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 2010-06

United States v. Watty ( 2010 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW STEPHEN WATTY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00012-LHT-DLH-5)
Submitted:   May 24, 2010                 Decided:   June 16, 2010
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Fredilyn Sison, Matthew
R. Segal, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant.       Edward R. Ryan,
Acting United States Attorney, Charlotte, North Carolina, Don D.
Gast,  Assistant   United  States   Attorney,  Asheville,  North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After       a     jury        trial,      Matthew          Stephen       Watty       was
convicted of one count of assault resulting in serious bodily
injury and aiding and abetting such assault, in violation of
    18 U.S.C. §§ 113
    (a)(6), 1153, 2 (2006).                                Watty claims on appeal
that the district court abused its discretion in denying his
motion       that    the       jury    be     instructed         on    the       lesser       included
offense of assault by striking, beating, or wounding.
    18 U.S.C. § 113
    (a)(4).         Finding no error, we affirm.
We “review a district court’s decision whether to give
a     jury    instruction         for       abuse       of    discretion.”              See     United
States v.       Kennedy,
    372 F.3d 686
    ,         698     (4th       Cir.   2004).        A
defendant      is    not       automatically            entitled       to    a     lesser-included
offense      instruction.              See    United         States    v.     Wright,
    131 F.3d 1111
    , 1112 (4th Cir. 1997).                    Rather, the trial court should give
the     instruction        only        if     “the       proof       of      the    element        that
differentiates         the      two     offenses        [is]        sufficiently        in     dispute
that the jury could rationally find the defendant guilty of the
lesser offense but not guilty of the greater offense.”
    Id.
    (internal quotation marks omitted).
The   elements          necessary         for    a     conviction        on     assault
resulting in bodily injury are “(1) an intentional assault that
(2) results in serious bodily injury, committed (3) by an Indian
and (4) within Indian Country.”                          United States v. Littlewind,
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    595 F.3d 876
    ,       884   (8th    Cir.    2010)       (internal       quotation    marks
omitted).       A serious injury is one that involves a substantial
risk of death, extreme physical pain, protracted and obvious
disfigurement or protracted loss or impairment of the function
of    a   bodily        member,      organ    or     mental       faculty.
    18 U.S.C. § 113
    (b)(2);
    18 U.S.C. § 1365
    (h)(3) (2006).
Simple assault is a lesser included offense of assault
causing serious bodily injury.                     The differentiating element is
that one requires a specific degree of injury.                             In either case,
assault is a general intent crime.                        A specific intent to cause
harm is not necessary.                See United States v. Calbat,
    266 F.3d 358
    , 363 (5th Cir. 2001).                    All that is required is that the
defendant assaulted the victim and, in the case of
    18 U.S.C. § 113
    (a)(6),        evidence         that    the     assault       resulted     in    serious
bodily injury.             United States v. Davis,
    237 F.3d 942
    , 944-45
(8th Cir. 2001); United States v. Benally,
    146 F.3d 1232
    , 1237-
38    (10th   Cir.       1998).       Aiding       and    abetting       requires    evidence
showing       the       defendant      had     the       intent     to     facilitate    the
commission of the offense, in this case, assault.                               See United
States v. Burgos,
    94 F.3d 849
    , 873-74 (4th Cir. 1996).
We        find   the     district          court    did     not   abuse     its
discretion         in     denying     the     motion       for     the     lesser-included
instruction of simple assault.                     The element that differentiates
the two offenses was not sufficiently in dispute and, at the
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very least, Watty was culpable as an aider and abettor to the
attack, which resulted in the victim receiving serious bodily
injuries.    See United States v. Felix,
    996 F.2d 203
     (8th Cir.
1993).   We find the cases Watty cites for the proposition that
he was engaged in a separate and unique assault to be clearly
distinguishable.       We also find Watty’s argument concerning the
use of the rule of lenity in this context to be without merit.
Accordingly,      we   affirm   the   conviction   and   sentence.
We   dispense   with   oral    argument     because   the   facts    and   legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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