US v. Matthew Watty, No. 08-5244 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5244 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MATTHEW STEPHEN WATTY, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 offense of assault by striking, beating, or wounding. § 113(a)(4). included 18 U.S.C. Finding no error, we affirm. We review a district court s decision whether to give a jury instruction States v. Kennedy, defendant is offense not for 372 abuse F.3d instruction. instruction differentiates 686, automatically See 1111, 1112 (4th Cir. 1997). the of only the two if discretion. See 698 2004). (4th entitled United Cir. to States a v. Wright, United A lesser-included 131 F.3d Rather, the trial court should give the offenses proof [is] of the element sufficiently in that dispute that the jury could rationally find the defendant guilty of the lesser offense but not guilty of the greater offense. Id. (internal quotation marks omitted). The elements necessary for a conviction on assault 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, omitted). 884 (8th Cir. 2010) (internal quotation marks 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 that one requires a specific degree of injury. assault is a general intent crime. harm is not necessary. In either case, A specific intent to cause See United States v. Calbat, 266 F.3d 358, 363 (5th Cir. 2001). All that is required is that the defendant assaulted the victim and, in the case of 18 U.S.C. § 113(a)(6), evidence bodily injury. that the assault resulted in serious United States v. Davis, 237 F.3d 942, 944-45 (8th Cir. 2001); United States v. Benally, 146 F.3d 1232, 123738 (10th showing Cir. the 1998). defendant Aiding had and the abetting intent requires to evidence facilitate commission of the offense, in this case, assault. the See United States v. Burgos, 94 F.3d 849, 873-74 (4th Cir. 1996). We discretion find in the denying district the court motion instruction of simple assault. for did the not abuse its lesser-included 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 argument the conviction because the and facts sentence. and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4