                        United States Court of Appeals
                                   FOR THE EIGHTH CIRCUIT



No. 98-1226SD

United States of America,                    *
                                             *
     Appellee,                               *
                                             *      Appeal from the United States
v.                                           *      District Court for the
                                             *      District of South Dakota
Randy Phelps,                                *
                                             *
     Appellant.                              *
                                             *
                                             *

         The clerk is directed to vacate the panel's January 4, 1999, opinion in this matter. The

clerk shall issue the attached corrected and clarified opinion in its stead. The judgment issued

on January 4, 1999, remains in effect.

         The corrected and clarified opinion issued this date makes non-dispositive changes in

the court's earlier opinion and does not affect the outcome of the case. As a result, the issuance

of this corrected and clarified opinion does not trigger a new period for the filing of rehearing

petitions. The pending rehearing and rehearing en banc petitions are not affected by this

order.

                                                    February 4, 1999




Order entered under Rule 27B



Clerk, U.S. Court of Appeals, Eighth Circuit.
                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1226
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Randy Phelps,                           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 20, 1998
                                Filed: February 4, 1999
                                 ___________

Before BOWMAN, Chief Judge, BRIGHT, and RICHARD S. ARNOLD, Circuit
      Judges.
                            ___________

BOWMAN, Chief Judge.

       The appellant, Randy Phelps, was convicted by a jury of assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153, and use of a
firearm in a crime of violence, in violation of 18 U.S.C. §§ 113(a)(3) and 1152.
Phelps was sentenced to 81 months in prison. Phelps appeals, raising seven issues:
(1) that his prosecution in federal court violated the Double Jeopardy Clause because
he had already been prosecuted in a tribal court; (2) that the District Court1 did not
have jurisdiction over him because the land on which he resided was not part of the


      1
      The Honorable John B. Jones, United States District Judge for the District of
South Dakota.
Yankton Sioux Indian Reservation; (3) that the District Court abused its discretion
by admitting several statements under the excited utterance exception to the rule
against hearsay; (4) that the evidence was not sufficient to support his convictions;
(5) that the District Court gave several erroneous jury instructions; (6) that the
District Court erred when it found that the officer's entrance into Phelps's home was
consensual; and, (7) that the District Court erred by admitting evidence relating to
Phelps's actions immediately before and after the shooting. For the reasons set forth
below, we affirm Phelps's convictions.

                                           I.

      Phelps is a Caucasian male,who resides in Greenwood, South Dakota. Phelps
leased a house which is located on a tract of trust land that is owned by the Yankton
Sioux Indian Tribe. Phelps shared this house with his girlfriend, Shannon Keeler, and
her two sons. The convictions in this case arose out of Phelps's acts on November 30,
1996, when Phelps fired several shots at Keeler and her sons after an argument with
Keeler.

       On December 5, 1996, Phelps was arraigned in the Yankton Sioux Tribal Court
for aggravated assault and possession of a weapon by an intoxicated person, in
violation of the Yankton Sioux Law and Order Code 3-14-2 and 3-11-9. Phelps pled
guilty to both counts and a judgment of conviction was entered by the tribal court on
December 6, 1996.

       On February 14, 1997, a federal indictment was filed in the United States
District Court for the District of South Dakota charging Phelps with assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153, and use of a
firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 113(a)(3) and
1152. These charges arose from the November 30 shooting. Phelps filed a motion
to dismiss the indictment, arguing that his prosecution in both tribal and federal court
for the same conduct violated the Double Jeopardy Clause. The District Court denied

                                         -3-
his motion. On October 23, 1997, a jury found Phelps guilty of both federal charges.
These federal convictions are the subject of Phelps's appeal. The following is a
summary of the evidence that was admitted in Phelps's federal trial.

       On November 30, 1996, Phelps returned home, and began to argue with Keeler.
Phelps told Keeler that he wanted her out of his house permanently. Phelps was
swearing at her and speaking loudly. Keeler thought that he might have been
drinking. She asked for keys to the car so she could leave, and he threw them at her.
As Keeler bent over to pick up the keys, Phelps pointed a small gun at her and told
her to leave again. She and her sons left the house and got into a brown Skylark, but
were unable to leave because Phelps had given Keeler the wrong keys. As they
exited from the car, Phelps came out of the house, carrying a larger gun. Keeler and
the children ran towards a neighbor’s house. As she was running, Keeler heard a
gunshot. She pushed her children to the ground and fell on top of them to protect
them. Keeler heard five to six gunshots. The shots were fired by Phelps, who was
standing approximately 257 yards away from Keeler and the children.

