                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                              May 31, 2011

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                 No. 10-2160
                                                   (D.C. No. 1:09-CR-02983-MCA-1)
 v.                                                            (D. N.M.)

 KEITH MUTTE,

        Defendant - Appellant.


                                ORDER AND JUDGMENT


Before BRISCOE, EBEL and HOLMES, Circuit Judges.


       In this direct criminal appeal, Defendant-Appellant Keith Mutte challenges his

conviction for assault resulting in serious bodily injury. Having jurisdiction under 28

U.S.C. § 1291, we AFFIRM.

                       I. SUFFICIENCY OF THE EVIDENCE

       A jury convicted Mutte of assault resulting in serious bodily injury, in violation of

18 U.S.C. §§ 113(a)(6), 1153. This charge stemmed from a domestic dispute between

Mutte and his then girlfriend, Althea Ghahate, occurring on the Zuni Pueblo. On appeal,

Mutte asserts there was insufficient evidence to support his conviction.

       This court reviews a

       challenge to the sufficiency of the evidence de novo, but in doing so we
       owe considerable deference to the jury’s verdict. This court asks only
       whether taking the evidence – both direct and circumstantial, together with
       the reasonable inferences to be drawn therefrom – in the light most
       favorable to the government, a reasonable jury could find the defendant
       guilty beyond a reasonable doubt. We will not weigh conflicting evidence
       or consider witness credibility, as that duty is delegated exclusively to the
       jury. Rather, we may reverse only if no rational trier of fact could have
       found the essential elements of the crime beyond a reasonable doubt.

United States v. King, 632 F.3d 646, 650 (10th Cir. 2011) (quotations, citations,

alterations omitted).

       The trial court instructed jurors, without objection, that, to convict Mutte, they had

to find beyond a reasonable doubt:

              First: That the defendant Keith Mutte, assaulted Althea Ghahate;

              Second: That as a result of being assaulted, Althea Ghahate suffered
       serious bodily injury;

              Third: That this happened in the State and District of New Mexico
       on or about April 7, 2007;

              Fourth: The Defendant is an Indian; and

             Fifth: That the site of the alleged assault is located in Indian
       Country.

(R. v. 1 at 11.) See also United States v. Zunie, 444 F.3d 1230, 1233 (10th Cir. 2006).

On appeal, Mutte asserts there was insufficient evidence on the first two elements.

A. Evidence that Mutte assaulted Ghahate

       The district court instructed jurors, without objection, that

       [a]n “assault” occurs if a person purposefully, knowingly, or recklessly
       causes bodily injury to another. The term “assault” means any knowing
       attempt or threat to inflict injury upon someone else. An act or a failure to
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       act is “knowingly” done, if done voluntarily and intentionally, and not
       because of mistake or accident or other innocent reason.

(R. v. 1 at 11.) Because assault resulting in serious bodily injury is a general intent

crime, “[i]t is not necessary that defendant have assaulted the victim with the intent to do

serious bodily harm – the resulting serious bodily injury coupled with the general intent

to assault is sufficient to satisfy the elements of the felony.” United States v. Benally,

146 F.3d 1232, 1237 (10th Cir. 1998).

       Ghahate’s testimony - that while she and Mutte were watching television and

doing laundry, Mutte hit and kicked her repeatedly, eventually breaking her ankle -

provided sufficient evidence to support the jury’s finding beyond a reasonable doubt that

Mutte assaulted Ghahate. Mutte argues that the other evidence presented at trial did not

corroborate Ghahate’s testimony. But there was corroborating evidence from Ghahate’s

sister and Mutte’s mother. In any event, this court, on appeal, cannot “weigh conflicting

evidence or consider witness credibility.” King, 632 F.3d at 650. Therefore, Ghahate’s

testimony alone was sufficient to support the jury’s finding beyond a reasonable doubt

that Mutte assaulted her.

