United States v. Farlee

• Decision Date: 09 July 2014
• Docket Number: No. 13–2315.,13–2315.
• Citation: 757 F.3d 810
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Leon Donald FARLEE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

757 F.3d 810

UNITED STATES of America, Plaintiff–Appellee

v.Leon Donald FARLEE, Defendant–Appellant.

No. 13–2315.

United States Court of Appeals,

Eighth Circuit.

Submitted: March 13, 2014.

Filed: July 9, 2014.

Terry L. Pechota, argued, Rapid City, SD, for Appellant.

Mikal Gene Hanson, AUSA, argued, Pierre, SD, for Appellee.

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.

SHEPHERD, Circuit Judge.

A jury convicted Leon Donald Farlee of assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) and assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6). The district court ¹ sentenced Farlee to 60 months imprisonment and ordered him to pay restitution in the amount of $127,716.74. Farlee appeals, claiming the court committed numerous trial errors and requesting the verdict be set aside and his conviction reversed or, in the alternative, that his sentence be vacated and the case remanded for a new trial. We affirm.

I.

“We state the facts in the light most favorable to the jury's verdict.” United States v. Washington, 318 F.3d 845, 850 (8th Cir.2003). Farlee was in a relationship with Leslie Oakie. Late on the night of March 31, 2012, the couple returned to Oakie's trailer on the Cheyenne River Sioux Reservation after a night of drinking. The door to the trailer was locked, so Oakie climbed through a window while Farlee remained at the front door. She was surprised to find her friend Merton Eaton inside the trailer. Eaton had previously loaned Oakie his car and had gone inside the trailer to retrieve his keys. Oakie attempted to get Eaton to leave through the back of the trailer, but he did not do so. Farlee, belligerent and intoxicated, punched through a window on the front door and let himself inside, sustaining a deep cut in his arm, causing significant bleeding. Inside the trailer, Farlee assaulted Eaton near the back window, kicking him in the head with his boots, and caused Eaton severe injury, including lacerations on his left forearm and right arm, facial trauma, multiple lacerations on the right side of his face, and traumatic brain injury.

II.

Farlee contends the trial court committed error by: (1) denying his motion for judgment of acquittal, (2) inadequately instructing the jury, (3) failing to suppress evidence seized with a deficient search warrant, (4) failing to grant a continuance, (5) permitting irrelevant and cumulative testimony, and (6) permitting the Government to use leading questions during direct examination. We address each claim in turn.

A. Motion for Judgment of Acquittal

Farlee argues the district court erred by denying his motion for judgment of acquittal because (1) there was insufficient evidence he used a dangerous weapon, and (2) the evidence showed he was acting in self defense. In considering a district court's denial of a defendant's motion for judgment of acquittal, we view “the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict.” United States v. Barrios–Perez, 317 F.3d 777, 779 (8th Cir.2003) (internal quotation marks omitted). We will uphold the convictions unless “no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Id. (quotations omitted).

i. Use of a Dangerous Weapon

Farlee contends there was insufficient evidence to prove the boots he was wearing constituted a dangerous weapon because they were “floppy, old, and could not have caused any of the injuries that Eaton suffered.” He also claims, due to lack of blood on the boots, there was insufficient evidence indicating the boots had been in contact with Eaton. To obtain a conviction under 18 U.S.C. § 113(a)(3), the Government must prove the defendant used a dangerous weapon, “an object capable of inflicting bodily injury,” during the course of the assault. United States v. Steele, 550 F.3d 693, 699 (8th Cir.2008); United States v. LeCompte, 108 F.3d 948, 952–53 (8th Cir.1997). Whether an object “constitutes a dangerous weapon in a particular case is a question of fact for the jury.” United States v. Phelps, 168 F.3d 1048, 1055 (8th Cir.1999). We have upheld convictions for assault with a dangerous weapon involving kicking a victim with shod feet, including tennis shoes. See, e.g., Steele, 550 F.3d at 699.

