US v. Matthew Watty

Filing 920100616

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 18 U.S.C.

offense of assault by striking, beating, or wounding. § 113(a)(4). Finding no error, we affirm.

We "review a district court's decision whether to give a jury instruction Kennedy, is not for 372 abuse F.3d of discretion." 698 (4th to v. a Cir. See United A

States v. defendant offense

686,

2004).

automatically See

entitled States

lesser-included 131 F.3d

instruction.

United

Wright,

1111, 1112 (4th Cir. 1997). the instruction only two if

Rather, the trial court should give "the proof [is] of the element in that

differentiates

the

offenses

sufficiently

dispute

that the jury could rationally find the defendant guilty of the lesser offense but not guilty of the greater offense." (internal quotation marks omitted). The elements necessary for a conviction on assault Id.

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." 2 United States v. Littlewind,

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 In either case,

that one requires a specific degree of injury. assault is a general intent crime. harm is not necessary.

A specific intent to cause

See United States v. Calbat, 266 F.3d All that is required is that the

358, 363 (5th Cir. 2001).

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, 123738 (10th Cir. the 1998). defendant Aiding had and the abetting intent to requires evidence the

showing

facilitate

commission of the offense, in this case, assault. States v. Burgos, 94 F.3d 849, 873-74 (4th Cir. 1996). We discretion in find the district the court for did the not

See United

abuse

its

denying

motion

lesser-included

instruction of simple assault.

The element that differentiates

the two offenses was not sufficiently in dispute and, at the 3

very least, Watty was culpable as an aider and abettor to the attack, which resulted in the victim receiving serious bodily injuries. 1993). See United States v. Felix, 996 F.2d 203 (8th Cir.

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 dispense with oral we affirm the conviction the and sentence. and legal

argument

because

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

4