Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 1580 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Arthur Joe FLEMING, Defendant-Appellant.

No. 89-10237.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 1990.Decided May 18, 1990.

Appeal from the United States District Court for the Northern District of California; Fern M. Smith, District Judge, Presiding.

N.D. Cal.

AFFIRMED.

Before BOOCHEVER, WIGGINS and NOONAN, Circuit Judges.


MEMORANDUM* 

Defendant Fleming appeals his conviction of simple assault under 18 U.S.C. § 113(e) (1988), claiming that his actions constituted reasonable resistance to an unlawful detention. Because Fleming was detained legally, and in light of the evidence of Fleming's intent to injure, we affirm his conviction.

FACTS

The facts in this case, viewed in the light most favorable to the prosecution, United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir. 1987), are as follows. On August 24, 1989, United States military policeman Mike Howard (Specialist Howard) responded to a radio bulletin concerning a domestic dispute at the Presidio Army Base (Base). Howard noticed Fleming's brown Hyundai driving up and down the block in front of the Base. His suspicion aroused, Specialist Howard ran the car's license plate number through a police computer check. When Fleming's wife's name appeared on the registration, a name he apparently recognized from the domestic dispute bulletin, Specialist Howard radioed instructions to pull over the Hyundai.

Sergeant Robert Roy Kellogg (Sergeant Kellogg) responded to Howard's radio call and attempted to pull Fleming over. Fleming initially ignored Kellogg's flashing overhead lights, but eventually pulled over. Fleming then began questioning Kellogg as to the reason for his detention. Because he was only responding to a radio call to do so, Kellogg could not tell Fleming why he was pulled over.

Shortly thereafter, Sergeant Wince and Specialist Howard arrived. Fleming refused to cooperate with the officers, threatened to leave the scene, and jumped back in his vehicle. As Specialist Howard reached into Fleming's car attempting to shut off the engine and remove the keys, the car accelerated and moved approximately 12 feet with Howard partially inside the automobile. When the car came to a stop, Howard was thrown to the ground. Fleming claims that this incident did not constitute an assault on Specialist Howard, but instead was only reasonable resistance to an unlawful detention.

DISCUSSION

We first must determine whether the officers' detention of Fleming was merely an investigatory stop, see Terry v. Ohio, 392 U.S. 1 (1968), or amounted to an arrest. The purposes of a brief investigatory stop, or Terry stop, are to detain a suspect temporarily in order to obtain identification and briefly to question him. United States v. Beck, 598 F.2d 497, 500 (9th Cir. 1979). A Terry stop's duration only qualifies it as an arrest when it lasts longer than necessary to effectuate these purposes. Florida v. Royer, 460 U.S. 491, 500 (1983). Because Fleming's failure to cooperate and immediate insistence on leaving the scene prevented the officers from successfully conducting an investigation, the stop never ripened into an arrest. The short duration of Fleming's detention qualified it as a Terry stop.

A Terry stop is justified where there exists a reasonable suspicion based on articulable facts that the detainee has committed a crime. See United States v. Hensley, 469 U.S. 221, 226 (1985). The fact that Kellogg, the officer who originally pulled Fleming over, did not know why he stopped Fleming does not render the Terry stop illegal. In determining whether reasonable suspicion existed, " [w]e look to the collective knowledge of all the officers involved in the criminal investigation although all of the information known to the law enforcement officers involved in the investigation is not communicated to the officer who actually makes the stop." United States v. Sutton, 794 F.2d 1415, 1426 (9th Cir. 1986). While Kellogg did not know that there had been a domestic dispute involving Fleming, both the dispatcher and Specialist Howard did. We hold that a report of a domestic disturbance which names a suspect serves as an adequate basis for reasonable suspicion of criminal conduct on the part of the named individual. Therefore, the cumulative knowledge of all the officers involved satisfied the requisite standard of legality for a Terry stop. Id. Fleming's argument that he lawfully resisted an unlawful detention consequently fails.

In reviewing the sufficiency of the evidence of Fleming's conviction, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). We hold that a rational trier of fact could have concluded from the record that Fleming intended to injure Specialist Howard. While we, sitting as a trial court, might have reached a different conclusion, that is not the inquiry.

The evidence at trial, viewed in the light most favorable to the government, indicates that Fleming behaved in a hostile and obstreperous manner throughout his encounter with the officers. We cannot hold that no reasonable trier of fact could have concluded that Fleming intended to injure Howard.

"Simple assault 'is committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.' " United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir. 1980) (quoting United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976)). There is some confusion over which of two definitions of "willful" applies. The first definition is "a specifically bad purpose on the part of the actor." The second definition of "willful" would "simply require that the actor know what he is doing." Id. We need not decide whether the crime of simple assault requires general or specific intent, because the evidence on record is sufficient to convince a rational trier of fact of Fleming's guilt under the more demanding specific intent definition. Thus, a trier of fact could find beyond a reasonable doubt that Fleming specifically intended to injure Howard when, after making threats and with knowledge that the officer was partially in his car, he rapidly started forward and then abruptly stopped the vehicle.

Under a de novo review, we might have reached a different conclusion. Our duty as an appellate court, however, requires us only to ask whether, viewing the evidence in the light most favorable to the government, a trier of fact could rationally find beyond a reasonable doubt that Fleming intended to injure Specialist Howard. Because there was sufficient evidence for such a finding, we AFFIRM Fleming's conviction.

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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