B. Evidence of serious bodily injury

       The jury also had to find beyond a reasonable doubt that Ghahate suffered serious

bodily injury as a result of the assault. Regarding that element of the offense, the district

court instructed jurors, without objection, “that the term ‘serious bodily injury,’ as used in

these instructions, means bodily injury which involves (a) extreme physical pain,

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(b) protracted and obvious disfigurement, or (c) protracted loss or impairment of the

function of a bodily member, organ, or mental faculty.” (R. v. 1 at 11-12.) See also

United States v. Tindall, 519 F.3d 1057, 1060-61 (10th Cir. 2008); United States v.

Alexander, 447 F.3d 1290, 1299 (10th Cir. 2006). Mutte concedes that a broken ankle is

a “serious bodily injury.” Under the facts of this case, we agree. Ghahate’s ankle was

broken in three places, requiring surgery and three months’ rehabilitation to repair. Cf.

United States v. Brown, 50 F. App’x 970, 972-73, 976-78 (10th Cir. 2002) (unpublished)

(holding there was sufficient evidence from which a reasonable jury could find

defendants assaulted the victim, resulting in “serious bodily injury,” where victim

testified that defendants pushed him to the ground, resulting in an open ankle fracture).

       Mutte essentially argues that there was insufficient evidence that his assault

caused the broken ankle. However, Ghahate testified that her ankle broke when Mutte

kicked at her and she simultaneously kicked back in self-defense. This is sufficient to

support a finding that Mutte’s assault resulted in Ghahate’s broken ankle. Although

Mutte’s mother testified that Mutte admitted to hitting Ghahate but not kicking her, the

jury was not required to credit this version of events. Cf. United States v. Long Feather,

299 F.3d 915, 917 (8th Cir. 2002) (stating that the jury was entitled to disbelieve the

defendant’s self-serving testimony that he kicked the victim in the shoulder but not in the

head, and, therefore, could not have delivered the blow that killed the victim).

       There was, then, sufficient evidence from which a reasonable jury could have

found beyond a reasonable doubt that Mutte assaulted Ghahate and that the assault
                                             4
resulted in serious bodily injury.

                    II. PROSECUTOR’S CLOSING ARGUMENT

       Mutte next argues that the prosecutor misstated the law during his closing

argument. Because Mutte never raised this particular objection to the district court, this

court reviews for plain error. See United States v. Hall, 625 F.3d 673, 685 (10th Cir.

2010).1 “Plain error occurs when there is (i) error, (ii) that is plain, which (iii) affects the

defendant’s substantial rights, and which (iv) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 684 (quotation, alteration omitted).

“When evaluating allegedly inappropriate remarks of counsel for plain error, we must

view the remarks in the context of the entire trial.” United States v. Lopez-Medina, 596

F.3d 716, 738 (10th Cir. 2010) (quotation omitted).

       Mutte argues that the prosecutor misstated the law, but Mutte does not explain

exactly how. After our own review of the prosecutor’s closing argument in its entirety,

we conclude there was no error, plain or otherwise. In light of the evidence presented to

the jury, the prosecutor could properly argue that Mutte perpetrated one continuing

assault against Ghahate over the course of less than an hour, notwithstanding that he


1
  In the district court, Mutte raised a different objection to the prosecutor’s closing
argument. That was not sufficient, however, to preserve the specific issue he raises now
on appeal. See United States v. Gonzalez-Montoya, 161 F.3d 643, 650 (10th Cir. 1998).
But even if we considered Mutte’s objection made at trial to be sufficient to preserve the
argument he now makes on appeal, plain-error review would still be warranted because,
in response to the objection Mutte raised at trial, the district court gave the jury a
cautionary instruction to which Mutte did not object. See United States v. Taylor, 514
F.3d 1092, 1095-97 (10th Cir. 2008).
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stopped the attack for a few minutes to take his belongings out of the house to his truck.

And when the prosecutor addressed the second element of the offense, that the assault

resulted in serious bodily injury, the prosecutor’s argument properly focused only on

Ghahate’s broken ankle, and not on any other cuts and bruises she may have suffered

during the assault as a whole.

                                  III. CONCLUSION

       For the foregoing reasons, we AFFIRM Mutte’s conviction for assault resulting in

serious bodily injury.



                                          ENTERED FOR THE COURT



                                          David M. Ebel
                                          Circuit Judge




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