U.S. v. W.T.T.

• Decision Date: 27 June 1986
• Docket Number: No. 85-5314,85-5314
• Citation: 800 F.2d 780
• Parties: UNITED STATES of America, Appellee, v. W.T.T. (a juvenile), Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 780

800 F.2d 780

UNITED STATES of America, Appellee, v. W.T.T. (a juvenile), Appellant.

No. 85-5314.

United States Court of Appeals Eighth Circuit.

Submitted June 27, 1986. ^*

Decided Sept. 11, 1986.

Debra D. Watson, Rapid City, S.D., for appellant.

Reed Rasmussen, Asst. U.S. Atty., Rapid City, S.D., for appellee.

Before ARNOLD and FAGG, Circuit Judges, and OLIVER, ^** Senior District Judge.

ARNOLD, Circuit Judge.

Defendant W.T.T., a juvenile, appeals from a judgment of the District Court for the District of South Dakota ¹ declaring him a juvenile delinquent. The District Court found that W.T.T. had committed three offenses: simple assault, a violation of 18 U.S.C. Sec. 113(e) (Count I); assault by striking, beating, and wounding, a violation of 18 U.S.C. Sec. 113(d) (Count II); and robbery, a violation of 18 U.S.C. Sec. 2111 (Count III). ² The defendant was committed to the custody of the Attorney General or his authorized representative for the period of his minority. See 18 U.S.C. Sec. 5037. On appeal, the defendant argues that the government presented insufficient evidence to support a finding of guilt on any count. We disagree, and affirm as to all three counts.

I.

The charges against W.T.T. stem from a violent confrontation between two groups of people that occurred August 18, 1984 on the Pine Ridge Indian Reservation in South Dakota. Very early that morning, a pickup carrying Clifford Grass, Rose Cottier, Lori Ann Cottier, and three others became stuck in the mud on a dirt road near Porcupine, South Dakota. Some time later, two cars carrying W.T.T. and ten others arrived on the scene. Shortly after the cars arrived, a series of fights erupted between the pickup occupants and the car occupants.

Almost everyone present had been drinking heavily, and, not surprisingly, accounts of the incident given by different witnesses at trial varied substantially. However, prosecution witness Lori Ann Cottier testified that she had not been drinking, and her testimony on this point was corroborated by other witnesses. The District Court found her testimony particularly credible, and relied principally on it in making findings of fact. Tr. 172.

Lori Ann testified that while Clifford Grass was jacking up the pickup, W.T.T. came up behind Grass and hit him, knocking him to the ground. Tr. 109. Lori Ann continued that when Clifford stood back up, he was knocked down again, and W.T.T. and several others began hitting him. Tr. 110-111. Other fights began to break out throughout the crowd. Tr. 110-112. Grass's girlfriend, Rose Cottier, was beset by three assailants; Grass moved to protect her, lying on top of her and proclaiming that she was pregnant. Tr. 112. W.T.T. and others began beating Grass again, using their fists and clubs. Tr. 112-113. Grass tried to escape several times by getting into the pickup, but each time W.T.T. and the others pulled him out and continued beating him. Tr. 114-115.

Lori Ann further testified that she saw one of Grass's attackers, whom she later identified as W.T.T., with a knife. Tr. 115-116. She stated that she saw W.T.T. use the knife on Grass when Grass was trying to get in the pickup. Tr. 116-117. Dr. Robert Israel, who examined Grass later that day, testified that Grass had a wound on the rear of his shoulder that could have been made by a knife, as well as a number of other injuries. Tr. 72.

Finally, Lori Ann testified that after the stabbing, W.T.T. and the other assailants got in the back of the pickup and began taking things; she saw W.T.T. take a toolbox, while the others took a jack and some groceries. Tr. 118-119, 133-134. Grass took this opportunity to crawl through the pickup and over to Rose Cottier, lying beside her on the ground. Tr. 134. Unable to run, Grass and Rose Cottier moved to the other side of a barbed-wire fence near the road. Tr. 119. At this point, Lori Ann and another of the pickup's occupants ran from the scene and went to call the police. Id.

II.

As in a criminal case against an adult, the government's burden in a juvenile case is to prove all elements of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970). The standard by which the sufficiency of the evidence is reviewed on appeal is "whether a reasonable factfinder could have found that the evidence, viewed in the light most favorable to the government, established the defendant's guilt beyond a reasonable doubt." United States v. De Leon, 768 F.2d 629, 631 (5th Cir.1985); see United States v. GJH, 681 F.2d 527 (8th Cir.1982).