       When Keeler arrived at her neighbor’s house, she called 911. There was
conflicting testimony at trial regarding Keeler’s 911 phone calls. Tiphany Dvorak,
the 911 dispatcher, testified that Keeler had called 911 twice. Dvorak testified that
during the first call, Keeler stated that someone was shooting at her and requested
police assistance. During both calls, Keeler sounded upset and there was crying in
the background. When asked if she thought that Keeler had been “making more of
[the incident] than what it really was,” Dvorak testified that “it sounded pretty bad.”
Trial Tr. at 108. Dvorak’s testimony was admitted under the excited utterance
exception to the rule against hearsay.

      In contrast to Dvorak's testimony, Keeler testified that she had called 911 three
times. She testified that in her first call, she had requested assistance to retrieve her
belongings from Phelps's house and that the dispatcher did not offer assistance.
Keeler testified that she repeated her request during the second call and still received

                                          -4-
no assistance. Keeler then claimed that she was frustrated because an officer had not
been dispatched, so she called a third time and said that someone was shooting at her.

        Keeler also had called a relative, Nancy Cooke, shortly after the shooting.
Keeler spoke to Cooke for several minutes. Keeler told Cooke that she needed a ride
out of Greenwood and that she needed “to get out of here fast.” Trial Tr. at 111. At
trial, Cooke testified that Keeler had sounded out of breath, scared, and nervous
throughout their conversation. Cooke had known Keeler for many years and testified
that she did not usually sound this way. Cooke’s testimony was admitted under the
excited utterance exception to the rule against hearsay.

       Officer Russell Leaf testified that he arrived on the scene approximately 15
minutes after receiving a phone call from Cooke. Leaf testified that he spoke to
Cooke for several minutes and then saw Keeler and her sons walk out from a field.
Leaf testified that he spoke to Keeler, who was very upset. Her hands were shaking,
and she and the children were crying. Keeler told Leaf that her boyfriend had tried
to shoot her and had threatened to use her and the children for target practice. Leaf
repeatedly urged her to calm down, but she remained upset throughout her description
of the shooting. Keeler was adamant that Phelps had been pointing a gun at her and
stated that the shots had been fired from right behind her. Leaf testified about
Keeler’s statements under the excited utterance exception to the rule against hearsay.

        Shortly after the shooting, and while Leaf was speaking to Keeler, Phelps
arrived on the scene. He was angry and belligerent. Leaf placed Phelps under arrest,
and Phelps asked Leaf to secure his house. There was conflicting testimony
regarding Phelps's exact words regarding his consent to enter the house. Phelps
testified that he intended for his consent to be limited to boarding up a broken
window. Leaf testified that Phelps asked him to secure his house and to remove any
intruders. While Leaf secured the house and checked each room for intruders, he
discovered a 12-gauge Mossberg shotgun, another shotgun, and shotgun shells in
plain view. This evidence was admitted at trial over Phelps's objection.

                                         -5-
      At the close of the trial, a jury found Phelps guilty of both charges, and Phelps
was sentenced to 81 months in prison.

                                          II.

                                          A.

       The first issue Phelps raises on appeal is that his prosecution in federal court
violated the Double Jeopardy Clause because he had been prosecuted in a tribal court
for the same conduct. Phelps's argument is based on this Court's decision in United
States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998). In Weaselhead, we held that the
Double Jeopardy Clause bars the federal prosecution of a Native American who
previously has been tried for the same conduct by a tribal court of which he was not
a member. Id. at 824. The Court recently has granted the government's petition for
rehearing en banc in Weaselhead, and the panel opinion thus has been vacated. We
review Phelps's Double Jeopardy claim de novo. See United States v. Basile, 109
F.3d 1304, 1306 (8th Cir.), cert. denied, 118 S. Ct. 189 (1997).

