United States v. Taylor, Tracee ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2608
United States of America,
Plaintiff-Appellee,
v.
Tracee L. Taylor,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 97 CR 167--Rudy Lozano, Judge.
Argued May 9, 2000--Decided August 21, 2000
Before Manion, Kanne and Rovner, Circuit Judges.
Kanne, Circuit Judge. Tracee Taylor joined two
confederates in a vicious carjacking during which
the trio trapped a pregnant woman in her car,
shot her in the chest and stole the automobile.
Taylor was convicted of committing a carjacking
in violation of 18 U.S.C. sec. 2119, and aiding
and abetting the use of a weapon in connection
with a violent felony in violation of 18 U.S.C.
sec. 924(c). He appeals on three grounds, all of
which we reject.
I. History
During the morning of December 8, 1997, Lakesha
Wade was driving to pick her son up from school
in Gary, Indiana. Wade, who was four months
pregnant, noticed a blue 1995 Mitsubishi Mirage
tailing closely behind her 1986 Pontiac
Parisienne. At first, Wade thought nothing of it,
but she became alarmed when the Mitsubishi
continued to pursue her through a number of
turns. Wade accelerated to escape her pursuer,
but the Mitsubishi raced faster in pace. Wade
panicked, running a red light, almost hitting
another car and driving indecisively all over
Gary while trying to decide where to go. She
eventually raced to her sister’s residence and
skidded to a halt in the front yard. Wade jammed
her car horn, hoping that someone would come to
the door and let her in the house, but no one
answered. Her sister Lasonia Williams was home
but asleep upstairs. Moments later, the
Mitsubishi sped into the driveway and blocked
Wade’s exit.
Kevin Wilson leapt out of the Mitsubishi
menacingly wielding a .38-caliber handgun. He
screamed, "Bitch, bitch, get out of the car. Get
out of the car, bitch. I ain’t playing with you,
bitch. Get out of the car or I’ll kill you,
bitch." Wilson ran at Wade, who was still sitting
in her car, and shot her through the car door
window. The bullet tore through Wade’s upper left
arm and struck her left breast. Wilson then
opened the driver-side door, pulled Wade from the
car and sat down in the driver’s seat. Wade ran
to her sister’s door, but Williams, now awake
from the mayhem outside, feared for herself and
refused to open the door. Wilson soon noticed
Williams watching him from inside the house and
fired three or four shots at her as she escaped
upstairs. Wade ran and hid inside a postal truck
parked nearby.
Defendant Tracee Taylor remained inside the
Mitsubishi this entire time. The Mitsubishi had
been stolen from Taylor’s neighbor the day
before, and Taylor, Wilson and Patrick Lucas used
it to chase down Wade. At this point, Wilson
could not get Wade’s Pontiac started so he and
Lucas pushed it into the street. Taylor slipped
into the driver’s seat of the Mitsubishi and
drove it down the street pushing the Pontiac
along. After the threesome departed and the
police arrived, Wade was receiving emergency
medical treatment from paramedics when she
noticed the Mitsubishi returning to the scene of
the crime. Aided by Wade’s tip, Gary police
officer Luis Donald soon spotted the Mitsubishi
and chased it until it spun out of a sharp turn
and crashed into a car parked along the curb. The
three men inside the Mitsubishi sprinted off in
different directions, but Donald tackled Wilson
and other police captured Taylor in the vicinity.
A key ring, which Taylor’s sister identified as
belonging to Taylor, was found in the Mitsubishi
and held keys matching the locks to Taylor’s
home. The Federal Bureau of Investigation later
discovered that Wade’s Pontiac, stolen by Taylor,
Wilson and Lucas during the carjacking, was
originally manufactured in Fairfax, Kansas.
A federal grand jury promptly issued a two-
count indictment charging Taylor with violating
the federal carjacking statute and aiding and
abetting Wilson’s use of a firearm during a crime
of violence. On August 14, 1998, after a four-day
trial, the jury convicted Taylor on both counts
of the indictment.
II. Analysis
Taylor raises three claims on appeal: (1)
Taylor challenges the sufficiency of the evidence
to establish that he intended to aid and abet
Wilson’s use of a firearm in violation of 18
U.S.C. sec. 924(c); (2) Taylor argues that the
federal carjacking statute, 18 U.S.C. sec. 2119,
exceeds Congress’s constitutional authority under
the Commerce Clause; (3) Taylor argues the
district court’s omission of a jury instruction
on "serious bodily injury" for his carjacking
conviction was plain error.
