NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30123
Plaintiff-Appellee, D.C. No. 6:16-cr-00081-MC-1 v.
MARCELLUS LESLIE SMITH, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-30124
Plaintiff-Appellee, D.C. No. 6:11-cr-60050-MC-1 v.
MARCELLUS LESLIE SMITH,
Appeals from the United States District Court for the District of Oregon Michael J. McShane, Judge, Presiding
Argued March 7, 2019; Resubmitted June 26, 2019 Portland, Oregon
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District Judge.
Defendant Marcellus Leslie Smith is a convicted bank robber whose
supervised release was revoked on the grounds that he committed a felony assault,
possessed a weapon, and used alcohol. Smith appeals the district court’s finding
that he committed any assault, felonious or otherwise, and argues that his due
process rights were violated. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
Felony Assault
We review for abuse of discretion the district court’s decision to revoke
supervised release. United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir.
2003). We review the district court’s factual findings in revoking supervised
release for clear error. United States v. Lomayaoma, 86 F.3d 142, 146 (9th Cir.
1996). We review de novo whether the district court had sufficient evidence to
support its findings. United States v. Weber, 320 F.3d 1047, 1050 (9th Cir. 2003).
We review an appeal premised on insufficiency of the evidence by asking whether
any rational trier of fact, viewing the evidence in the light most favorable to the
government, “could have found the essential elements of a violation by a
preponderance of the evidence.” United States v. King, 608 F.3d 1122, 1129 (9th
** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
2 18-30123 & 18-30124 Cir. 2010) (quoting United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir.
2007)).
Oregon’s statute for misdemeanor assault states that “[a] person commits the
crime of assault in the fourth degree if the person . . . [i]ntentionally, knowingly or
recklessly causes physical injury to another.” Or. Rev. Stat. § 163.160(1)(a). A
misdemeanor assault becomes a felony if the “[t]he assault is committed in the
immediate presence of, or is witnessed by, . . . the victim’s minor child.” Id.
§ 163.160(3)(a). The statute further provides that “an assault is witnessed [by the
child] if the assault is seen or directly perceived in any other manner by the child.”
Id. § 163.160(4).
“[A] child ‘directly perceives’ an assault if the child contemporaneously is
aware through any of the child’s senses that an assault is occurring—i.e., that one
person is causing injury to another.” State v. Rader, 228 P.3d 552, 558 (Or. 2010)
(reversing the trial court where too many inferences were required to find that the
victim’s child, aged three, had perceived the assault). Furthermore, “[w]hen the
state contends that a child heard and thus directly perceived an assault, it is
sufficient to show that the child was aware that the sounds arose from assaultive
conduct. The child need not be aware of the details or the specifics of the assault.”
Id. “Reasonable inferences are permissible; speculation and guesswork are not,”
and “evidence is insufficient if it requires the stacking of inferences to the point of
3 18-30123 & 18-30124 speculation.” State v. Bivins, 83 P.3d 379, 383 (Or. Ct. App. 2004) (reversing the
trial court where too many inferences were required to find that the victim’s
children, aged five and three, had perceived the assault). “[T]he evidence must be
sufficient for the trier of fact to draw a reasonable inference not only that the child
could have heard the sounds arising from the assault but that the child also was
aware of those sounds and that they arose from assaultive conduct.” Rader, 228
P.3d at 560.
Here, the assault victim’s 16-year-old daughter, JC, is the perceptive minor.
JC was upstairs when the assault happened. Police responded to a domestic
violence call at the apartment complex where the victim lived with JC and her
siblings. When the officers arrived at the complex, they heard what sounded like
boards breaking and also raised voices; they approached the apartment from where
the sounds were emanating. The officers gained entry to the victim’s apartment
when JC opened the door after some delay.
The government introduced video footage captured by the bodycams of the
responding police. The videos showed the injuries of the victim (JC’s mother),
including a large swelling on her cheek, and the victim’s demeanor and responses
to officers’ questions; the state of the victim’s house, including significant damage
to the drywall and broken glass on the floor; JC’s demeanor and her responses to
an officer’s questions; and Smith’s demeanor and his responses to an officer’s
4 18-30123 & 18-30124 questions.