       The Double Jeopardy Clause of the Fifth Amendment provides that no person
shall "be subject for the same offense to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. Protection from double jeopardy is fundamental to the
American justice system. See United States v. Dixon, 913 F.2d 1305, 1309 (8th Cir.
1990). The Double Jeopardy Clause, however, "does not come into play until a
proceeding begins before a trier 'having jurisdiction to try the question of guilt or
innocence of the accused.'" Serfass v. United States, 420 U.S. 377, 391 (1975)
(quoting Kepner v. United States, 195 U.S. 100, 133 (1904)). Because Phelps is
Caucasian, rather than Native American, the Yankton Sioux Tribal Court did not have
jurisdiction to enforce tribal laws against him. Indian tribal laws are enforceable
against Indians only, not against non-Indians. See Oliphant v. Suquamish Indian
Tribe, 435 U.S. 191, 205 (1978). Because the Yankton Sioux did not have



                                         -6-
jurisdiction to prosecute Phelps in tribal court, the Double Jeopardy Clause was not
violated by Phelps's prosecution in federal court.

                                          B.

      The second issue Phelps raises on appeal is that the District Court did not have
subject matter jurisdiction over his case because the offense did not occur in Indian
Country. Federal courts have jurisdiction over offenses committed in Indian Country.
18 U.S.C. § 113 (1994). Indian Country is defined as "all land within the limits of
any Indian reservation under the jurisdiction of the United States" and "all Indian
allotments, the Indian titles to which have not been extinguished." 18 U.S.C. § 1151
(1994).

       Prior to trial, Phelps filed a motion to dismiss his indictment, arguing that the
District Court did not have subject matter jurisdiction over the case. The District
Court denied his motion, citing Yankton Sioux Tribe v. Southern Missouri Waste
Management Dist., 99 F.3d 1439 (8th Cir. 1996), which subsequently was reversed
by the Supreme Court. See South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789
(1998). Phelps contends that his indictment should be dismissed or remanded to the
District Court for an evidentiary hearing in light of the Supreme Court's holding.

       Phelps's argument is without merit. Phelps assaulted Keeler on a tract of tribal
trust land owned by the Yankton Sioux Tribe. The Supreme Court's decision in
Yankton Sioux Tribe has no bearing on whether these particular lands are Indian
Country under § 1151. Therefore, the District Court had subject matter jurisdiction
over Phelps, and his motion to dismiss properly was denied.

                                          C.

     The third issue raised by Phelps is that the District Court abused its discretion
when it admitted the testimonies of Tiphany Dvorak, Nancy Cooke, and Officer

                                         -7-
Russell Leaf under the excited utterance exception to the rule against hearsay. The
Federal Rules of Evidence define hearsay as "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted." Fed. R. Evid. 801(c). Hearsay is inadmissible unless it falls
under one or more exceptions. See Fed. R. Evid. 802. One such exception is for an
excited utterance, which is "[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition." Fed. R. Evid. 803(2).

      To determine whether the declarant was still under the stress of
      excitement caused by the assault when he made the statement, we must
      consider the lapse of time between the startling event and the statement,
      whether the statement was made in response to an inquiry, the age of the
      declarant, the physical and mental condition of the declarant, the
      characteristics of the event, and the subject matter of the statement.

United States v. Moses, 15 F.3d 774, 777-78 (8th Cir. 1994). In order for Rule 803(2)
to apply, "it must appear that the declarant's condition at the time of such statement
was such that the statement was spontaneous, excited or impulsive rather than the
product of reflection and deliberation." United States v. Iron Shell, 633 F.2d 77, 86
(8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981). We review the admission of this
evidence only for abuse of discretion. See id.

        As to the testimony of Tiphany Dvorak under the excited utterance exception
to the rule against hearsay, Dvorak testified that Keeler called 911 twice, reporting
that someone had been shooting at her and requesting police assistance. Dvorak
testified that Keeler sounded very upset and that the situation "sounded pretty bad."
Trial Tr. at 108. The evidence did not establish that any appreciable amount of time
had elapsed between the shooting and Keeler's phone calls to 911. Keeler's
statements to Dvorak were made shortly after Phelps had fired a gun at Keeler and her
sons, Keeler sounded upset during the phone calls, the characteristics of the shooting
are such that an ordinary person would have been startled, and the statements

                                          -8-
concerned the shooting. In these circumstances, the District Court did not abuse its
discretion when it permitted Dvorak to testify about Keeler's phone calls to 911.