A. Sufficiency of the Evidence for 18 U.S.C.
sec. 924(c)
The jury found Taylor guilty of violating 18
U.S.C. sec. 924(c) by virtue of his assistance to
Wilson’s use of a firearm during the carjacking,
but Taylor challenges the sufficiency of the
evidence to establish that he knew beforehand of
Wilson’s intent to use a firearm. Typically, we
review the sufficiency of the evidence in the
light most favorable to the government and
reverse only if the record is devoid of evidence
from which the jury could reach a finding of
guilt. See United States v. Johnson-Nix, 54 F.3d
1295, 1302 (7th Cir. 1995); United States v.
Rosalez-Cortez, 19 F.3d 1210, 1215 (7th Cir.
1994). However, our review here requires an even
higher showing from Taylor because he failed to
renew his motion for acquittal at the close of
all evidence or within seven days of the verdict
under Fed. R. Crim. P. 29. See United States v.
Hickok, 77 F.3d 992, 1002 (7th Cir. 1996)
(citations omitted). As a result, "under well-
established precedent in this circuit, [the
defendant] has waived an appellate challenge to
the sufficiency of the evidence and may obtain a
reversal only if he demonstrates ’a manifest
miscarriage of justice.’" Id.To convict for aiding and abetting under 18
U.S.C. sec. 924(c), the jury must find that the
defendant knowingly and intentionally assisted
the principal’s use of a dangerous weapon in a
violent felony. See United States v. Woods, 148
F.3d 843, 848 (7th Cir. 1998). This requires
finding that (1) the defendant knew, either
before or during the crime, of the principal’s
weapon possession or use; and (2) the defendant
intentionally facilitated that weapon possession
or use once so informed. See id. However,
"[m]erely aiding the underlying crime and knowing
that a gun would be used or carried cannot
support a conviction under 18 U.S.C. sec.
924(c)." Id.; see also United States v.
Bancalari, 110 F.3d 1425, 1430 (9th Cir. 1997);
United States v. Medina, 32 F.3d 40, 45 (2d Cir.
1994). Instead, "the defendant must aid and abet
the use or carrying of the firearm." Woods, 148
F.3d at 848.
In this case, the government introduced no
direct evidence showing that Taylor knew in
advance that Wilson would use a firearm to commit
the carjacking. In contrast to the evidence
presented in United States v. Woods, 148 F.3d
843, there was no testimony that Taylor asked
Wilson before the crime whether Wilson had his
gun, then watched Wilson load the gun and bring
it with him. However, a reasonable jury could
infer from the inherently violent character of
carjackings that Taylor either anticipated or
knew that Wilson was going to use a weapon.
Moreover, during the extended pursuit of Wade,
Taylor rode along in the Mitsubishi with Wilson,
who was carrying his handgun this entire time,
and the jury could reasonably infer that Taylor
noticed or learned during the ride that Wilson
possessed a weapon.
Even if Taylor did not discover Wilson’s
planned use of the weapon by this point, Taylor
must have so understood once Taylor and his
cohorts had trapped their victim at her sister’s
residence. There, Wilson charged out of Taylor’s
car wildly brandishing his weapon, shot Wade in
the arm and fired three or four shots into the
house. Taylor remained just yards away from
Wilson this entire time and cannot credibly claim
to have missed Wilson’s use of a firearm during
the carjacking. See, e.g., Haugh v. Booker, 210
F.3d 1147, 1151 (10th Cir. 2000) (inferring
knowledge based on the defendant’s presence
during his confederate’s use of a firearm). If
Wilson was physically distant or otherwise
removed from Taylor’s vantage at the time Wilson
brandished and used the firearm, we could not
automatically presume Taylor’s observation and
actual knowledge of weapon use. See United States
v. Spinney, 65 F.3d 231, 239 (1st Cir. 1995);
United States v. Dinkane, 17 F.3d 1192, 1197 (9th
Cir. 1994). Such was not the case here; Taylor
was present on the scene within yards of Wilson
when Wilson shot Wade from close range and
discharged several shots into the residence.