The jury heard eyewitness testimony from Oakie that Farlee kicked Eaton in the head repeatedly while wearing his boots. Eaton's treating Emergency Room physician testified that Eaton's head was swollen and cut and had sustained “many blunt-force impacts.” Moreover, Farlee's assertion on appeal that the boots did not have Eaton's blood on them is contrary to the evidence presented from the Government's DNA expert at trial, which supported the finding that Eaton's blood was found on the toe area of both of Farlee's boots. Thus, the evidence was sufficient for a jury to conclude Farlee used his boots to assault Eaton and his boots were capable of causing serious bodily injury. Accordingly, we agree with the district court that the evidence supported Farlee's conviction for assault with a dangerous weapon.

ii. Self Defense

Next, Farlee argues because the evidence supported an absolute defense—self defense—the court erred in not granting his motion for acquittal. “ ‘If a person reasonably believes that force is necessary to protect himself or another person from what he reasonably believes to be unlawful physical harm about to be inflicted by another and uses such force, then he acted in self defense or defense of another person.’ ” United States v. Milk, 447 F.3d 593, 598 (8th Cir.2006) (quoting district court jury instructions); see also United States v. Tunley, 664 F.3d 1260, 1262 n. 3 (8th Cir.2012) (noting that, because self-defense is not codified by federal statute, courts generally rely on the common-law definition of self defense). “Although a federal defendant bears the burden of production on the issue of self-defense, once that burden is met, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense.” Milk, 447 F.3d at 598.

Farlee's theory at trial was Eaton was waiting in Oakie's trailer, and when Farlee came inside Eaton attacked him. Thus, Farlee acted in self defense. However, having reviewed the record, we find the Government presented substantial evidence negating this self-defense argument, and the jury reasonably could have credited this evidence. The jury has the ultimate task of determining the facts and assessing the credibility of the witnesses. United States v. Gaona–Lopez, 408 F.3d 500, 505–06 (8th Cir.2005). Oakie testified Farlee was drunk and had been acting in a jealous manner that night. She also testified that, once she saw Eaton inside the trailer, she did not unlock the front door for Farlee because she “thought [Farlee] was going to come in and beat [Eaton] up.” She then testified that, after Farlee broke the window to the front door and let himselfinside, he yelled at Eaton and was angry and upset. The location of blood inside the trailer supports Oakie's testimony that the encounter occurred near the back of the trailer rather than near the front door through which Farlee entered, contrary to Farlee's assertion that Eaton attacked him as he entered. Finally, Farlee's treating Emergency Room physician testified Farlee was belligerent and “appeared to be quite intoxicated.” Although Farlee presented evidence, including his own testimony, in support of his self-defense theory, a jury could reasonably have rejected Farlee's testimony and concluded beyond a reasonable doubt, based on the other evidence, he did not act in self defense.

B. Jury Instructions

Farlee next contends the trial court abused its discretion in its instructions to the jury by (1) failing to instruct on defense of property, (2) failing to instruct on the lesser-included offense of assault by striking, beating, and wounding, and (3) erroneously instructing on the law of self defense.

i. Defense of Property Jury Instruction

Farlee argues the district court erred in failing to give his proposed jury instructions on defense of property. “We generally review a district court's refusal to provide a requested instruction for abuse of discretion.” United States v. Davis, 237 F.3d 942, 945 (8th Cir.2001). “[A] party is entitled to an instruction on its theory of the case so long as it is legally correct and there is factual evidence to support it.” Thornton v. First State Bank of Joplin, 4 F.3d 650, 652 (8th Cir.1993); see also Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir.2008). The instruction Farlee requested was derived from South Dakota law, which, in certain circumstances, permits persons to use force or violence to protect property. Farlee contends the Assimilative Crimes Act, 18 U.S.C. § 13, requires that the federal court borrow state law jury instructions where crimes allegedly occur on federal enclaves such as Indian reservations. See Lewis v. United States, 523 U.S. 155, 160, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998). However, it is unnecessary for us to determine whether a defense of property instruction is authorized because such an instruction is not warranted by the evidence.

South Dakota's defense of property statute allows any person to use force or violence against another

when the person reasonably believes that such conduct is necessary to prevent or terminate the other person's trespass on or other criminal interference with real property or personal property lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal right to protect.

S.D. Codified Laws § 22–18–4. Farlee was in Oakie's trailer when the altercation occurred. The trailer was not in Farlee's possession, nor were Oakie and Farlee in the same family or household to justify his defense of property. Therefore, because the facts of this...