United States v. Johnnie Lee Bowman

720 F.2d 1103, 1983 U.S. App. LEXIS 15086, 14 Fed. R. Serv. 952

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 1983
• Docket: 82-1461
• Status: Published

Opinions

TANG, Circuit Judge.

Johnnie Lee Bowman, Jr. was indicted for assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. §§ 1153 (1976) and 113(c)(1948). The jury returned a verdict of guilty upon the lesser included offense of assault by striking, beating or wounding in violation of 18 U.S.C. § 113(d) (1948), a misdemean- or. Bowman contends on appeal that the district court committed reversible error by allowing evidence of a prior assault conviction and by refusing to give certain jury instructions relating to unconsciousness and self-defense. We find no error and affirm the conviction.

The record shows that on August 13, 1981, Bowman arrived at the home of Lena Descheenie, where he observed his estranged common-law wife, Yvonne Des-cheenie. The government maintained that Yvonne Descheenie was in an outhouse and that Bowman forced his way into the outhouse and pulled her out, threatening to take her hostage. According to the government’s theory, Bowman put a knife to Yvonne’s throat when she resisted and began to cry for help. Bowman’s explanation at trial was that Yvonne started to scream upon seeing him approach and that he merely put his arms around her in an attempt to calm her.

In either event, Yvonne’s grandmother, mother and sister came running to her rescue. In the ensuing melee, Yvonne was able to free herself, suffering only minor injuries, while Bowman was severely beaten by other members of the Descheenie family. At his trial, Bowman attempted to prove that he had acted in self-defense and was rendered unconscious after being hit in the head by one of Yvonne’s relatives.

Less than a year before, Bowman had injured Bennie Claw, another relative of Yvonne Descheenie. Bowman had been searching for Yvonne at the Claw residence when he struck Mr. Claw several times in the head with a rifle. Bowman was convicted of assault and sentenced to six months in prison. He had been released only two months before the incident at the Descheenie residence.

The admission by the district court of the evidence relating to this prior assault conviction was not an abuse of discretion. Evidence of prior crimes is admissible whenever relevant to an issue other than the defendant’s criminal propensity. Fed. R.Evid. 404(b); United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir.1982). It was the government’s contention that Bowman attacked Yvonne because of his belief that she was responsible for his earlier conviction, thus characterizing the assault on Yvonne as an act of revenge. Although the victim in the prior case was not involved here, there was a sufficient factual relationship between the two incidents to render the prior conviction relevant to the issue of Bowman’s motive for the assault upon Yvonne. The potential for unfair prejudice in this instance was clearly outweighed by the probative value of the evidence.

Neither are we persuaded that the district court’s decision not to give the requested instructions on unconsciousness and self-defense was reversible error. It is well established that a defendant is not entitled to a jury instruction on a defense theory unless there is some evidence before the jury to support it. United States v. Collom, 614 F.2d 624, 632 (9th Cir.1979), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980). It requires more than a mere plea or speculation that if anything occurred it must have occurred while unconscious or in self defense. The record discloses no evidence to provide a factual foundation for either unconsciousness or self defense. A review of the evidence on self defense or unconsciousness requires no assessment of the credibility of any witness at trial. There is no testimony that defendant was alleged to do anything after loss of consciousness. Further, defendant’s theory of self defense is unsupportable absent the admission of any defensive actions taken by him in fear of his safety. Thus, the district court properly denied defendant’s requested jury instructions on self defense and unconsciousness. The record is simply devoid of any evidence suggesting that Bowman acted in self-defense or was unconscious prior to the time he is alleged to have grabbed and assaulted Yvonne.

The conviction is AFFIRMED.