At this point, after learning of Wilson’s
firearm use and while the commission of the
carjacking was still ongoing, Taylor continued to
participate in the carjacking and facilitated
Wilson’s escape. Taylor backed the Mitsubishi out
of the front yard and used it to push Wade’s
Pontiac down the road, thus knowingly aiding
Wilson’s escape from a violent felony in which
Wilson used a firearm. Taylor’s acts of
assistance are more than sufficient to meet the
facilitation element, which "once knowledge on
the part of the aider and abettor is established,
. . . does not take much to satisfy." Woods, 148
F.3d at 848 (quoting United States v. Bennett, 75
F.3d 40, 45 (1st Cir. 1996)). Less has met the
requirement of facilitation in the past. For
example, in United States v. Price, 76 F.3d 526,
530 (3d Cir. 1996), the Third Circuit found that
the defendant had knowingly facilitated the use
of a firearm when he continued to collect money
from cash drawers during a bank robbery after the
principal had threatened bank employees with a
gun. See also Bazemore v. United States, 138 F.3d
947, 949-50 (11th Cir. 1998) (finding
facilitation when the defendant drove the
principal to the scene of the crime); United
States v. Morrow, 977 F.2d 222, 231 (6th Cir.
1992) (finding no miscarriage of justice when the
defendant received the protection of his
confederate’s weapon). Taylor likewise continued
to assist Wilson by facilitating Wilson’s escape
after it was clear that Wilson had used a firearm
in the commission of the carjacking.
Manifest miscarriage of justice is perhaps the
most demanding standard of appellate review. We
will reverse "’only if the record is devoid of
evidence pointing to guilt, or if the evidence on
a key element of the offense was so tenuous that
a conviction would be shocking.’" United States
v. McKinney, 143 F.3d 325, 330 (7th Cir. 1998)
(quoting United States v. Wright, 63 F.3d 1067,
1072 (11th Cir. 1995)). We cannot say that the
record is devoid of evidence pointing to guilt or
that the evidence is so tenuous that it shocks
the conscience. No manifest miscarriage of
justice resulted from Taylor’s conviction.
B. 18 U.S.C. sec. 2119 and the Commerce Clause
Taylor argues that 18 U.S.C. sec. 2119, the
federal carjacking statute under which he was
convicted, exceeds congressional authority under
the Commerce Clause. The Commerce Clause confers
upon Congress the power "[t]o regulate Commerce
with foreign Nations, and among the several
States." U.S. Const. Art. I, sec. 8, cl. 3. From
1937 to 1995, the Supreme Court consistently
upheld federal legislation against claims that
Congress had overstepped its authority under the
Commerce Clause. See Perez v. United States, 402
U.S. 146, 150 (1971); Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, 256 (1964);
Wickard v. Filburn, 317 U.S. 111, 128-29 (1942);
United States v. Darby, 312 U.S. 100, 118 (1941);
National Labor Relations Bd. v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 37 (1937). However, the
Court ended this fifty-eight-year quiescence with
United States v. Lopez, 514 U.S. 549 (1995).
Overturning the Gun-Free School Zones Act of
1990, 18 U.S.C. sec. 922(q)(1)(A), the Lopez
Court identified "three broad categories of
activity that Congress may regulate under its
commerce power": (1) "Congress may regulate the
use of the channels of interstate commerce"; (2)
"Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even
though the threat may come only from intrastate
activities"; (3) "Congress’ commerce authority
includes the power to regulate those activities
having substantial relation to interstate
commerce." Lopez, 514 U.S. at 558-59 (citation
omitted). The statute in Lopez criminalized the
knowing possession of a firearm in a school zone,
but did not contain a jurisdictional element that
linked the criminalized conduct to interstate
commerce or established any substantial
relationship to interstate commerce. 18 U.S.C.
sec. 922(q)(1)(A) (1988 & Supp. V). The Court
struck the statute as unconstitutional because it
"is a criminal statute that by its terms has
nothing to do with ’commerce’ or any sort of
economic enterprise." Id. at 561.
More recently, in United States v. Morrison,
___ U.S. ___, 120 S.Ct. 1740, 1759 (2000), the
Supreme Court invalidated sec. 40302 of the
Violence Against Women Act ("VAWA") (codified at
42 U.S.C. sec. 13981). The VAWA created civil
liability for the commission of a gender-based
violent crime, but without any jurisdictional
requirement of a connection to interstate
commerce or commercial activity. 42 U.S.C. sec.