       Likewise, the District Court did not abuse its discretion when it admitted the
testimony of Nancy Cooke under the excited utterance exception to the rule against
hearsay. Cooke testified that Keeler had called her to request a ride out of
Greenwood and that Keeler stated she needed to get "out of here fast." Trial Tr. at
111. Cooke stated that she had known Keeler all of her life, and that during the
phone call, Keeler spoke quickly, was out of breath, and sounded scared and nervous.
Cooke testified that this was not how Keeler usually sounded when they spoke.
Keeler called Cooke immediately after she called 911, so there was not an appreciable
amount of time between the call and the shooting. Keeler's statements to Cooke were
not in response to an inquiry, and Keeler sounded scared and upset during the phone
call. Keeler's statements were related to the shooting incident and shared identical
characteristics to Keeler's phone calls to 911. The District Court did not abuse its
discretion when it admitted Cooke's testimony.

       Finally, the District Court did not abuse its discretion when it admitted Officer
Leaf's testimony under the excited utterance exception to the rule against hearsay.
Leaf testified that he arrived at Cooke's home within 15 minutes of Cooke's phone
call requesting assistance and spoke to Keeler only minutes after his arrival on the
scene. The lapse of 15 to 30 minutes between an exciting incident and a statement
does not render the statement inadmissible. See Iron Shell, 633 F.2d at 86 (holding
statements elicited by a police officer between 45 minutes and one hour and 15
minutes after an assault were admissible). When Keeler spoke to Leaf about the
shooting, she was visibly distraught. Keeler was crying and her hands were shaking.
Each time Keeler began to talk to Leaf about the shooting, she began to cry, despite
Leaf's attempts to calm her down. Keeler's statements to Leaf were not made in
response to suggestive questioning. Keeler's statements occurred only shortly after
an exciting event, were made while she was still visibly upset from the shooting, and
described the shooting. It was not an abuse of discretion, in these circumstances, for

                                         -9-
the District Court to find that Keeler was in a state of continuous excitement from the
shooting and to admit Leaf's testimony.

                                          D.

      The fourth issue Phelps raises on appeal is that there was insufficient evidence
to sustain his conviction for assault with a dangerous weapon under 18 U.S.C.
§ 113(a)(3). Phelps contends that a shotgun fired at a distance of 257 yards cannot
be a dangerous weapon because Keeler and her sons could not have been injured by
the gun's pellets at that distance. At the close of evidence, Phelps moved the District
Court to acquit him on that basis, and the District Court denied his motion.

       The District Court properly denied Phelps's motion for acquittal. The issue of
what constitutes a dangerous weapon in a particular case is a question of fact for the
jury. See United States v. Moore, 846 F.2d 1163, 1166 (8th Cir. 1988). In this case,
there was conflicting evidence regarding whether the shotgun's pellets could have
injured Keeler and her sons. Thus the issue was properly submitted to the jury. Upon
weighing the evidence in this case, the jury found that Phelps was guilty of assault
with a deadly weapon. A jury verdict “should not be overturned lightly.” United
States v. Scott, 64 F.3d 377, 380 (8th Cir. 1995) (internal quotation and citation
omitted).

       “In reviewing the sufficiency of the evidence on appeal, the court views the
evidence in the light most favorable to the government, resolving evidentiary
conflicts in favor of the government, and accepting all reasonable inferences drawn
from the evidence that support the jury’s verdict.” Scott, 64 F.3d at 380 (internal
quotation and citation omitted). To sustain a conviction under 18 U.S.C. § 113(a)(3),
the government must prove:

      1) that the victim was assaulted, 2) with the use of a dangerous weapon,
      and 3) with the intent to inflict bodily harm. An assault is any
      intentional and voluntary attempt or threat to do injury to the person of
                                        -10-
      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.

United States v. LeCompte, 108 F.3d 948, 952 (8th Cir. 1997). The government is
required to present sufficient evidence only that the appellant assaulted the victim
with an object capable of inflicting bodily injury, and not that the victim actually
suffered bodily injury as a result of the assault. Id. at 952-53.

       Here, the evidence presented by the government, viewed in the light most
favorable to the verdict, is sufficient to support Phelps's conviction. The evidence
supports the jury’s determination that Phelps assaulted Keeler. Testimony was
presented that Phelps pointed a gun at Keeler while she was inside the house and that
he ordered her to leave. He then stood on the porch, pointed a larger gun at her and
her sons, and threatened to use them for target practice. Phelps then fired the gun in
their direction. Keeler clearly felt endangered, as was evident when she pushed her
sons to the ground and laid on top of them to protect them. Based on this evidence,
the jury reasonably could have inferred that an assault had occurred.

