              Case: 13-11469     Date Filed: 06/23/2014   Page: 1 of 6


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-11469
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 2:12-cr-00063-MEF-TFM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

MARCUS DUPREE HURRY,

                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________

                                  (June 23, 2014)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:

      Marcus Dupree Hurry appeals his conviction for forcibly assaulting a federal

officer while the officer was engaged in the performance of his official duties, in
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violation of 18 U.S.C. § 111(b). On appeal, Hurry argues that his conviction

should be reversed because the government did not establish sufficient facts for a

reasonable jury to find beyond a reasonable doubt that Hurry forcibly assaulted a

federal officer using a deadly or dangerous weapon while the officer was engaged

in the performance of his official duties. Hurry further argues that his conviction

should be reversed because the district court erred in refusing to give his requested

jury instruction on the lesser-included offense of forcibly assaulting a federal

officer without using a deadly or dangerous weapon, in violation of 18 U.S.C.

§ 111(a)(1).

      We address each of Hurry’s arguments in turn.

                                          I.

      When a defendant preserves a challenge to the sufficiency of the

government’s evidence by moving for a judgment of acquittal, we review the

sufficiency of the evidence de novo. United States v. Jiminez, 564 F.3d 1280, 1284

(11th Cir. 2009). We determine whether the evidence was sufficient for a

reasonable jury to conclude that the defendant was guilty beyond a reasonable

doubt. United States v. Gupta, 463 F.3d 1182, 1193-94 (11th Cir. 2006). We view

all evidence in the light most favorable to the government, resolving any conflicts

in favor of its case. United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010).

Whether the evidence was direct or circumstantial, we will accept all reasonable


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inferences that tend to support the government’s case. United States v. Williams,

390 F.3d 1319, 1324 (11th Cir. 2004).

      We have held that the determination of a witness’s credibility is the

exclusive province of the jury. United States v. Calderon, 127 F.3d 1314, 1325

(11th Cir. 1997), modified on other grounds, United States v. Toler, 144 F.3d 1423,

1427 (11th Cir. 1998). We will not review determinations made by the jury as to

the credibility of witness testimony unless such testimony is “incredible as a matter

of law.” Id. (quotations omitted). Testimony is incredible as a matter of law only

when it is “unbelievable on its face” and relates to “facts that the witness

physically could not have possibly observed or events that could not have occurred

under the laws of nature.” Id. (quotations omitted). Otherwise, we uphold the

jury’s analysis and assume it made all credibility choices in support of the verdict.

Jiminez, 564 F.3d at 1285.

      To support a conviction for forcibly assaulting a federal officer using a

deadly or dangerous weapon while the officer was engaged in the performance of

his official duties in violation of 18 U.S.C. § 111(b), the government must prove

beyond a reasonable doubt that (1) the defendant committed any acts described in

§ 111(a), and (2) in so doing the defendant used a deadly or dangerous weapon.

United States v. Siler, 734 F.3d 1290, 1296 (11th Cir. 2013). To prove that the

defendant committed an act described in § 111(a), the government must establish


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that the defendant forcibly assaulted, resisted, opposed, impeded, intimidated, or

interfered with an officer or employee of the United States while engaged in or on

account of the performance of official duties. See 18 U.S.C. § 111(a); 18 U.S.C. §

1114. To prove “forcible assault,” the government must establish a “willful threat

or attempt to inflict bodily injury upon the person of another[,] coupled with an

apparent present ability to do so, . . . such as would give the victim reason to fear

or expect immediate bodily harm.” United States v. Fallen, 256 F.3d 1082, 1087

(11th Cir. 2001) (quotations omitted). Proof of physical contact is not required.

Id. Furthermore, proof that the defendant knew at the time that the victim was a

federal officer carrying out an official duty is not required. United States v.

Ettinger, 344 F.3d 1149, 1154-55 (11th Cir. 2003). The government must also

prove that the defendant used a deadly or dangerous weapon, which may include

“a weapon intended to cause death or danger but that fails to do so by reason of a

defective component.” 18 U.S.C. § 111(b).

      Viewing the evidence de novo, because Hurry moved for a judgment of

acquittal at the proper times during trial, a reasonable jury could conclude that

Hurry forcibly assaulted a federal officer using a deadly or dangerous weapon

while the officer was engaged in the performance of his official duties. Gupta, 463

F.3d at 1193-94. The evidence showed that Hurry reversed his car and sped down

a hill at a high speed directly towards Deputy John C. Hamilton, a federal officer


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assisting the Monroe County, Alabama, Sheriff’s Department in locating and

apprehending a fugitive. Hurry continued speeding down the hill, despite the

flashing emergency lights and sirens on Deputy Hamilton’s vehicle and Deputy

Hamilton’s verbal orders to stop. Deputy Hamilton, who testified that he felt that

he was in danger of being crushed by Hurry’s 4,000-pound car, jumped out of the

car’s path, but nevertheless felt the side mirror of Hurry’s car brush his arm.

Hurry’s car then struck Deputy Hamilton’s vehicle, causing substantial damage to

the body of the vehicle and blowing out the front passenger window.

      Based on this evidence, a reasonable jury could find that Hurry used his car

in a deadly or dangerous manner to deliberately threaten or attempt to inflict bodily

injuries on Deputy Hamilton, and that, under the totality of the circumstances,

Deputy Hamilton was reasonably afraid of being run over. Accordingly, we affirm

Hurry’s conviction.

                                          II.

      We review the district court’s refusal to give a defendant’s requested jury

instruction for an abuse of discretion. United States v. Eckhardt, 466 F.3d 938,

947 (11th Cir. 2006). Under this standard, we will only reverse if there is

“substantial and eradicable doubt as to whether the jury was properly guided in its

deliberations.” Id. at 948 (quotations omitted). An abuse of discretion may occur

where the evidence would permit a rational jury to acquit the defendant of the


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greater, charged offense and to convict him of the lesser-included offense. United

States v. Williams, 197 F.3d 1091, 1095 (11th Cir. 1999).

      The district court did not abuse its discretion in denying Hurry’s requested

jury instruction on the lesser-included offense of forcibly assaulting a federal

officer without using a deadly or dangerous weapon, in violation of 18 U.S.C.

§ 111(a)(1). Based on the evidence presented at trial, a rational jury could not have

convicted Hurry of forcibly assaulting Deputy Hamilton without using a deadly or

dangerous weapon. Accordingly, we affirm Hurry’s conviction.

      AFFIRMED.




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