                       UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                        No. 00-3175

 BEATRIX McKINNEY,

          Defendant - Appellant.


                                         ORDER
                                   Filed July 23, 2001


Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
JONES, Senior Circuit Judge. *


      In order to correct a clerical error we recall our mandate issued on July 12,

2001. The order and judgment filed on June 20, 2001 is amended to include

Judge Nathaniel R. Jones’s dissent    . The amended order and judgment shall be

filed as of the date of this order.

                                               Entered for the Court
                                               PATRICK FISHER, Clerk of Court

                                                  By:
                                                         Keith Nelson
                                                         Deputy Clerk


      *
        The Honorable Nathaniel R. Jones, Senior Circuit Judge, U.S. Court of
Appeals, Sixth Circuit, sitting by designation.
                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUL 23 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 00-3175
 v.
                                                     (00-CR-40009-SAC)
                                                      (District of Kansas)
 BEATRIX McKINNEY,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
JONES, Senior Circuit Judge. **


      Beatrix McKinney was charged in a one count information filed in the

United States District Court for the District of Kansas with assaulting Joyce

Straight within a federal military installation at Fort Riley, Kansas, in violation of

18 U.S.C. §113(a)(5). She pled not guilty to the charge and was tried by a

United States Magistrate Judge (“magistrate”) who found her guilty of the charge


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        Honorable Nathaniel R. Jones, Senior Circuit Judge, U.S. Court of
Appeals, Sixth Circuit, sitting by designation.
and sentenced her to one year probation with a special condition that she attend

and complete a mental health program specifically directed toward anger

management. McKinney appealed to the district court, which affirmed the

magistrate’s judgment. 18 U.S.C. § 3402. She now appeals her conviction and

sentence to this court. We affirm.

      This case arose out of an altercation occurring at the horse stables located

on the Fort Riley Military Installation at Fort Riley, Kansas. Both McKinney and

Straight board horses there. The two argued over numerous matters, in the

course of which McKinney called Straight a liar, and culminated when, according

to Straight, McKinney told Straight “I’ll kill you, you f*** bitch.” Thereafter,

according to Straight, McKinney returned to the vehicle she was driving and

Straight returned to her automobile. McKinney drove off and Straight reported

the incident, first to 911, and then to the base MPs.

      Straight testified, in effect, that she feared that McKinney, after returning

to her vehicle, might “ram” her or her vehicle by driving into the Straight

vehicle. Straight based her fear of such, in part, on a prior altercation she had

with McKinney. Straight testified that on the prior occasion, after an argument

between the two, McKinney drove her vehicle directly at a vehicle in which she

and her husband were seated in an “aggressive manner” at an accelerating speed

and skidded to a stop about 3 feet away from the Straight vehicle. Specifically,


                                         -2-
in this connection, Straight testified as follows:


             TC 1: Had you had an opportunity to see the defendant drive
      before?
             W1: Yes. One occasion my husband and I were sitting in our
      truck and she was upset about something, and I can’t recall what it
      was, but she had a truck, a friend’s truck at that time, and she drove
      at us very aggressively, very threateningly. I wasn’t even sure she
      was going to stop before she plowed into our vehicle. And, yes, I
      had, I had concern that she might ram me with her vehicle.
             TC: Okay. Did your fear continue after that immediate... at
      that moment?
             W1: I’m sorry?
             TC: Did your fear continue past that?
             W1: Yeah. I was shake – I was still shaking when the MPs
      arrived on the scene. I was, yes.
             TC: Okay. What–what did you do after that?
             W1: I–I had called 911 and they told me I’d reached Junction
      City, so they told me I had to call the MPs and the MPs advised me
      to wait there. My truck was locked and I had the phone in my hand,
      and so I waited for the MPs. I was in no shape to drive anyway.
             TC: Okay. Did your fear continue after that day?
             W1: It still continues. I–I would not want to meet her alone
      anywhere.

      At the hearing before the magistrate the only witnesses were Straight and

McKinney, the latter denying that she made any threat to kill Straight or that on a

prior occasion she had attempted to “ram” a vehicle in which Straight and her

husband were seated. The magistrate chose to give credence to Straight’s version

of events, which he, as the trier of fact, had the right to do. In finding McKinney

guilty of simple assault, the magistrate spoke as follows:


      1
          “TC” is trial counsel for the government and “W1” is Straight .

                                          -3-
      I have considered the evidence and the arguments and statements,
      Counsel, and I am prepared to rule. And from the evidence
      presented, Court finds the testimony of Joyce Straight to be credible.
      First, the Court finds that the defendant made a verbal threat to
      injure or kill Mrs. Straight. Next, the Government must show that
      the threat was coupled with the apparent ability to do so. Given that
      the defendant was in the area and approached her vehicle after
      making the threat, and given Ms. Straight’s testimony that the
      defendant had once drove at her aggressively once before, causing
      apprehension that the defendant would strike her, the defendant [sic]
      had reason to believe that the defendant had the present ability to
      injure her by coming after her in her vehicle, as she had done
      previously. Ms. Straight had reasonable belief to fear, or expect
      immediate bodily injury given defendant’s verbal threat and
      defendant’s prior threatening behavior while driving. The credibility
      of Ms. Straight is strengthened by the fact that her fear was such,
      that she hired an attorney and obtained a restraining order to keep
      the defendant away from her. The Court, therefore finds, beyond a
      reasonable doubt, that the defendant is guilty of simple assault as
      charged in the information.

