U.S. v. Zunie

• Decision Date: 19 April 2006
• Docket Number: No. 04-2256.,04-2256.
• Citation: 444 F.3d 1230
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randall ZUNIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

444 F.3d 1230

UNITED STATES of America, Plaintiff-Appellee, v. Randall ZUNIE, Defendant-Appellant.

No. 04-2256.

United States Court of Appeals, Tenth Circuit.

April 19, 2006.

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William G. Stripp, Ramah, New Mexico for the Defendant-Appellant.

Kyle T. Nayback, Assistant United States Attorney, (David C. Iglesias, United States Attorney with him on the brief) for the Plaintiff-Appellee.

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.

LUCERO, Circuit Judge.

Shortly before midnight one evening, Randall Zunie, dangerously drunk and recklessly out of control, drove his truck into the opposite lane of traffic and collided head-on with a smaller vehicle. The collision left a four-year-old boy permanently and severely disabled. Following a jury trial, the federal government obtained a conviction against Zunie for assault resulting in serious bodily injury. Zunie appeals, arguing that he lacked the requisite mens rea to suffer conviction. Because we conclude that a finding of recklessness supports a conviction for assault resulting in serious bodily injury, we AFFIRM Zunie's conviction. Additionally, although we AFFIRM Zunie's sentence, we REMAND for the district court to set an appropriate restitution payment schedule.

I

Careening down a 45 mph road at a speed exceeding 70 mph, Randall Zunie swerved between lanes in his one-ton truck and forced five or six vehicles off the road and onto a gravel shoulder. He then crossed into the opposite lane of traffic, heading directly toward Carla Laweka's half-ton pickup truck. Laweka attempted to evade Zunie, but to no avail. Zunie struck her vehicle head-on. After the collision, Laweka's four-year-old child, Nicky, lay unconscious on the floor. Laweka and her other child, Kayla, were in pain from serious injuries.

Kayla managed to roll down the truck's window and escape the smoke-filled cab. Despite a fractured left wrist, Laweka picked Nicky up and passed him through the window to Kayla. Laweka then crawled out of the truck through her own window. After laying Nicky on the ground, Laweka saw Zunie staggering toward her family with bloodshot eyes and reeking of alcohol. Zunie put his arm around Laweka and asked, "what's wrong? What happened?" Laweka pushed Zunie away, at which point he returned to his truck and attempted to start the engine. When his truck would not cooperate, Zunie packed some items from his cab into a brown paper sack and fled into the woods while sirens blared in the background, announcing the imminent arrival of emergency vehicles.

Due to severe head injuries sustained in the crash, Nicky has lost all ability to speak, move, or swallow food and water. He has lost control of his bowel and bladder and cannot keep his head elevated for a prolonged period of time. He is totally dependent on others for his care, which is being administered by his parents and a team of medical professionals.

Because Zunie and the Lawekas are Zuni Indians and the collision occurred on the Zuni Reservation, the Indian Major Crimes Act ("IMCA"), 18 U.S.C. § 1151 et. seq., limited the range of criminal charges available to the federal government. Pursuant to the IMCA, the federal government has jurisdiction to charge Indians with a select few crimes against other Indians for incidents occurring on Indian land. These crimes include murder, manslaughter, kidnapping, rape, maiming, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, and robbery. See 18 U.S.C. § 1153(a). The government elected to charge Zunie with assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. The jury returned a verdict of guilty and the district court denied Zunie's subsequent motion for judgment of acquittal.

In sentencing Zunie, the court adopted the factual findings of the pre-sentence report ("PSR"), which calculated Zunie's base offense level at 15. The PSR added six levels pursuant to U.S.S.G. § 2A2.2(b)(3)(C) because the victim sustained permanent or life-threatening bodily injury and added two levels for "making false statements, not under oath, to law enforcement officers." U.S.S.G. § 3C1.1. Starting from the PSR's recommended offense level of 23, the district court departed upwards fifteen levels. With the departures, Zunie faced an offense level of 38, which carries a guideline imprisonment range of 235 to 293 months. The statutory maximum for the underlying offense, however, is 120 months. Therefore, the court sentenced Zunie to the statutory maximum. The court also imposed an alternative sentence of 120 months "in the event the guidelines are determined to be unconstitutional." Zunie appeals his conviction and sentence.