Although JC stayed upstairs with her younger siblings, and she turned up the
volume on the television, given that the loud crashes and bangs prompted a
neighbor to believe that a fight was happening and that police assistance was
needed, it was reasonable for the district court to infer that (i) JC could have heard
the sounds of her mother being assaulted; (ii) JC heard the sounds; and (iii) JC
understood what was causing the sounds. Indeed, the fact that JC turned up the
volume on the television suggests that she heard the assault and acted because of it.
Thus, a rational trier of fact had sufficient evidence, when viewing the facts in the
light most favorable to the government, to find by a preponderance of the evidence
that Smith assaulted JC’s mother and that JC perceived the assault.
Due Process
Whether a defendant has received due process at a violation of supervised
release hearing is a mixed question of law and fact to be reviewed de novo. United
States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008). We conduct harmless error
analysis. Id.
Smith argues that the admission of hearsay evidence violated his due process
rights to confront adverse witnesses at a violation of supervised release hearing.
Before reaching the issue of harmless error, we must first determine whether the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30123
Plaintiff-Appellee, D.C. No. 6:16-cr-00081-MC-1 v.
MARCELLUS LESLIE SMITH, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-30124
Plaintiff-Appellee, D.C. No. 6:11-cr-60050-MC-1 v.
MARCELLUS LESLIE SMITH,
Appeals from the United States District Court for the District of Oregon Michael J. McShane, Judge, Presiding
Argued March 7, 2019; Resubmitted June 26, 2019 Portland, Oregon
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District Judge.
Defendant Marcellus Leslie Smith is a convicted bank robber whose
supervised release was revoked on the grounds that he committed a felony assault,
possessed a weapon, and used alcohol. Smith appeals the district court’s finding
that he committed any assault, felonious or otherwise, and argues that his due
process rights were violated. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
Felony Assault
We review for abuse of discretion the district court’s decision to revoke
supervised release. United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir.
2003). We review the district court’s factual findings in revoking supervised
release for clear error. United States v. Lomayaoma, 86 F.3d 142, 146 (9th Cir.
1996). We review de novo whether the district court had sufficient evidence to
support its findings. United States v. Weber, 320 F.3d 1047, 1050 (9th Cir. 2003).
We review an appeal premised on insufficiency of the evidence by asking whether
any rational trier of fact, viewing the evidence in the light most favorable to the
government, “could have found the essential elements of a violation by a
preponderance of the evidence.” United States v. King, 608 F.3d 1122, 1129 (9th
** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
2 18-30123 & 18-30124 Cir. 2010) (quoting United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir.
2007)).
Oregon’s statute for misdemeanor assault states that “[a] person commits the
crime of assault in the fourth degree if the person . . . [i]ntentionally, knowingly or
recklessly causes physical injury to another.” Or. Rev. Stat. § 163.160(1)(a). A
misdemeanor assault becomes a felony if the “[t]he assault is committed in the
immediate presence of, or is witnessed by, . . . the victim’s minor child.” Id.
§ 163.160(3)(a). The statute further provides that “an assault is witnessed [by the
child] if the assault is seen or directly perceived in any other manner by the child.”
Id. § 163.160(4).
“[A] child ‘directly perceives’ an assault if the child contemporaneously is
aware through any of the child’s senses that an assault is occurring—i.e., that one
person is causing injury to another.” State v. Rader, 228 P.3d 552, 558 (Or. 2010)
(reversing the trial court where too many inferences were required to find that the
victim’s child, aged three, had perceived the assault). Furthermore, “[w]hen the
state contends that a child heard and thus directly perceived an assault, it is
sufficient to show that the child was aware that the sounds arose from assaultive
conduct. The child need not be aware of the details or the specifics of the assault.”
Id. “Reasonable inferences are permissible; speculation and guesswork are not,”
and “evidence is insufficient if it requires the stacking of inferences to the point of
3 18-30123 & 18-30124 speculation.” State v. Bivins, 83 P.3d 379, 383 (Or. Ct. App. 2004) (reversing the
trial court where too many inferences were required to find that the victim’s
children, aged five and three, had perceived the assault). “[T]he evidence must be
sufficient for the trier of fact to draw a reasonable inference not only that the child
could have heard the sounds arising from the assault but that the child also was
aware of those sounds and that they arose from assaultive conduct.” Rader, 228
P.3d at 560.
