Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

MEMORANDUM^* 

Defendant Gilbert Judson Blacksmith, a Sioux Indian, appeals his jury conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(f) and 1153(a). We affirm.

At a residential party on the Fort Hall Indian Reservation in Eastern Idaho, a fight broke out between Blacksmith and Barney Dixey, during which Dixey felt himself stabbed repeatedly with a knife.

18 U.S.C. § 1153(a) gives federal courts exclusive jurisdiction over the offense for which Blacksmith is charged, provided it occurred "within the Indian country." The trial court heard testimony from two witnesses that the fight took place on the Fort Hall Indian Reservation. Blacksmith offered no evidence to refute their assertions. We hold that the witnesses' testimony constituted sufficient evidence to support federal court jurisdiction.

II. SUFFICIENCY OF EVIDENCE FOR THE CONVICTION

Any Indian who commits an "assault resulting in serious bodily injury" violates 18 U.S.C. § 1153(a). Neither that section nor Sec. 113(f) defines "serious bodily injury." Therefore, Idaho's definition controls. See 18 U.S.C. § 1153(b). Idaho has no statutory definition, but the Idaho Supreme Court has long considered "serious bodily injury" a phrase "of ordinary significance ... well understood by any jury" and requiring no instruction of clarification. State v. McKeehan, 430 P.2d 886, 893 (1967).

Viewing the evidence in the light most favorable to the government, and assuming that the jury resolved all questions of witness credibility, evidentiary conflicts, and factual inferences in a manner that supports the verdict, see U.S. v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987), we hold that Blacksmith was guilty beyond a reasonable doubt of assault resulting in serious bodily injury. Dixey's upper lip was lacerated with a deep, jagged cut; one of his neck wounds penetrated the skin by nearly an inch; his rib cage was punctured; the left arm wounds required suturing; and his back wound was one inch long and one inch deep. Further, Dr. Patterson, the physician who treated Dixey, rendered his expert opinion that the wounds were "serious in their location, and their depth, and in their potential for great bodily harm...." We conclude that by "potential for great bodily harm," Dr. Patterson meant potential for greater harm than resulted.

The trial court excluded as hearsay a defense witness' testimony that Dixey likely heard someone state that Blacksmith had an injured neck. Blacksmith asserts that the proposed testimony was relevant to his claim of self defense.

" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Prior to the hearsay ruling, the jury heard expert testimony that Blacksmith's neck was injured. We therefore accept Blacksmith's argument that the proposed testimony was offered to prove not the existence of the injury but rather Dixey's awareness of it.

Nevertheless, we hold that the trial court's exclusion of the proposed testimony was harmless. It is undisputed that Blacksmith swung at Dixey first. This initial use of force made Blacksmith the aggressor. It is also undisputed that Dixey responded to Blacksmith's jab in kind. Dixey's use of force was, therefore, not excessive, even though it knocked Blacksmith to the ground. There was no evidence that Dixey continued to assault Blacksmith, once Blacksmith fell. At that point, therefore, Blacksmith did not face an immediate threat of death or serious bodily harm. Thus, although a victim's awareness of his assailant's particular physical vulnerability might in some cases be of consequence to the assailant's theory of self defense, that theory was unavailable to Blacksmith on the evidence presented at trial, see W. LaFave and A. Scott, Criminal Law Sec. 53, 391 (1972); and the proposed testimony was irrelevant to the determination of the action. See Fed.R.Evid. 401.

On appeal, Blacksmith objects to the trial court's admission and the jury's viewing of photographs of Dixey's wounds taken at the time of hospitalization, on the ground of unfair prejudice in violation of FRE 403. At trial, however, Blacksmith's specific objection was grounded on lack of foundation. Apparently, Blacksmith asks this court either to excuse his mistake at trial or to treat his specific objection at trial as a general objection on appeal for which the excludable ground of undue prejudice was "apparent from the context." Fed.R.Evid. 103(a) (1).

Even allowing for Blacksmith's failure to object on unfair prejudice groune grounds, we find no plain error here. The severity of Dixey's wounds was a significant element of the charge; and there were perhaps no better indications of severity at the time of the incident than the photographs. As such, the photographs were highly probative and outweighed any prejudice they might have aroused among jurors.

V. JURY INSTRUCTION ON "SERIOUS BODILY INJURY"

Blacksmith alleges reversible error in the trial court's refusal to instruct the jury on what constitutes serious bodily injury under Secs. 113(f) and 1153(a). As already stated, the trial court was under no obligation to instruct the jury on the meaning of this ordinary phrase. The refusal was, therefore, within the court's discretion.

Because the claim of self defense was unavailable to Blacksmith, see discussion supra, the trial court's refusal to issue an instruction on self defense was proper.

AFFIRMED.