                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1260
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Darrell Alan Lussier

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                           Submitted: October 21, 2016
                              Filed: January 6, 2017
                                 ____________

Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
                             ____________

WOLLMAN, Circuit Judge.

      Following a jury trial, Darrell Alan Lussier was convicted of three counts of
kidnapping, in violation of 18 U.S.C. §§ 1151, 1153(a), and 1201(a)(2), and three
counts of assault resulting in serious bodily injury, in violation of
18 U.S.C. §§ 113(a)(6), 1151, and 1153(a). The district court1 sentenced Lussier to
360 months’ imprisonment. Lussier appeals, arguing that the district court
erroneously instructed the jury regarding assault resulting in serious bodily injury,
that the court erred by conditionally admitting a prior assault conviction as
impeachment evidence, and that the evidence was insufficient to convict him of
kidnapping. We affirm.

                                         I.

       Because Lussier challenges the sufficiency of the evidence, “we will examine
the evidence in the light most favorable to the government, giving the government the
benefit of all reasonable inferences.” United States v. Bordeaux, 84 F.3d 1544, 1547
(8th Cir. 1996). In February 2015, Gregory Lee Maxwell resided in a duplex house
in the Back of Town area of the Red Lake Indian Reservation. Maxwell was
prohibited from having drugs in the house. Lussier and his then-girlfriend Cristy
Sumner resided with Maxwell for approximately one month. Maxwell believed that
he was on good terms with Lussier and Sumner, who had “pretty much left on their
own,” but according to Maxwell, Lussier and Sumner had brought drugs into the
house, despite knowing that drugs were not allowed on the premises.

      On or about February 7, 2015, David Roy and Maxwell were drinking alcohol
together at Maxwell’s house. When Maxwell left to buy more alcohol, he instructed
Roy not to let Lussier and Sumner into the house. When Maxwell returned home a
few hours later, David Roy, his sister Nancy Roy, Lussier, and Sumner were present
at his house. Lussier proceeded to beat Maxwell, David Roy, and Nancy Roy.
According to Maxwell, Lussier hit him, jumped on his stomach and side, wrapped a
bootlace around his throat, and dragged him by the bootlace, choking him. When


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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Maxwell tried to leave, Sumner blocked the door, and Lussier told him: “Tonight is
the night. Tonight is the night. You gonna die tonight. You got one hour to live.”
David Roy and Nancy Roy were also badly beaten by Lussier. Lussier and Sumner
threw Maxwell, David Roy, and Nancy Roy through a trap door into the crawl space
underneath the house. They then shut the trap door to the crawl space, which was
cold and poorly lit. Maxwell and Nancy Roy attempted to find the trap door and push
it open but were unable to do so. The three remained in the crawl space until
Maxwell’s nephew, Lawrence Kingbird, discovered them on the morning of February
9, 2015.

       Maxwell, David Roy, and Nancy Roy all eventually received medical
treatment. Maxwell suffered a hemopneumothorax, blood and air in the chest cavity
that placed pressure on the heart and lungs and required the placement of a chest tube;
several rib fractures, which likely caused the hemopneumothorax; spinous process
fractures; a dissection of his carotid artery, which caused him to suffer a stroke; a
deep cut on his chin that required sutures; and a traumatic brain injury. Maxwell was
hospitalized for approximately ten days and spent ten more days in rehabilitation.
Nancy Roy suffered a subdural hematoma and multiple facial bone fractures, which
required surgery. She was hospitalized for approximately ten days. David Roy
suffered hemorrhaging in his brain and facial fractures. He spent more than one
month in the hospital and approximately one month in a psychiatric facility.

                                            II.

                                            A.

       Lussier first argues that the district court erred in instructing the jury on assault
resulting in serious bodily injury. Because Lussier did not object to these
instructions, we review for plain error. United States v. Davis, 237 F.3d 942, 944
(8th Cir. 2001). “[A] conviction will be affirmed ‘if the instructions, taken as a

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whole, fairly and adequately convey the law applicable to the case.’” United States
v. Whitefeather, 275 F.3d 741, 743 (8th Cir. 2002) (quoting United States v.
McDougal, 137 F.3d 547, 558 (8th Cir. 1998)).

       Lussier contends that the jury instruction did not require the jury to find that
Lussier committed an assault that resulted in serious bodily injury, as the statute
requires. See 18 U.S.C. § 113(a)(6). The district court instructed the jury that the
offense has two elements: that the defendant committed an assault, and that the
person assaulted suffered serious bodily injury. The court defined assault as “an
intentional and voluntary attempt or threat to do injury to another person, when
coupled with the present ability to do so that is sufficient to put the other person in
fear of immediate bodily injury.” Lussier argues that because the instruction defined
assault only as a threat or attempt to injure another, it did not require that the assault
actually caused the serious bodily injury. He acknowledges that we have previously
upheld convictions for assault under § 113 when the offense conduct involved a
harmful or offensive touching. See Whitefeather, 275 F.3d at 742-43; Davis, 237
F.3d at 944-45. But he argues that in those cases there was a legal basis for the
assault conviction because the jury instructions defined assault to include an actual
harmful or offensive touching, whereas here the instructions defined assault to
include only the threat or attempt to injure another.

