duties at the time of the assault. Nelson v. United States, 580 A.2d 114, 116-17 (D.C.App.1990). Sturgis insists that the evidence presented at trial was insufficient to establish the elements of each offense.

A.

Sturgis claims that the evidence fails to establish that he acted with the requisite intent to do bodily harm to the correctional officers. Rather, he maintains that he acted wholly in self-defense.

When determining whether sufficient evidence exists to sustain a conviction, this court views 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). Here the evidence amply establishes Sturgis' intent to inflict harm. The record demonstrates that Sturgis acted in a violent and aggressive manner throughout the confrontation with the correctional officers and continued to kick, scream, and thrash about even after being taken to DeWitt Army Hospital. Indeed, Officer John Doe testified that it took no less than six correctional officers to restrain Sturgis in the shakedown area at Lorton. Moreover, Sturgis' own statements, specifically his threats against the medical personnel who treated him, indicate that he was aware he was infected with HIV and wanted to infect others. Finally, evidence that Sturgis held each of the bites on the correctional officers for several seconds indicates intent to inflict serious bodily harm, not merely to defend himself from attack.

B.

We next address whether Sturgis' use of his teeth to bite the correctional officers amounted to use of a "dangerous weapon."

Title 18 itself does not provide a general definition of "dangerous weapon." ¹ The United States Sentencing Guidelines, however, define a dangerous weapon as "an instrument capable of inflicting death or serious bodily injury." U.S.S.G. Sec. 1B1.1, commentary 1(d). The Supreme Court has eschewed a mechanical test of dangerousness in favor of a multi-factored inquiry which emphasizes the capacity of the instrument to instill fear or to inflict harm. McLaughlin v. United States, 476 U.S. 16, 17-18, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986) (holding that unloaded handgun used during bank robbery was dangerous weapon for purposes of 18 U.S.C. Sec. 2113(d), since display of gun would incite fear in the...