                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2315
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Alexander James Oka

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                    for the District of South Dakota - Aberdeen
                                   ____________

                              Submitted: May 16, 2019
                               Filed: August 1, 2019
                                   [Unpublished]
                                   ____________

Before SMITH, Chief Judge, WOLLMAN and KOBES, Circuit Judges.
                             ____________

PER CURIAM.

       Alexander Oka appeals his convictions for domestic assault by a habitual
offender, in violation of 18 U.S.C. § 117, and for tampering with a witness or victim,
in violation of 18 U.S.C. § 1512(b)(1). Oka argues that the government failed to
present sufficient evidence at trial to meet the elements of either crime. We hold that
sufficient evidence exists from which a reasonable jury could find Oka guilty on both
counts. We therefore affirm the district court’s1 judgment.

                                  I. Background
       One night, Oka was at home with his girlfriend, Sundance Rose White Bull;
their infant child; and White Bull’s two older children. Oka awoke White Bull,
demanding that she feed their baby. White Bull began feeding the baby. Oka became
angry with White Bull after reading a “friend request” White Bull received on
Facebook from another man. Oka accused White Bull of cheating on him and kicked
her on the right side of her mid back. The kick knocked the wind out of her and
caused pain and bruising. Oka continuously yelled at and threatened White Bull
during the episode.

      White Bull retreated to the bathroom, where she locked the door and sent a text
message to her sister to call the police. She also asked her sister not to respond to her
text message and deleted the outgoing message out of fear that Oka would see the
message and get even angrier. Police arrived, interviewed White Bull, and then
removed her and the two older children from the house.2

       The police documented White Bull’s story and took photographs of the
abrasion on her back. Based on White Bull’s formal complaint, police arrested Oka
for assaulting White Bull.




      1
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.
      2
        White Bull and the officer decided to leave the infant at the house because the
infant was Oka’s biological child; the two older children were from White Bull’s
prior relationship and a source of Oka’s anger. After Oka was arrested, Rose returned
to the house to pick up the infant.

                                          -2-
      While in jail, Oka sent a letter to White Bull through a fellow inmate. The letter
was introduced at trial. It read:

      Dear Rose,

      I wanted to tell you that if you don’t write a statement saying you don’t
      want to press charges, or come and talk to the prosecutor and drop the
      charge on me, I’m going to get indicted. I pled not guilty. I’m going to
      trial. You better come and talk to the prosecutor. I’m not LYING!!! Or
      call [tribal defense attorney] Jim Cerney and tell him you’re not going
      to show up to my trial. I’ve got a preliminary hearing on August 31st at
      11:00. Don’t show up to that. That’s the only way I'll get out. I love you
      and I’m sorry. I miss you a lot, and I miss Baby [omitted]. ; I really
      need your help with this one. If you love me, you’ll do this for me. I
      forgive you. I’m going crazy in here!!! Sorry for arguing with you. Now
      I’m paying for it. I just want to get out and see you guys. You guys are
      my world. I’m happy with you two. I know I act crazy, but I truly love
      you. I stood by your side, never gave up on you. I just need you to do
      this for me Boo!! When you get $ buy me some minutes so I can call. I
      feel like it’s the end of the world! These days go by slow. I can’t stop
      thinking of you and my Baby. Come and get me out. It’ll be worth it I
      promise you. I’m on 3,000.00 bond. This is my life here. Please do this
      for me. Here’s the # to call to buy me some minutes [number omitted].
      My 5 digit pin # is [pin omitted]. Do this before the Feds come and pick
      me up!! I’m against the clock here. If you truly love me, you’ll do this
      for me. I’ll be waiting. Yours truly. Love Alex XOXOXO.

Appellee’s Addendum at 2.3 In the margin of the letter, Oka wrote, “I [expletive] up.
I’m sorry.” Id.




      3
      The letter has been edited to reflect correct spelling, grammar, and punctuation
without altering its substance.

                                          -3-
      A federal grand jury returned an indictment charging Oka with domestic assault
by a habitual offender, in violation of 18 U.S.C. § 117. Thereafter, a superseding
indictment was filed, adding an additional count against Oka for tampering with a
witness or victim, in violation of 18 U.S.C. § 1512(b)(1), based on the letter to White
Bull.

       Oka’s case proceeded to trial. At the conclusion of the evidence, Oka moved
for a judgment of acquittal on both counts, arguing that the government failed to
present sufficient evidence to convict him on either charge. The district court denied
the motion. The jury then returned guilty verdicts on both counts. The district court
sentenced Oka to 47 months’ imprisonment and three years’ supervised release.

                                    II. Discussion
       Oka appeals both convictions on the ground that the government failed to
present sufficient evidence to convict him. We review de novo challenges to the
sufficiency of the evidence. United States v. St. John, 716 F.3d 491, 493 (8th Cir.
2013) (per curiam). “Th[is] standard is very strict . . . .” United States v. Santana, 524
F.3d 851, 853 (8th Cir. 2008). We “will affirm the jury’s verdict if, taking all facts in
the light most favorable to the verdict, a reasonable juror could have found [Oka]
guilty of the charged conduct beyond a reasonable doubt.” St. John, 716 F.3d at 493
(internal quotation omitted). “On this review we do not weigh the evidence or assess
witness credibility because the jury has the sole responsibility to resolve conflicts or
contradictions in testimony.” Id. (internal quotation omitted).

