United States v. Raymond E. Otter Robe ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2263
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Raymond Otter Robe, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 12, 2009
Filed: June 29, 2009
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Before LOKEN, Chief Judge, BYE, Circuit Judge, and MILLER, District Judge.1
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MILLER, District Judge.
Raymond Otter Robe was indicted on one count of assault with a dangerous
weapon with intent to do bodily harm, in violation of 18 U.S.C. §§ 1153 and
113(a)(3), and one count of assault resulting in serious bodily injury, in violation of
18 U.S.C. §§ 1153 and 113(a)(6). It was stipulated that Otter Robe was an Indian and
the location where the alleged incident occurred was in Indian Country. Otter Robe
1
The Honorable Brian Stacy Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
was convicted by a jury on both counts. Although the district judge2 denied Otter
Robe’s motion for acquittal as to Count I, he granted the motion as to Count II
because “the evidence was insufficient as to the element of serious bodily injury.”
The district judge entered a judgment of conviction on Count II as to the lesser
included offense of assault by striking, beating, or wounding, in violation of 18 U.S.C.
§§ 1153 and 113(a)(4). Otter Robe was sentenced to 77 months’ imprisonment on
Count I, six months’ imprisonment on Count II to run concurrently, three years of
supervised release, and a special assessment in the amount of $110. On appeal, Otter
Robe challenges the sufficiency of the evidence supporting his conviction on Count
I. We affirm.
I.
On February 19, 2007, Otter Robe left the apartment of Allen Derockbrain’s
father, Joe Flying Horse, after arguing with and threatening Derockbrain with two
knives, taken from Flying Horse’s dish rack. Otter Robe went to Myron Oka’s home.
He went upstairs, spoke briefly with Lyle Oka, Myron’s nephew, and used the
telephone.
Myron testified that Otter Robe came back downstairs and began yelling at him,
so he asked Otter Robe to leave. Otter Robe began swinging at him and hit him in
the face a couple of times. Myron jumped backwards, but tripped and fell on his butt
and back. Otter Robe fell, but got back up, and as they began fighting again, Myron
tripped over a chair. As he was pushing himself up with his hands, Myron felt a hard
blow to his head and blood came down. When he looked up, he saw Otter Robe with
a knife in his hand. Otter Robe then ran from the house.
2
The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
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Lyle testified that Otter Robe came upstairs where he was and took two knives
out of a backpack and showed the two knives to him. Otter Robe then slid the knives
up his sleeves. After Otter Robe had gone back downstairs, Lyle heard a commotion
downstairs. He went downstairs and found Myron holding his head, which was
bleeding.
Otter Robe denied having two knives or a backpack. He testified that the fight
began when Myron swung a cast iron frying pan at him, hitting him in the finger.
Otter Robe stated that he then held Myron down, but left when Myron called for Lyle
to bring a gun. Myron testified that he did not have a frying pan or other weapon in
his hand, and Lyle testified that Myron never asked him to get a gun and there was not
a gun in the house.
Officer Doug Wilkinson arrived at Myron’s house shortly after Otter Robe had
left and he observed Myron bleeding. Wilkinson spoke with Myron and Lyle about
the incident and then went to Flying Horse’s apartment to talk to Otter Robe. When
Wilkinson arrived at Flying Horse’s home, Otter Robe ran out the door, and back to
Myron’s home. Otter Robe was detained by April Archambault, Myron’s daughter,
until Wilkinson arrived and arrested him. Wilkinson recovered two knives from
Derockbrain, who testified that when Otter Robe came back to Flying Horse’s
apartment, he threw the knives into the window well outside of the apartment.
William Burkhard, a physician’s assistant, testified that Myron’s injury was
more consistent with a knife than blunt force trauma. Teresa Olsen, a physician’s
assistant, testified that Otter Robe had an injury on his finger that was not likely
caused by a frying pan.
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II.
There is sufficient evidence supporting Otter Robe’s conviction. “We review
the sufficiency of the evidence supporting a conviction in the light most favorable to
the Government and draw all reasonable inferences in favor of the jury’s verdict.”
United States v. Lohnes, 554 F.3d 1166, 1168 (8th Cir. 2009) (quoting United States
v. Hollow Horn, 523 F.3d 882, 890 (8th Cir. 2008). “Reversal is only appropriate ‘if
we conclude that no reasonable jury could have found the accused guilty beyond a
reasonable doubt.’” Id. at 1168-69. In reviewing the sufficiency of the evidence, “we
must not weigh the evidence or assess the credibility of the witnesses.” United States
v. Raplinger, 555 F.3d 687, 693 (8th Cir. 2009). “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.” United States v. Milk, 447 F.3d 593, 598 (8th Cir. 2006).
Otter Robe asserts that there was insufficient evidence supporting his conviction
on Count I. He also asserts that there was insufficient evidences rebutting his
argument that he was acting in self-defense. In support of his arguments, Otter Robe
points out that there is evidence in the record contradicting Lyle’s testimony that Otter
Robe was carrying a backpack. He also points to his own testimony that Myron
attacked him first and that self-defense was therefore justified. He also notes that the
evidence indicates that Myron’s injuries could have been caused by blunt force
trauma, and that there were no fingerprints and no identified blood on the knives. He
argues that the forensic evidence does not connect the knives to any particular
individual, and that if he fought with Myron Oka with knives up his sleeves, he would
have been injured by the knives.
Here, the jury clearly credited the testimony of Myron, Lyle, Wilkinson,
Derockbrain, Olson, and Burkhard over that of Otter Robe. When all reasonable
inferences are drawn in favor of the jury’s verdict, there is no question that a
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reasonable jury could find Otter Robe guilty of Count I beyond a reasonable doubt.
Therefore, the evidence was sufficient to support Otter Robe’s conviction as to Count
I, including a finding that Otter Robe was not acting in self-defense.
The judgment of conviction is affirmed.
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