      In affirming the judgment of the magistrate, the district court spoke, inter

alia, as follows:

      McKinney threatened to kill Straight and began walking towards her
      car. That fact, and the fact that Straight had seen McKinney drive
      threateningly at her in the past, gave Straight reasonable
      apprehension of immediate bodily harm. Straight’s apprehension of
      harm was further demonstrated when she called 911.

      In this court, McKinney raises two questions (1) whether simple assault

under 18 U.S.C. § 113(a)(5) requires some objective behavior by the accused, in

addition to a threat to kill, to support a finding of reasonable apprehension of

immediate bodily harm and (2) whether the evidence is sufficient to support a

conviction of simple assault as defined by 18 U.S.C. § 113(a)(5) and common

                                         -4-
law. The answer to both questions is “yes.”

      18 U.S.C. §113(a)(5) reads as follows:

      Assaults within maritime and territorial jurisdiction

       (a) Whoever, within the special maritime and territorial jurisdiction
      of the United States, is guilty of an assault shall be punished as
      follows:
      ....
              (5) Simple assault, by fine under this title or imprisonment for
      not more than six months, or both, or if the victim of the assault is
      an individual who has not attained the age of 16 years, by fine under
      this title or imprisonment for not more than 1 year, or both.

      18 U.S.C. §113(a)(5) does not itself define the term “simple assault.” We

addressed that problem in United States v. Calderon, 655 F.2d 1037, 1038 (10th

Cir. 1981) when, in connection with a charge of assault filed pursuant to 18

U.S.C. 351(e), we spoke as follows:

             Section 351(e) does not define the term “assault.” Faced with
      a similar lack of definition for “assault” in 18 U.S.C. §113(a), the
      court in United States v. Bell, 505 F.2d 539 (7th Cir. 1974), cert.
      denied, 420 U.S. 964, 95 S.Ct. 1357, 43 L.Ed.2d 442 (1975),
      recognized that “where a federal criminal statute uses a common-law
      term of established meaning without otherwise defining it, the
      general practice is to give that term its common-law meaning.”
      United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 399, 1
      L.Ed.2d 430 (1957). The court in Bell found that “there are two
      concepts of assault in criminal law, the first being an attempt to
      commit a battery [the exclusive concept urged by defendant here]
      and the second an act putting another in reasonable apprehension of
      bodily harm . . . . Most jurisdictions recognize both concepts of
      criminal assault.” 505 F.2d at 540. See United States v. Dupree, 544
      F.2d 1050, 1051-52 (9th Cir. 1976); R. Perkins, Criminal Law 114-
      22 (2d ed. 1969).

                                        -5-
             The trial court instructed the jury that

             [a]ny willful attempt to [sic] threat to inflict injury upon
             the person of another, when coupled with an apparent
             present ability to do so, or any intentional display of
             force such as would give the victim reason to fear or
             expect immediate bodily harm, constitutes an assault.

      Record, vol. 4, at 258. This instruction adequately informed the jury
      of the two concepts of criminal assault. Substantial evidence
      supports defendant’s conviction under either concept.

      In line with Calderon, in United States v. Gauvin, 173 F.3d 798, 802 (10th

Cir. 1999), we spoke as follows:

      Neither 18 U.S.C. § 111 nor 18 U.S.C. § 113 define assault.
      However, “where a federal criminal statute uses a common-law term
      of established meaning without otherwise defining it, the general
      practice is to give that term its common-law meaning.” United
      States v. Turley, 352 U.S. 401, 411, 77 S.Ct. 397, 1 L.Ed.2d 430
      (1957). Assault is traditionally defined as “an attempted battery” or
      as “placing another in reasonable apprehension of a battery.” See
      Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law,
       §7.16 (1986). This circuit adopted this definition when interpreting
      another federal assault statute. See U.S. v. Calderon, 655 F.2d 1037,
      103 (10th Cir. 1981).


      So, under Calderon and Gauvin, the charge against McKinney of so-called

“simple assault” embraced “two concepts”: (1) an attempted battery or (2) an act

by McKinney that put Straight “in reasonable apprehension of bodily harm.” The

parties to this appeal agree that ours is not a case of “attempted battery” and that

we are only concerned with the second “concept” i.e. an “act” by McKinney that

put Straight in “reasonable apprehension of bodily harm.”