        The evidence also supports the jury’s determination that Phelps used a
dangerous weapon to carry out the assault. Although experts testified that it was
unlikely that the pellets from a 12-gauge Mossberg shotgun would travel 257 yards,
another witness testified that, in his personal and professional opinion, pellets could
travel much greater distances than those claimed by the experts. In addition, based
on the evidence, the jury could have determined that Keeler was closer than 257 yards
at the time Phelps fired the shots. Viewed in the light most favorable to the verdict,
the facts are sufficient to support Phelps’s conviction for assault with a dangerous
weapon.

                                          E.



                                        -11-
       The fifth issue raised by Phelps on appeal is that the District Court abused its
discretion when it refused to give the jury an instruction regarding his intoxication
at the time of the shooting. Phelps claims that the trial court should have instructed
the jury on intoxication as a defense to assault with a dangerous weapon because the
offense includes the element of specific intent to do bodily harm.

       A criminal defendant is entitled to an instruction on a theory of defense only
if there is adequate evidence in the record to justify it. United States v. Fay, 668 F.2d
375, 377 (8th Cir. 1981). An intoxication instruction should not be given if it lacks
evidentiary support or is based on mere speculation. United States v. Lavallie, 666
F.2d 1217, 1219 (8th Cir. 1981).

       In the present case, some evidence was presented that Phelps had been
drinking. Testimony revealed that his eyes appeared bloodshot and that he was
carrying alcoholic beverages with him. In addition, Keeler testified that she thought
that Phelps had been drinking. However, there was also evidence that Phelps was not
intoxicated. Keeler's mother, who knew Phelps well, testified that she had seen him
immediately after the shooting and that she did not think that he had been drinking.
She stated that he seemed calm and was acting normally. Further, none of the
witnesses testified that Phelps was staggering or slurring his words. Thus, although
there was some evidence that Phelps had been drinking, the evidence would not
support a finding that he was intoxicated. Therefore, the District Court did not abuse
its discretion by denying Phelps's request for an intoxication instruction.

       Phelps also challenges several of the other jury instructions given in his trial.
Phelps alleges at least ten errors in the District Court's jury instructions, many of
which stem from the District Court's refusal to give the instructions suggested by
Phelps. "When reviewing a challenge to the jury instructions, we recognize that the
district court has wide discretion in formulating the instructions and will affirm if the
entire charge to the jury, when read as a whole, fairly and adequately contains the law
applicable to the case." United States v. Casas, 999 F.2d 1225, 1230 (8th Cir. 1993),

                                         -12-
cert. denied, 510 U.S. 1078 (1994). We have reviewed the jury instructions and are
satisfied that, viewed in their entirety, they fairly and adequately contain the law
applicable to the issues in the case. Therefore, the District Court did not err in its
instructions.

                                          F.

        The sixth issue Phelps raises on appeal is that the District Court erred when it
denied Phelps's motion to suppress two shotguns and shotgun shells discovered in
plain view while Officer Leaf was in Phelps's home. At the suppression hearing,
there was conflicting testimony regarding what Phelps had said to Leaf. Phelps
testified that he gave Leaf permission to enter his home, but that this consent was
limited to allowing Leaf to board up a broken window. In contrast, Leaf testified that
Phelps asked him to secure the premises, and said, "[I]f anybody is in there, I want
them out of my house." Hearing Tr. at 45, 53. The magistrate judge found Leaf's
testimony to be more credible. Determinations regarding credibility are "virtually
unreviewable on appeal." Black, 88 F.3d at 680.

       The test for determining whether an officer has exceeded the scope of a
suspect's consent to enter the suspect's premises "is that of 'objective' reasonableness
– what would the typical reasonable person have understood by the exchange between
the officer and the suspect?" United States v. Sanchez, 32 F.3d 1330, 1334 (8th Cir.
1994) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)), cert. denied, 513 U.S.
1158 (1995). In this case, the District Court properly found that it was objectively
reasonable for Leaf to interpret Phelps's statements as giving his consent to allow
Leaf to enter his home and to check each room for intruders. Therefore, the district
court did not err when it denied Phelps's motion to suppress evidence.

                                          G.