19381(c). The Court explained that in both Lopez
and Morrison "the noneconomic, criminal nature of
the conduct at issue was central to our
decision." Id. at 1750. Furthermore, the Court
pointed out that in neither case was there an
"’express jurisdictional element which might
limit its reach [to those instances that] have an
explicit connection with or effect on interstate
commerce.’" Id. at 1751 (quoting Lopez, 514 U.S.
at 562). In both cases, Congress criminalized
activity that was not commercial in nature
without including a jurisdictional element
establishing the necessary connection between the
criminalized activity and interstate commerce.
Nine circuits since Lopez have achieved
remarkable unanimity in upholding 18 U.S.C. sec.
2119 under the Commerce Clause. See United States
v. Rivera-Figueroa, 149 F.3d 1, 3-4 (1st Cir.
1998); United States v. Cobb, 144 F.3d 319, 321-
22 (4th Cir. 1998); United States v. Romero, 122
F.3d 1334, 1339 (10th Cir. 1997); United States
v. Hicks, 103 F.3d 837, 848 (9th Cir. 1996);
United States v. McHenry, 97 F.3d 125, 126-29
(6th Cir. 1996); United States v. Coleman, 78
F.3d 154, 157-60 (5th Cir. 1996); United States
v. Hutchinson, 75 F.3d 626, 627 (11th Cir. 1996);
United States v. Bishop, 66 F.3d 569, 576-83 (3d
Cir. 1995); United States v. Robinson, 62 F.3d
234, 236-37 (8th Cir. 1995). These courts have
found the carjacking statute constitutional both
as a regulation justified by the substantial
effect of carjackings on interstate commerce,
see, e.g., Rivera-Figueroa, 149 F.3d at 3;
McHenry, 97 F.3d at 126-27; Bishop, 66 F.3d at
580, and as a regulation of instrumentalities of
interstate commerce. See, e.g., Cobb, 144 F.3d at
322; Bishop, 66 F.3d at 588-90. Without
discussing the latter conclusion, we find the
former argument particularly persuasive.
Carjacking bears a substantial relationship to
interstate commerce and poses a threat that
Congress was authorized to address under the
Commerce Clause. Congress enacted 18 U.S.C. sec.
2119 in response to the estimated $8 billion to
$9 billion annual loss to car theft, which
Congress deemed "a very large and lucrative
business" and "the nation’s number one property
crime problem." H. Rep. No. 102-851(I), at 14
(1992) (reprinted in 1992 U.S.C.C.A.N. 2829,
2830). Congress had a rational basis for
believing that sec. 2119 would help protect the
interstate businesses of automobile manufacturing
and sales by addressing the rising property and
insurance costs resulting directly from car theft
and carjackings. See id.; see also Bishop, 66
F.3d at 578-80. In addition, Congress struck at
the burgeoning interstate trade in stolen
vehicles and parts expropriated through car
thefts and carjackings--activity that is economic
and commercial in nature, albeit criminal as
well. See H.Rep. 102-85(I), at 14-15; see also
United States v. Thomas, 159 F.3d 296, 297-98
(7th Cir. 1998) (treating illegal drug sales as
interstate commerce under the jurisdictional
element of the Hobbs Act).
The carjacking statute was "an essential part
of a larger regulation of economic activity . .
. that arise[s] out of or [is] connected with a
commercial transaction which viewed in the
aggregate, substantially affects interstate
commerce." Lopez, 514 U.S. at 561. It was the
lead provision of the Anti Car Theft Act of 1992,
Pub. L. No. 102-519, comprehensive federal
legislation addressing the economic problem of
interstate automobile theft. See Bishop, 66 F.3d
at 580. In addition to attaching federal
sanctions for carjacking, the Anti Car Theft Act
accomplished the following: increased penalties
for importation and exportation of stolen
vehicles and for interstate transportation or
possession of such vehicles; criminalized the
operation of "chop shops" for dismantling stolen
vehicles; provided federal funds for the local
anti-car theft committees, ordered the creation
of a national task force on auto theft and fraud;
developed a national checking system for
detecting automobile title fraud; required
marking of automobile parts to combat the use of
stolen parts; required strict Custom Service
inspections to prevent exportation of stolen
vehicles. Unlike the statutes in Morrison and
Lopez, which targeted noneconomic violence, sec.