We think this standard is clearly met in the present case. The defendant's arguments to the contrary are based largely upon the fact that various witnesses gave inconsistent and contradictory versions of the confrontation and W.T.T.'s behavior. However, we conclude that a factfinder could very reasonably have sifted through the evidence and determined, as the District Court did, that Lori Ann Cottier's testimony was credible and that, based on her testimony, W.T.T. was guilty of the offenses for which he was adjudged a juvenile delinquent. Lori Ann's testimony as to W.T.T.'s participation in the beating of Grass, and as to his use of the knife on Grass, provide ample support for the conclusion that W.T.T. committed simple assault, 18 U.S.C. Sec. 113(e), and assault by striking, beating, and wounding, 18 U.S.C. Sec. 113(d).

The District Court's determination that the defendant committed robbery, 18 U.S.C. Sec. 2111, is also supported by Lori Ann's testimony. Robbery, under Sec. 2111, is the taking of anything of value from the person or presence of another by force and violence or by intimidation. "[P]roperty is in the presence of a person if it is so within his reach, inspection, observation or control, that he could if not overcome by violence or prevented by fear, retain his possession of it." United States v. Burns, 701 F.2d 840, 843 (9th Cir.), cert. denied, 462 U.S. 1137, 103 S.Ct. 3123, 77 L.Ed.2d 1375 (1983). Lori Ann's testimony was that Grass and Rose Cottier had been beaten, that W.T.T. took the toolbox from their truck, and that when he did so Rose Cottier was on the ground beside the truck and Grass was either crawling through the cab of the truck or collapsed on the ground beside Rose Cottier. Thus, her testimony establishes all the elements of a violation of 18 U.S.C. Sec. 2111.

III.

We conclude that the government adduced sufficient evidence to support findings that W.T.T. committed the offenses upon which the District Court based its adjudication of juvenile delinquency. Accordingly, the judgment of the District Court is

Affirmed.

OLIVER, Senior District Judge, concurring in part and dissenting in part.

I agree that the district court's adjudications of juvenile delinquency should be affirmed in regard to Count I and Count II. I respectfully dissent from the majority's affirmance in regard to Count III. ¹

I.

I agree with the majority's statement that "[r]obbery, under Sec. 2111, is the taking of anything of value from the person or presence of another by force and violence or by intimidation." At 782. The crime of robbery, as the majority correctly paraphrased Section 2111, is directed against the taking of property from a particular person or in the presence of another particular person by force and violence, or by intimidation. See at 782. Three essential elements must be proven beyond reasonable doubt in order to establish a violation of Section 2111: First: The act or acts of taking, from the person or presence of another, anything of value; Second: The act or acts of taking such property or money by force or violence, or by means of intimidation; and Third: Doing such act or acts willfully. See 2 Devitt & Blackmar, Federal Practice and Jury Instructions, Sec. 44.03 (3d ed. 1977). ²

The question of when a defendant may have employed force, violence or intimidation in order to take property from or in the presence of a particularly named person or persons is a factual question that must, in my view, be supported by the evidence in a particular case. Norris v. United States, 152 F.2d 808 (5th Cir.1946), cert. denied, 328 U.S. 850, 66 S.Ct. 1118, 90 L.Ed. 1623 (1946), ³ makes clear that the common law crime of robbery and the various federal statutory offenses of robbery have substantially the same essential elements. Most significantly, for purposes of this case, Norris added that the "violence or putting in fear must be at the time of the act or immediately preceding it." (Emphasis added). Id. at 809.

I turn now to how I believe the principles stated should be applied to the factual circumstances of this case.

II.

Count III alleged that the defendant "became a juvenile delinquent in that he did willfully and unlawfully by force and violence and by intimidation, take from the person and presence of Mary Marcella Cottier, Rose Marie Cottier and Clifford Allen Grass, things of value, that is, a towing chain, handyman jack, toolbox with tools and assorted grocery items, property of Bert Cottier, Mary Marcella Cottier and Rose Marie Cottier, in violation of 18 U.S.C. Secs. 1153 and 2111."

The district court made an express finding that "the tool box, ... was taken by the Defendant willfully and unlawfully and by force and violence and by intimidation from the presence of the persons in the pickup, including Marcella Cottier, Rose Marie Cottier and Clifford Allen Grass...." (Tr. 178). I agree with the majority's statement that the district court found Lori Ann Cottier's testimony to be "particularly credible" for the reason that it found that she was the only witness that had not been drinking and that it "relied principally on [her testimony] in making [its] findings of fact." At 781.

I do not, however, agree with the majority's conclusion that Lori Ann's "testimony establishes all the elements of a violation of 18 U.S.C. Sec. 2111." At 782. It is my view that the...