                                         -13-
       The final issue Phelps raises on appeal is that the District Court erred when it
admitted testimony regarding: (1) Phelps's possession and use of a nine-millimeter
pistol shortly before the shooting; (2) Leaf's initial stop of Phelps; (3) Phelps's
traveling to Ben Gonzales's house and giving Delma Bruguier his nine-millimeter
pistol; and, (4) Phelps's arrest. Phelps argues that evidence of these "bad acts" should
have been excluded because the government did not give proper notice under Federal
Rule of Evidence 404(b). Phelps also argues that even if Rule 404(b) does not apply,
the District Court failed to conduct the required Rule 403 analysis.

       When making evidentiary rulings, the District Court has broad discretion, and
its decisions will be overturned on appeal only when there has been an abuse of
discretion. United States v. Jorgensen, 144 F.3d 550, 562 (8th Cir. 1998). In this
case, the district court did not abuse its discretion when it admitted evidence relating
to Phelps's actions immediately before and after the shooting. "'[B]ad acts that form
the factual setting of the crime in issue' or that 'form an integral part of the crime
charged'" are not part of Rule 404(b)'s coverage. United States v. Heidebur, 122 F.3d
577, 579 (8th Cir. 1997) (quoting United States v. Williams, 95 F.3d 723, 731 (8th
Cir. 1996), cert. denied, 117 S. Ct. 750 (1997)). We have held:

      [W]here evidence of other crimes is "so blended or connected, with the
      one[s] on trial as that proof of one incidentally involves the other[s]; or
      explains the circumstances; or tends logically to prove any element of
      the crime charged," it is admissible as an integral part of the immediate
      context of the crime charged. When the other crimes evidence is so
      integrated, it is not extrinsic and therefore not governed by Rule 404(b).

United States v. Swinton, 75 F.3d 374, 378 (8th Cir. 1996) (citations omitted). In this
case, all of the evidence challenged by Phelps concerns either events immediately
before and after the discharge of the shotgun or events surrounding Phelps's arrest.
None of the challenged acts concerns remote or unrelated events, and the evidence
is blended and connected to the charged crimes. Therefore, Rule 404(b) does not
apply.

                                         -14-
       Phelps correctly asserts that even if Rule 404(b) does not apply, "[t]he dictates
of Rule 403 must still be applied to ensure that the probative value of this evidence
is not outweighed by its prejudicial value." United States v. Bass, 794 F.2d 1305,
1312 (8th Cir.), cert. denied, 479 U.S. 869 (1986). We reverse a district court's ruling
under the Rule 403 balancing test only if the court committed a clear abuse of
discretion. United States v. Davis, 154 F.3d 772, 780 (8th Cir. 1998). In this case,
Phelps does not provide any evidence that the District Court failed to consider the
dictates of Rule 403. The evidence admitted was not unfairly prejudicial to Phelps's
case and it had significant probative value. Evidence that Phelps brandished a nine-
millimeter pistol just moments before firing a shotgun at Keeler is probative of his
threatening behavior, and evidence of his behavior at the time of his arrest is
probative of his hostility toward Keeler and the officers. The District Court did not
clearly abuse its discretion under Rule 403 when it admitted evidence relating to
Phelps's actions immediately before and after the shooting.

                                          III.

      Phelps's convictions are affirmed.

BRIGHT, Circuit Judge, Dissenting.

       The majority of our panel concludes that the district court properly refused to
give jury instructions regarding intoxication as a defense to the specific intent
element of the crime charged. The court justifies this conclusion by suggesting that
the evidence would not support a finding that Mr. Phelps was intoxicated. I disagree.
Substantial proof exists on the record to indicate that such an instruction was
warranted, and, because I would remand on this issue alone, I dissent.

      Although it is true that an instruction should not be given “if it lacks
evidentiary support or is based on mere speculation”, United States v. Lavallie, 666
F.2d 1217, 1219 (8th Cir. 1981), this court also applies the well-established principle
of United States v. Fay, 668 F.2d 375 (8th Cir. 1981), that when a criminal defendant
                                         -15-
makes a timely request for a jury instruction on a theory of defense, he is entitled to
receive that instruction if it “‘is supported by evidence’” and “‘sets out a correct
declaration of law.’” Id. at 377 (quoting United States v. Manning, 618 F.2d 45, 47-
48 (8th Cir. 1980)).