      Oka first asserts that the government did not present sufficient evidence to
convict him for domestic assault by a habitual offender. Conceding the other
elements, Oka only contests whether the government proved that he “commit[ted] a
domestic assault.” 18 U.S.C. § 117(a).




                                           -4-
      The statute does not define “assault.” But, “[w]here 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.
Harlan, 815 F.3d 1100, 1106 (8th Cir. 2016) (quoting United States v. Turley, 352
U.S. 407, 411 (1957) (interpreting the same statute for its definition of assault)).

      Common law assault embraces two different crimes: (1) attempted
      battery, that is, an intended effort to cause bodily harm to another which
      falls short of success regardless of whether the intended victim knows
      of the attempt, and (2) any act which is intended to, and reasonably does,
      cause the victim to fear immediate bodily harm; such menacing
      constitutes assault even if no physical harm is attempted, achieved, or
      intended.

Id. (cleaned up).

      The district court’s jury instruction defined assault for the jury as follows:

      An “assault” as used in these instructions is (1) any intentional and
      voluntary attempt or threat to do injury to the person of another, when
      coupled with the apparent present ability to do so sufficient to put the
      person against whom the attempt is made in fear of immediate bodily
      harm or (2) any intentional or knowing harmful or offensive bodily
      touching or contact, however slight, without justification or excuse, with
      another’s person, regardless of whether physical harm is intended or
      inflicted or whether the victim has reasonable apprehension of bodily
      harm.

Final Jury Instrs., Instr. No. 7 at 8, United States v. Oka, No. 1:17-cr-10037-RAL
(D.S.D. Feb. 23, 2018), ECF No. 52.

      At trial, White Bull testified that Oka kicked her in the back with enough force
to knock the wind out of her, struck her on the head, threatened her, and made her

                                         -5-
afraid. White Bull’s sister corroborated White Bull’s testimony. The sister testified
about a text message she had received from White Bull in which White Bull “asked
[her sister] to call the police” and said that Oka was hurting White Bull. Trial Tr. at
68, United States v. Oka, No. 1:17-cr-10037-RAL (D.S.D. July 9, 2018), ECF No. 81.
The government also presented police photographs taken of the abrasion on White
Bull’s back. We conclude, based on these facts, a reasonable jury could have found
that Oka either “intended . . . to cause bodily harm to” White Bull or “intended to, and
reasonably d[id], cause [White Bull] to fear immediate bodily harm.” Harlan, 815
F.3d at 1106 (internal quotations omitted). The evidence sufficiently established facts
enabling the jury to conclude Oka committed domestic assault.

       Oka next argues that the evidence was insufficient to convict him for tampering
with a victim or witness under 18 U.S.C. § 1512(b)(1). Section 1512(b)(1) proscribes
“knowingly us[ing] intimidation, threaten[ing], or corruptly persuad[ing] another
person, or attempt[ing] to do so . . . with intent to . . . influence, delay, or prevent the
testimony of any person in an official proceeding.” As reflected by the district court’s
instruction, this crime has two elements: (1) “that the defendant, Alexander James
Oka, knowingly used corrupt persuasion against Sundance Rose White Bull;” and (2)
“that the defendant did so with intent to influence, delay, or prevent the testimony of
Sundance Rose White Bull at an official proceeding.” Final Jury Instrs., Instr. No. 8
at 9. “To corruptly persuade someone means to persuade with consciousness of
wrongdoing.” Id. And acting with an “intent to influence” testimony means acting
“for the purpose of getting the person to change or color or shade her testimony in
some way.” Id.

       Oka argues that he did not knowingly use corrupt persuasion because his letter
“did not ask White Bull to change her story,” “did not ask [White Bull] to lie,” “did
not accuse [White Bull] of making a false allegation against him,” and “did not
threaten White Bull in any way.” Appellant’s Br. at 8. Oka overlooks that the letter
explicitly asked White Bull to not show up to a hearing, and to tell the lawyers on the

                                            -6-
case that she would be unavailable for trial. Oka concedes as much in his brief,
stating that “the letter simply asked White Bull to not show up at trial.” Id. at 9. Oka’s
request clearly conveys that Oka believed White Bull’s absence would benefit his
defense and impair the prosecution’s case.

       Tampering does not require proof that White Bull was actually influenced by
Oka’s actions. See, e.g., United States v. Bernhardt, 903 F.3d 818, 827 (8th Cir.
2018). Based on a fair reading of Oka’s letter, a reasonable jury could have found that
Oka “did not act with an innocent purpose but with consciousness of wrongdoing.”
Id. In other words, it was reasonable for a jury to conclude that Oka knew attempting
to prevent the testimony of the primary witness against him was wrongful. Therefore
a reasonable jury could find that he used corrupt persuasion against White Bull “with
intent to . . . prevent [her] testimony.” Final Jury Instrs., Jury Instr. No. 8 at 9. The
government presented sufficient evidence to support Oka’s conviction of witness
tampering.

                                  III. Conclusion
      The judgment of the district court is affirmed.
                     ______________________________




                                           -7-