                                          -6-
      Although McKinney denied threatening to kill Straight, the magistrate

chose to believe Straight’s testimony that McKinney did, in fact, threaten to kill

her. Both parties agree that the “threat to kill” is not in itself sufficient to

support a conviction under the second “concept” of “assault,” and that the facts

and circumstances must be such as to show that Straight’s subjective

apprehension of bodily harm was “reasonable. We hold that the record supports

the determination of the magistrate, affirmed by the district court, that Straight’s

apprehension of bodily harm was “reasonable.” 2 The fact, as found by both the

magistrate and the district court, that on a prior occasion arising out of a dispute

between the two McKinney had driven her car in the direction of a vehicle being

occupied by Straight and her husband in an “aggressive manner” at an

accelerating speed and skidded to a stop about 3 feet away from the Straight

vehicle, supports a finding that Straight had a reasonable apprehension that, in

returning to her vehicle after threatening to kill Straight, McKinney would do the

same thing she did on the prior occasion, namely drive her vehicle at the Straight

vehicle in an aggressive manner at an accelerating speed and that this time she

might not stop 3 feet short of ramming her vehicle.



      2
       In Lillie v. United States, 40 F.3d 1105, 1109 (10th Cir. 1994) we held
that a magistrate’s findings were “plausible” and therefore not clearly erroneous
and that where “there are two permissible views of the evidence the fact finder’s
choice between them cannot be clearly erroneous.”

                                           -7-
Judgment affirmed.

                           Entered for the Court



                           Robert H. McWilliams
                           Senior Circuit Judge




                     -8-
No. 00-3175, United States v. McKinney

Nathaniel R. Jones, Circuit Judge, dissenting.

      I agree with the majority’s holding that the government must prove that the

accused engaged in some objective behavior that placed the victim in reasonable

apprehension of immediate bodily harm in order to support a conviction for

simple assault. However, I do not agree with its conclusion that the government

has met this burden in the instant case.

      At trial, the government introduced evidence that Beatrix McKinney (“Mrs.

McKinney” or “McKinney”) and Joyce Straight (“Mrs. Straight” or “Straight”)

engaged in a lengthy argument at the Ft. Riley Stables on June 11, 1999. At the

conclusion of the argument, Mrs. McKinney went to put grain in her horse’s bin,

and Mrs. Straight walked toward her car. While McKinney was attending to her

horse, she said “Nothing better happen to my horse” and Straight said “Same with

mine.” As Straight got into her car, McKinney started toward her own car. On her

way there, she allegedly threatened Straight saying, “I’ll kill you, you fucking

bitch.” Record, vol. 1, at 12. 1 Mrs. McKinney did not make any threatening

gestures or give any other indication that she intended to physically harm Mrs.

Straight. She simply walked to her car, got in, and drove away in the opposite


      1
        At that point, she was approximately 50 feet from Mrs. Straight. On
cross examination, Mrs. Straight was asked where Mrs. McKinney was when she
threatened her. She replied that the distance was approximately the same as the
distance from where she was sitting to the opposite wall of the courtroom.
Record, vol. 1, at 22. This distance was estimated at 50 feet. Id at 26.
direction.

      Despite these facts, Mrs. Straight testified that she feared that Mrs.

McKinney would ram her with her car because Mrs. McKinney had come close to

hitting her car on a previous occasion. As proof of Mrs. Straight’s fear, the

government introduced evidence that Straight called 911 and refused to get out of

her car until the police arrived. In addition, Straight subsequently hired an

attorney and obtained a restraining order to keep the defendant away from her.

      While this evidence clearly supports a finding that Mrs. Straight was scared

of Mrs. McKinney, a showing of fear is not sufficient to support a conviction for

simple assault. As the majority opinion correctly notes, the government must

show that Mrs. McKinney engaged in objective behavior which placed Mrs.

Straight in “reasonable apprehension of immediate bodily harm.” Maj. Op. at 4-6

(citing United States v. Calderon, 655 F.2d 1037, 1038 (10th Cir. 1981)

(emphasis added)). In this case, the government has not met that burden. It is

undisputed that when Mrs. McKinney allegedly uttered her threat she was walking

toward her car and that Mrs. Straight was already in her car. Given these

circumstances it is clear that Mrs. McKinney did not pose a threat of immediate

harm to Mrs. Straight. If Mrs. Straight believed that Mrs. McKinney was walking

toward her car with the intent of ramming her, she could have easily evaded this

threat by driving away.


                                         -2-
      Although the majority notes that a defendant cannot be convicted solely for

threatening to kill someone, it appears that is exactly what has happened. After

allegedly threatening Mrs. Straight, Mrs. McKinney walked to her car and drove

away. This was an act of withdrawal, and not a menacing move. However, while

it is clear that McKinney’s exit was intended to put an end to an unpleasant

episode, her retreat has been manipulated to support a conviction for simple

assault. 2 I cannot support this result. Accordingly, I respectfully dissent.




      2
        One way to avoid this baffling result in the future would be to heed the
commentators’ admonition that the crime of criminal assault includes “an actual
intention to cause apprehension.” See W. L A F AVE & A S COTT , C RIMINAL L AW §
7.16, at 316 (1986)(One cannot “commit a criminal assault by negligently or even
recklessly or illegally acting in such a way (as with a gun or a car) as to cause
another person to become apprehensive of being struck. There must be an actual
intention to cause apprehension . . . .”)(citing M ODEL P ENAL C ODE § 211.1, cmt.
at 177-78 (1980)(defining simple assault as “an intentional subjection of another
to reasonable apprehension of receiving a battery”)(emphasis added).

                                         -3-