       In Fay, the defendant was charged with assault with a dangerous weapon and
the district court refused to give an instruction to the jury concerning intoxication as
a theory of defense. On appeal, we reversed, citing evidence that: the defendant
purchased beer and other liquor on several occasions in the hours leading up to the
events for which he was convicted; he had been drinking for as much as 24 hours
preceding the outbreak of violence at the victim’s house; and the defendant was
“passed out” shortly before the crime. See Fay, 668 F.2d at 377-78. On these facts,
we held that the evidence would “support” a finding that he was intoxicated and
therefore lacked the specific intent necessary for conviction.

        In contrast, in Hayes v. Lockhart, 852 F.2d 339 (8th Cir. 1988), we determined
that no instruction on intoxication was required because, on the facts of that case,
there was minimal evidence that the defendant was impaired at the time of the crime.
We did so based on evidence that: while the defendant testified that he had been
drinking all day, both of his parents testified that he did not appear to be intoxicated
and that they detected no odor of alcohol on his breath; the defendant’s cousin
testified that he did not appear to be intoxicated in the hours before the crime; and the
officers that questioned the defendant all testified that they neither smelled alcohol
on his breath, nor observed him to stagger or slur his words. See Id. at 345.

       These cases, and others, indicate the obvious: intoxication instructions are fact
specific. This court has required instructions to be given when the record reflects
something more than minimal evidence of intoxication. At the very least, where the
issue is controverted, where substantial evidence of drunkenness is present but yet
must be balanced against some limited evidence to the contrary, such an issue is
properly for the jury.

                                         -16-
       The record discloses the following proceedings and evidence. At the outset,
the government began its case by arguing to the court that Mr. Phelps was intoxicated
immediately after the alleged assault, noting that Phelps “was clearly under the
influence of alcohol.” (Tr. at 11). As for the testimony of witnesses, both the victim,
Ms. Keeler, and others who encountered Mr. Phelps testified either to their subjective
belief that Phelps had been drinking or to objective indicia that would suggest
intoxication. Ms. Keeler testified that she thought Phelps had been drinking prior to
the assault. (Tr. at 37). One of Keeler’s children -- the only other witnesses to the
actual events charged -- testified that, even as an seven-year old, he knew Phelps had
been drinking. (Tr. at 93).

        Delma Bruguier, Phelps’ friend, saw him shortly after the incident. She
testified that she thought he had been drinking. (Tr. at 125). Phelps was carrying a
partially consumed 12-pack of beer and a bottle of whiskey that was as much as half
finished. (Tr. at 124). Ms. Bruguier also testified that when Phelps arrived at her
house he had an open bottle of beer, bloodshot eyes, and was behaving in a forward
and aggressive manner. (Tr. at 124-28).

       Officer Leaf, the responding and arresting officer, testified that Phelps had
been “out all night drinking” prior to the assault and returned home mad. (Tr. at 243-
44). According to officer Leaf, Phelps was “belligerent and cussed” when accosted
immediately after the incident, and, in a bizarre sequence, when requested by officers
to put his hands up, Phelps instead dropped his pants. (Tr. at 261-62).

       Counterbalanced against this evidence, is the testimony of a single witness, Ms.
Gregor. Ms. Gregor -- Ms. Keeler’s mother -- testified that when she saw Phelps
briefly immediately before the incident, he was calm and it did not occur to her that
he might have been drinking. (Tr. at 516).

       The majority correctly points out that no witness testified directly that Phelps
either staggered or slurred his words --- implicitly suggesting that those signs are the
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true touchstones of drunkenness. Such markers are not conclusive however, and the
absence of such symptoms ought not be adopted as a quick test for sobriety. Rather,
I suggest that we must consider the totality of the circumstances because such a
reckoning proves to be a more reliable guide.

       In short, there was significant evidence presented to the jury from which it
might determine that Phelps was intoxicated at the time of the incident. While the
evidence of intoxication may not be overwhelming, such a weight of proof has never
been required by the law of this circuit. Instead, the Fay standard requires a jury
instruction on a theory of defense if the request for instruction is merely “supported
by evidence and if it sets out a correct declaration of law.” Fay, 668 F.2d at 377
(emphasis added). In my view, Phelps presented ample evidence to support
intoxication as a theory of defense. That intoxication may defeat specific intent is an
indisputably correct declaration of law. See, e.g., Lavallie, 666 F.2d at 1219.

       The defendant presented sufficient evidence for the court to instruct on this
issue. Thus, the district court’s refusal to so instruct constitutes prejudicial error in
my view, and on that basis I would remand the case to the district court for a new
trial.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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