II

To convict Zunie of assault resulting in serious bodily injury, the government had to prove: (1) that Zunie assaulted Nicky; (2) that Nicky suffered serious bodily injury; (3) that the assault occurred in Indian country; and (4) that Zunie is an Indian. See 18 U.S.C. §§ 113(a)(6) and 1153. Zunie argues that insufficient evidence supports the jury's verdict because the government failed to prove the first element, viz., that Zunie is guilty of assault. Specifically, he asserts that he lacked a culpable mens rea. We review challenges to the sufficiency of the evidence de novo and "ask only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir.2000) (quotations and citations omitted). The government presented sufficient evidence that Zunie acted recklessly, and we conclude that recklessness is a culpable mens rea with respect to assault resulting in serious bodily injury under § 113(a)(6).

We have previously held that assault resulting in serious bodily injury is a general intent crime. See United States v. Benally, 146 F.3d 1232, 1237 (10th Cir. 1998) ("It is not necessary that defendant have assaulted the victim with the intent to do serious bodily harm — the resulting serious bodily injury coupled with the general intent to assault is sufficient to satisfy the elements of the felony"). In the common law, crimes are classified as either "general intent" or "specific intent" crimes. "This venerable distinction, however, has been the source of a good deal of confusion." United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Federal courts have adopted inconsistent definitions of "general intent" and "specific intent." See, e.g., W. LaFave & A. Scott, Handbook on Criminal Law § 28, at 201-202 (1972) (describing the various formulations of "general intent" and "specific intent"). In this circuit, we chose the following distinction: "A specific intent crime is one in which an act was committed voluntarily and purposely with the specific intent to do something the law forbids. In contrast, a general intent crime is one in which an act was done voluntarily and intentionally, and not because of mistake or accident." United States v. Blair, 54 F.3d 639, 642 (10th Cir.1995) (quotations and citations omitted). In other jurisdictions, by contrast, "`general intent' will be used to characterize an intent to do something on an undetermined occasion, and `specific intent' to denote an intent to do that thing at a particular time and place." LaFave & Scott § 28, at 202. Frustration with this ad hoc approach "led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea . . . exemplified in the American Law Institute's Model Penal Code." Bailey, 444 U.S. at 403-04, 100 S.Ct. 624.

The Model Penal Code suggests replacing conceptions of "specific intent" and "general intent" with a "hierarchy of culpable states of mind," including (1) purpose, (2) knowledge, (3) recklessness, and (4) negligence. Id.¹ What the common law would traditionally consider a "general intent" crime, such as assault resulting in serious bodily injury, encompasses crimes committed with purpose, knowledge, or recklessness. See Model Penal Code § 2.02(3) ("When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto. . . . There is a rough correspondence between this provision and the common law requirement of `general intent.'"); see also United States v. Lewis, 780 F.2d 1140, 1142-1143 (4th Cir.1986) (noting that assault resulting in serious bodily injury is a general intent crime because "[i]n the absence of an explicit statement that a crime requires specific intent, courts often hold that only general intent is needed"). The Model Penal Code's approach accords with our formulation of "general intent" crimes, as a crime committed with purpose, knowledge, or recklessness amounts to an act "done voluntarily and intentionally." Blair, 54 F.3d at 642. Similarly, our definition of "general intent" crimes specifically excludes acts committed "because of mistake or accident," id., just as the Model Penal Code does not include "negligence" as a relevant mens rea for "general intent" crimes. Model Penal Code § 2.02(3).

Thus, under the Model Penal Code, an individual who acts purposely, knowingly, or recklessly possesses a culpable mens rea with respect to general intent crimes. This conclusion accords with the approach taken by the Eighth and Ninth Circuits, the only two circuit courts to have considered what constitutes the relevant mens rea for assault resulting in serious bodily injury under § 113(a)(6). In United States v. Loera, 923 F.2d 725 (9th Cir.1991), the Ninth Circuit addressed this issue in a case with nearly identical facts to the matter...