                                                                              FILED
                             NOT FOR PUBLICATION                               JUN 06 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                          No. 12-30237

              Plaintiff - Appellee,                D.C. No. 2:11-cr-00151-WFN-1

  v.
                                                   MEMORANDUM *
LEONA LOUISE SUTTON,

              Defendant - Appellant.



                  Appeal from the United States District Court
                     for the Eastern District of Washington
              Wm. Fremming Nielsen, Senior District Judge, Presiding

                         Argued and Submitted May 7, 2013
                                Seattle, Washington

Before: THOMAS and NGUYEN, Circuit Judges, and DEARIE, District Judge.**

       Appellant Leona Sutton appeals her conviction for assault with a dangerous

weapon in Indian Country, in violation of 18 U.S.C. §§ 1153(a) and 113(a)(3).

Specifically, she contends that the district court erred in refusing to instruct the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
jury on the lesser-included offense of simple assault under 18 U.S.C. § 113(a)(5).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

         “A defendant is entitled to an instruction on a lesser-included offense if the

law and evidence satisfy a two-part test: (1) the elements of the lesser offense are a

subset of the elements of the charged offense; and (2) the evidence would permit a

jury rationally to find [the defendant] guilty of the lesser offense and acquit [her]

of the greater.” United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007)

(internal citations and quotation marks omitted) (alterations in original). As the

parties agree that simple assault is a lesser-included offense of assault with a

dangerous weapon under 18 U.S.C. § 113(a)(3), the first part of this test is

satisfied. Accordingly, we need only determine whether there was a sufficient

evidentiary foundation to support a conviction of simple assault under Sutton’s

proposed theory.1 See United States v. Vaandering, 50 F.3d 696, 703 (9th Cir.

1995).




         1
         Since § 113 does not define “assault,” we have adopted the following two-
pronged common-law definition: “(1) a willful attempt to inflict injury upon the
person of another, also known as an attempt to commit a battery, or (2) a threat to
inflict injury upon the person of another which, when coupled with an apparent
present ability, causes a reasonable apprehension of immediate bodily harm.”
United States v. Lewellyn, 481 F.3d 695, 697 (9th Cir. 2007) (internal citations and
quotation marks omitted).

                                            -2-
      Here, Sutton sought to instruct the jury that she could be found guilty of the

lesser-included offense of simple assault if the government proved beyond a

reasonable doubt that she assaulted Raymond Peone by intentionally using a

display of force that reasonably caused him to fear immediate bodily harm. We

recently noted that “for a criminal assault based on causing the apprehension of

imminent bodily injury, the common law requires awareness of the threat.” United

States v. Acosta-Sierra, 690 F.3d 1111, 1121–23 (9th Cir. 2012) (holding that the

defendant’s rock-throwing did not constitute assault under a common-law

“reasonable apprehension of harm” theory because the intended victim “did not

become aware of the threat until after it had dissipated”). Resolution of this appeal

therefore turns on whether there is evidence suggesting that Peone was subjectively

aware that Sutton was pointing a rifle at him, such that he reasonably apprehended

immediate bodily harm.

      The record here contains no such evidence. In fact, Peone’s testimony

refutes Sutton’s theory of simple assault. To wit, Peone testified that he was not

concerned when Sutton angrily stormed out of the house and subsequently

re-entered through the back; that he did not see her gun until after she shot him;




                                         -3-
and that he never felt threatened by her, given the closeness of their relationship.2

Accordingly, because there is no evidence showing that Sutton’s conduct caused

Peone to apprehend immediate bodily harm—a necessary element of Sutton’s

proposed simple assault instruction—we hold that the district court did not abuse

its discretion in refusing to provide a lesser-included offense instruction.

      AFFIRMED.




      2
         During oral argument, Appellant’s counsel pointed to one instance on
cross-examination where Peone testified that he “actually, didn’t see her—see
it—the gun all the way.” Although this could suggest that Peone had partially seen
the gun, it is unclear how much of the gun he might have seen, or when he saw it.
Moreover, the totality of the evidence in the record dispels this notion entirely.
Peone had previously testified on direct that he was watching bull riding when
Sutton came in and “actually, didn’t even see the rifle.” He later confirmed that he
“never seen [sic] her shoot me[,]” and suggested that the other two individuals in
the room had “seen more than [he] did.”
       Thus, we cannot find that the district court abused its discretion in denying
the instruction on this basis.

                                          -4-