2119 is an integral part of a large-scale federal
regulatory effort to protect interstate commerce
and attack illegal commercial activity by
criminalizing the theft of goods involved in
interstate commerce.
Reinforcing this conclusion, sec. 2119 contains
a jurisdictional element, applying its reach only
to vehicles that have been "transported, shipped,
or received in interstate or foreign commerce."
As a result of the jurisdictional limitation,
sec. 2119 attaches federal penalties only to
thefts of vehicles that have traveled in the
stream of interstate commerce. Lopez recognized
that congressional inclusion of just such a
jurisdictional element (absent in Lopez itself)
"would ensure, through case-by-case inquiry, that
the [regulated conduct] in question affects
interstate commerce." Lopez, 514 U.S. at 561.
Explaining by contrast, the Court cited former 18
U.S.C. sec. 1202(a) as containing a
jurisdictional component that would protect that
statute from a Commerce Clause challenge. See
Lopez, 514 U.S. at 562. Similarly, in Morrison,
the Court noted that sec. 13981 of the VAWA
"contains no jurisdictional element establishing
that the federal cause of action in pursuance of
Congress’ power to regulate interstate commerce,"
but explained approvingly that the Courts of
Appeals have uniformly upheld a separate section
of the VAWA that contains a limiting
jurisdictional element. Morrison, 120 S.Ct. at
1751-52.
To convict under sec. 2119, the jurisdictional
element requires the government to prove that the
stolen vehicle had traveled in interstate
commerce at some time. The government showed that
the stolen Pontiac in this case was manufactured
in Kansas, sold across state lines and eventually
stolen in Indiana. As we explained in United
States v. Bell, 70 F.3d 495, 498 (7th Cir. 1995),
"the mere movement of [the object of regulation],
at some time, across state lines satisfied the
commerce element." Accordingly, we have held that
the inclusion of a jurisdictional element in 18
U.S.C. sec. 922(g)(1), which required that a
weapon must have traveled in interstate commerce
to be subject to the statute, was sufficient
under Lopez to satisfy the Commerce Clause, at
least when coupled with express congressional
findings showing that the regulated activity
substantially affected interstate commerce. See
Bell, 70 F.3d at 498; see also United States v.
Kenney, 91 F.3d 884, 886 (7th Cir. 1996).
Repeatedly since Lopez we have held that a
jurisdictional element ensures sufficient nexus
with interstate commerce to withstand Commerce
Clause challenges. See Gillespie v. City of
Indianapolis, 185 F.3d 693, 704-05 (7th Cir.
1999) (18 U.S.C. sec. 922(g)(9)); United States
v. Wilson, 159 F.3d 280, 285-87 (7th Cir. 1998)
(18 U.S.C. sec. 922(g)(8)); United States v.
Hardy, 120 F.3d 76, 77 (7th Cir. 1997) (18 U.S.C.
sec. 922(u)). The government’s showing that the
stolen Pontiac had traveled in interstate
commerce established the necessary nexus to
interstate commerce under the Commerce Clause.
C. Jury Instruction Omission for Serious
Bodily Injury
Count One of Taylor’s indictment alleges that
he violated subsection two of 18 U.S.C. sec.
2119, which reads in full:
Whoever, possessing a firearm as defined in
section 921 of this title, takes a motor vehicle
that has been transported, shipped, or received
in interstate or foreign commerce from the person
or presence of another by force and violence or
by intimidation, or attempts to do so, shall
(1) be fined under this title or imprisoned not
more than 15 years, or both,
(2) if serious bodily injury (as defined in
section 1365 of this title) results, be fined
under this title or imprisoned not more than 25
years, or both, and
(3) if death results, be fined under this title,
or imprisoned for any numbers of years up to
life, or both.
In Jones v. United States, 526 U.S. 227, 251
(1999), the Supreme Court held that 18 U.S.C.
sec. 2119(1)-(3) comprises "three separate
offenses by the specification of distinct
elements, each of which must be charged by
indictment, proven beyond a reasonable doubt, and
submitted to a jury for its verdict." Jones, 526
U.S. at 252. The Court explained further that
"serious bodily injury," as it appears in sec.