Here, the assault victim’s 16-year-old daughter, JC, is the perceptive minor.
JC was upstairs when the assault happened. Police responded to a domestic
violence call at the apartment complex where the victim lived with JC and her
siblings. When the officers arrived at the complex, they heard what sounded like
boards breaking and also raised voices; they approached the apartment from where
the sounds were emanating. The officers gained entry to the victim’s apartment
when JC opened the door after some delay.
The government introduced video footage captured by the bodycams of the
responding police. The videos showed the injuries of the victim (JC’s mother),
including a large swelling on her cheek, and the victim’s demeanor and responses
to officers’ questions; the state of the victim’s house, including significant damage
to the drywall and broken glass on the floor; JC’s demeanor and her responses to
an officer’s questions; and Smith’s demeanor and his responses to an officer’s
4 18-30123 & 18-30124 questions.
Although JC stayed upstairs with her younger siblings, and she turned up the
volume on the television, given that the loud crashes and bangs prompted a
neighbor to believe that a fight was happening and that police assistance was
needed, it was reasonable for the district court to infer that (i) JC could have heard
the sounds of her mother being assaulted; (ii) JC heard the sounds; and (iii) JC
understood what was causing the sounds. Indeed, the fact that JC turned up the
volume on the television suggests that she heard the assault and acted because of it.
Thus, a rational trier of fact had sufficient evidence, when viewing the facts in the
light most favorable to the government, to find by a preponderance of the evidence
that Smith assaulted JC’s mother and that JC perceived the assault.
Due Process
Whether a defendant has received due process at a violation of supervised
release hearing is a mixed question of law and fact to be reviewed de novo. United
States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008). We conduct harmless error
analysis. Id.
Smith argues that the admission of hearsay evidence violated his due process
rights to confront adverse witnesses at a violation of supervised release hearing.
Before reaching the issue of harmless error, we must first determine whether the
district court relied on the hearsay evidence at issue. See, e.g., United States v.
5 18-30123 & 18-30124 Comito, 177 F.3d 1166, 1169-73 (9th Cir. 1999) (conducting harmless error
analysis after finding that the challenged hearsay evidence was “important to the
court’s finding”).
The district court gave a full and clear explanation as to how its decision was
reached. The court’s factual findings were essentially a condensed version of the
events captured by the video, highlighting key aspects of what was shown. The
court also explained that the statements of Smith and the victim were not credible.
The court made no mention of the challenged hearsay evidence. Because there is
no reason to presume that the court relied on or even considered the hearsay
evidence as part of its factual findings, there cannot be a due process violation.
AFFIRMED.
6 18-30123 & 18-30124 FILED United States v. Smith, Nos. 18-30123, 18-30124 JUL 22 2019 BERZON, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I concur in the memorandum disposition except for the felony
assault holding. In my view, JC, the victim’s daughter and the
perceptive minor in the case, could not have “directly perceive[d]” the
assault. Or. Rev. Stat. §163.160(4).
As the majority recites, “a child ‘directly perceives’ an assault
if the child contemporaneously is aware through any of the child’s
senses that an assault is occurring—i.e., that one person is causing
injury to another.” State v. Rader, 228 P.3d 552, 558 (Or. 2010). Here,
according to what JC told the police, after hearing the beginning of a
loud argument, JC went into an upstairs room, closed the door, and
turned the television volume up—all so that she and the victim’s three
other young children would not be able to hear what was going on
below. To support its conclusion that there was nonetheless sufficient
evidence to conclude that JC heard the assault (as opposed to the
earlier verbal argument), the majority points only to evidence that a
neighbor was able to hear the sounds of the altercation from outside
the apartment. But there is no indication that the neighbor had a sound
impediment that interfered with hearing what was going on in the downstairs part of JC’s house. In contrast, JC was upstairs, behind a
closed door, listening to a television purposely turned up loud enough
to obscure sounds from downstairs. Given these circumstances, what
the neighbor heard is no evidence at all that JC was
“contemporaneously aware through any of [her] senses” that there
was a physical assault going on.
As there is no other evidence of JC’s contemporaneous visual
or oral perception of the assault, there was insufficient evidence for
the district court to revoke Smith’s supervised release because he had
committed felony assault under Oregon law. See United States v.
King, 608 F.3d 1122, 1129 (9th Cir. 2010).