       The jury was required to find that Lussier committed an assault and that the
person assaulted suffered serious bodily injury. When these instructions are read
together, the most natural meaning is that Lussier’s assault caused the serious bodily
injury and thus that the assault involved harmful touching. Accordingly, the
instructions “taken as a whole, fairly and adequately convey[ed] the law applicable
to the case,” Whitefeather, 275 F.3d at 743, and thus the jury had a sufficient legal
and factual basis to convict Lussier of that charge.




                                           -4-
       Moreover, even if the assault instruction was erroneous, it was not plain error
because it did not affect Lussier’s substantial rights. See United States v. Vanover,
630 F.3d 1108, 1119 (8th Cir. 2011) (per curiam). “[A]n error only affects substantial
rights if it is prejudicial, i.e., the defendant proves there is ‘a reasonable probability
that, but for [the error claimed], the result of the proceeding would have been
different.’” Id. (second alteration in original) (quoting United States v. Dominguez-
Benitez, 542 U.S. 74, 82 (2004)). The evidence presented at trial showed that Lussier
physically beat the victims, not that he attempted or threatened to beat them. Had the
jury instructions defined assault to include physical striking, the jury doubtless would
still have convicted Lussier. Accordingly, because Lussier has not shown a
reasonable probability that the result of the trial would have been different had the
instruction been worded differently, he has not shown plain error.

                                           B.

       Lussier contends that the district court erred in ruling that it would admit
impeachment evidence of his prior conviction for assault resulting in serious bodily
injury if Lussier testified, arguing that the ruling violated his Fifth Amendment right
to due process and his Sixth Amendment right to a jury trial. By not testifying,
Lussier failed to preserve this claim in light of the Supreme Court’s holding in Luce
v. United States that “to raise and preserve for review the claim of improper
impeachment with a prior conviction, a defendant must testify.” 469 U.S. 38, 43
(1984); see also United States v. Johnson, 767 F.2d 1259, 1270 (8th Cir. 1985)
(“Although Luce was decided under Fed.R.Evid. 609(a)(1), its logic applies with
equal force to motions under Rule 404.”).

                                           C.

      Lastly, Lussier contends that the evidence was insufficient to convict him of
kidnapping. We review de novo a challenge to the sufficiency of the evidence after

                                           -5-
denial of a motion for acquittal, viewing the evidence in the light most favorable to
the verdict. United States v. Ford, 726 F.3d 1028, 1033 (8th Cir. 2013). We draw all
reasonable inferences in the government’s favor, and reverse only if no reasonable
jury could have found the defendant guilty beyond a reasonable doubt. Bordeaux, 84
F.3d at 1547-48. Under 18 U.S.C. § 1201(a), a defendant is guilty of a crime if the
defendant “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries
away and holds for ransom or reward or otherwise any person.” Kidnapping under
§ 1201(a) thus has two elements: that of seizing, confining, inveigling, decoying,
kidnapping, abducting, or carrying away; and holding for ransom or reward or
otherwise. Chatwin v. United States, 326 U.S. 455, 459 (1946). As to the second
element, “[t]he act of holding a kidnapped person for a proscribed purpose necessarily
implies an unlawful physical or mental restraint for an appreciable period against the
person’s will and with a willful intent so to confine the victim.” Id. at 460.

       Lussier argues that the evidence was insufficient because it did not show that
he “held” the victims. The district court instructed the jury that Lussier was charged
with holding each victim “for the purpose of preventing him or her from contacting
law enforcement and preventing the discovery of Defendant’s crime.” Lussier
contends that the evidence does not show he held or had the intention to hold the
victims because the trap door to the crawl space was not locked or obstructed, and
there is no evidence that Lussier remained at Maxwell’s house to prevent the victims
from escaping.

       We conclude that the evidence was sufficient to convict Lussier of kidnapping.
Lussier beat the three victims, causing each of them significant injuries. He then
threw them into the crawl space and closed the door, leaving them in a cold, dimly lit
space where they would not be readily found. A jury could reasonably infer from
these facts that Lussier intended to confine the injured, incapacitated victims and
prevent them from reporting the assault notwithstanding his failure to lock or obstruct
the trap door or personally stand guard to prevent them from escaping. Cf. United

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States v. Stands, 105 F.3d 1565, 1576 (8th Cir. 1997) (holding that evidence was
sufficient for kidnapping conviction where Defendant inveigled or decoyed the victim
for the purpose of transportation to an isolated location where assault would not be
interrupted).

      The judgment is affirmed.
                     ______________________________




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