Unpublished Disposition, 863 F.2d 887 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 887 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Stewart Paul NEZ, Defendant-Appellant.

No. 88-1093.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 14, 1988.Decided Dec. 1, 1988.

Before GOODWIN, Chief Judge, SNEED and HUG, Circuit Judges.


Nez claims that there is insufficient evidence to support the jury's finding of guilt on Count II, assault resulting in serious bodily injury, 18 U.S.C. §§ 2, 113(f), 1153(a). We must determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty of the elements of the crime beyond a reasonable doubt. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987).

Even under Nez's version of the facts there is more than sufficient evidence that Nez aided and abetted the assault resulting in serious bodily injury. After consuming large amounts of alcohol Nez and Amos Paul attacked an elderly man together. Both of them struck him while he was standing, and Nez reached into his pocket and took his keys as Paul choked him. The entire sequence of events constituted one assault, with the purpose stated by Paul as they approached the victim: to beat him up and take his keys. Nez does not contest that the victim suffered serious bodily injury.

We require some proof that Nez associated himself with the aggravating element of the offense--assault resulting in serious bodily injury. The evidence shows that Nez acted with at least reckless disregard for the victim, when the natural, though not inevitable, result of the assault was serious bodily injury. The government need not show that Nez specifically intended serious bodily injury. Reckless disregard is sufficient. Cf. Tison v. Arizona, 107 S. Ct. 1676 (1987).

Of course, the jury may have rejected Nez's version of events and instead accepted that presented by Paul and the victim at trial.

Nez's other two arguments lack merit. Nez cannot challenge the indictment following a jury verdict of guilty. United States v. Mechanik, 475 U.S. 66, 67 (1986). Even were he able to raise such a challenge, the substance of his claim is foreclosed by Costello v. United States, 350 U.S. 359 (1956).

Lastly, the District Court correctly excluded Defense Exhibit 16. This exhibit was a portion of the grand jury transcript. We decline the opportunity to expand the hearsay exception of Rule 803(8) (C), Fed.R.Evid., to cover grand jury testimony. Nez incorrectly characterizes Defense Exhibit 16 as a "police report." The fact that the grand jury witness was reading from an FBI report does not transmute that testimony into a police report or other public record within Rule 803(8) (C).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3