2119(2), represents an essential element, rather
than a sentencing enhancement, of the independent
offense defined by sec. 2119(2). See id. Taylor’s
indictment charged him under sec. 2119(2) as
required, but Taylor’s trial preceded Jones.
Without contemporaneous objection from Taylor,
the district court did not instruct the jury that
"serious bodily injury" is an element of the
carjacking offense. In light of Jones, however,
Taylor and the government now agree that the
district court erred by omitting a jury
instruction on serious bodily injury.
Taylor argues that the absence of an
instruction on serious bodily injury requires
reversal on appeal. Seeking to avoid the burden
of showing prejudice, Taylor claims that the
omission of a jury instruction on an essential
element of the charged offense is reversible per
se, regardless of prejudice. Yet we are
instructed otherwise by Neder v. United States,
527 U.S. 1, 8-9 (1999), and Johnson v. United
States, 520 U.S. 461, 466 (1997), both of which
hold that omission of an offense element is not
structural error that fundamentally infects the
trial process and necessitates automatic
reversal. See also California v. Roy, 519 U.S. 2,
5 (1996). Taylor’s failure to object at trial to
the incomplete jury instruction resulted in
forfeiture of his claim on appeal, and we again
review only for plain error. See United States v.
Benitez, 92 F.3d 528, 533 (7th Cir. 1996). Under
this standard, we affirm unless the error was not
only clear in retrospect but also caused a
miscarriage of justice, seriously affecting the
fairness, integrity or public reputation of the
proceeding. See United States v. Hughes, 213 F.3d
323, 328-29 (7th Cir. 2000).
"Serious bodily injury" is defined by the four
categories described in 18 U.S.C. sec.
1365(g)(3): "[a] bodily injury which involves (A)
a substantial risk of death; (B) extreme physical
pain; (C) protracted and obvious disfigurement;
or (D) protracted loss and impairment of a bodily
member, organ, or mental faculty." No prejudice,
and thus no plain error, occurred if the jury
would have found beyond a reasonable doubt that
Taylor’s victim suffered a bodily injury which
fits within any of these four categories. See
Neder, 527 U.S. at 8-9. In United States v.
Johnson-Dix, we interpreted the same terms at
issue here--"serious bodily injury" and "extreme
physical pain"--although in the sentencing
context under a different standard of review.
Johnson-Dix, 54 F.3d at 1312. Despite the absence
of trial testimony that the victim’s pain was
"extreme," we found the victim’s gunshot
injuries, which featured a fractured leg and
entry and exit wounds, constituted "serious
bodily injury" under U.S.S.G. sec. 2B3.2(b)(4)(B)
because the injuries inflicted "extreme physical
pain." Johnson-Dix, 54 F.3d at 1312. Although the
government presented little direct evidence on
the pain suffered by Taylor’s victim, Lakesha
Wade, it is clear here from the circumstances
that the jury would have found that she suffered
a bodily injury that involved "extreme physical
pain" under 18 U.S.C. sec. 1365(g)(3)(B).
Gunshot wounds, produced by a .38-caliber
bullet, fired at close range, that rips through
the victim’s arm and penetrates her breast,
constitute a serious bodily injury that produces
extreme physical pain. Here, the jury knew in
detail the tight proximity of Wilson to Wade when
he shot her, understood that the .38-caliber
bullet shattered Wade’s driver-side window and
tore through her arm into her chest and heard
that Wade was treated by paramedics and taken to
the hospital for treatment. In addition, the
government introduced into evidence color
photographs displaying Wade’s gunshot wounds just
hours after the carjacking. After asking Wade
about these pictures, the government asked
apologetically, "I know it sounds like a silly
question, but did you experience pain from this?"
She answered succinctly in the affirmative and
explained that her arm and breast were swollen
and "bruised up real bad." Wade did not testify
directly that she was in "extreme" pain in those
words (nor was she asked), but "[j]uries may use
common sense to evaluate the evidence and make
reasonable inferences from it." United States v.
Cunningham, 54 F.3d 295, 299 (7th Cir. 1995). A
rational jury would have found beyond a
reasonable doubt that the gunshot wounds of
Taylor’s victim constituted a serious bodily
injury that inflicted extreme physical pain. We
find that the omission of a jury instruction on
the issue was harmless under the circumstances.
III. Conclusion
For the foregoing reasons, we Affirm Taylor’s
convictions.