                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 18-30123

                Plaintiff-Appellee,             D.C. No.
                                                6:16-cr-00081-MC-1
 v.

MARCELLUS LESLIE SMITH,                         MEMORANDUM*

                Defendant-Appellant.



UNITED STATES OF AMERICA,                       No. 18-30124

                Plaintiff-Appellee,             D.C. No.
                                                6:11-cr-60050-MC-1
 v.

MARCELLUS LESLIE SMITH,

                Defendant-Appellant.

                   Appeals from the United States District Court
                             for the District of Oregon
                      Michael J. McShane, Judge, Presiding

                Argued March 7, 2019; Resubmitted June 26, 2019
                               Portland, Oregon



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District
Judge.

      Defendant Marcellus Leslie Smith is a convicted bank robber whose

supervised release was revoked on the grounds that he committed a felony assault,

possessed a weapon, and used alcohol. Smith appeals the district court’s finding

that he committed any assault, felonious or otherwise, and argues that his due

process rights were violated. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      Felony Assault

      We review for abuse of discretion the district court’s decision to revoke

supervised release. United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir.

2003). We review the district court’s factual findings in revoking supervised

release for clear error. United States v. Lomayaoma, 86 F.3d 142, 146 (9th Cir.

1996). We review de novo whether the district court had sufficient evidence to

support its findings. United States v. Weber, 320 F.3d 1047, 1050 (9th Cir. 2003).

We review an appeal premised on insufficiency of the evidence by asking whether

any rational trier of fact, viewing the evidence in the light most favorable to the

government, “could have found the essential elements of a violation by a

preponderance of the evidence.” United States v. King, 608 F.3d 1122, 1129 (9th


      **
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.

                                           2                          18-30123 & 18-30124
Cir. 2010) (quoting United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir.

2007)).

      Oregon’s statute for misdemeanor assault states that “[a] person commits the

crime of assault in the fourth degree if the person . . . [i]ntentionally, knowingly or

recklessly causes physical injury to another.” Or. Rev. Stat. § 163.160(1)(a). A

misdemeanor assault becomes a felony if the “[t]he assault is committed in the

immediate presence of, or is witnessed by, . . . the victim’s minor child.” Id.

§ 163.160(3)(a). The statute further provides that “an assault is witnessed [by the

child] if the assault is seen or directly perceived in any other manner by the child.”

Id. § 163.160(4).

      “[A] child ‘directly perceives’ an assault if the child contemporaneously is

aware through any of the child’s senses that an assault is occurring—i.e., that one

person is causing injury to another.” State v. Rader, 228 P.3d 552, 558 (Or. 2010)

(reversing the trial court where too many inferences were required to find that the

victim’s child, aged three, had perceived the assault). Furthermore, “[w]hen the

state contends that a child heard and thus directly perceived an assault, it is

sufficient to show that the child was aware that the sounds arose from assaultive

conduct. The child need not be aware of the details or the specifics of the assault.”

Id. “Reasonable inferences are permissible; speculation and guesswork are not,”

and “evidence is insufficient if it requires the stacking of inferences to the point of


                                           3                           18-30123 & 18-30124
speculation.” State v. Bivins, 83 P.3d 379, 383 (Or. Ct. App. 2004) (reversing the

trial court where too many inferences were required to find that the victim’s

children, aged five and three, had perceived the assault). “[T]he evidence must be

sufficient for the trier of fact to draw a reasonable inference not only that the child

could have heard the sounds arising from the assault but that the child also was

aware of those sounds and that they arose from assaultive conduct.” Rader, 228

P.3d at 560.

      Here, the assault victim’s 16-year-old daughter, JC, is the perceptive minor.

JC was upstairs when the assault happened. Police responded to a domestic

violence call at the apartment complex where the victim lived with JC and her

siblings. When the officers arrived at the complex, they heard what sounded like

boards breaking and also raised voices; they approached the apartment from where

the sounds were emanating. The officers gained entry to the victim’s apartment

when JC opened the door after some delay.

      The government introduced video footage captured by the bodycams of the

responding police. The videos showed the injuries of the victim (JC’s mother),

including a large swelling on her cheek, and the victim’s demeanor and responses

to officers’ questions; the state of the victim’s house, including significant damage

to the drywall and broken glass on the floor; JC’s demeanor and her responses to

an officer’s questions; and Smith’s demeanor and his responses to an officer’s


                                           4                           18-30123 & 18-30124
questions.

      Although JC stayed upstairs with her younger siblings, and she turned up the

volume on the television, given that the loud crashes and bangs prompted a

neighbor to believe that a fight was happening and that police assistance was

needed, it was reasonable for the district court to infer that (i) JC could have heard

the sounds of her mother being assaulted; (ii) JC heard the sounds; and (iii) JC

understood what was causing the sounds. Indeed, the fact that JC turned up the

volume on the television suggests that she heard the assault and acted because of it.

Thus, a rational trier of fact had sufficient evidence, when viewing the facts in the

light most favorable to the government, to find by a preponderance of the evidence

that Smith assaulted JC’s mother and that JC perceived the assault.

      Due Process

      Whether a defendant has received due process at a violation of supervised

release hearing is a mixed question of law and fact to be reviewed de novo. United

States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008). We conduct harmless error

analysis. Id.

      Smith argues that the admission of hearsay evidence violated his due process

rights to confront adverse witnesses at a violation of supervised release hearing.

Before reaching the issue of harmless error, we must first determine whether the

district court relied on the hearsay evidence at issue. See, e.g., United States v.


                                           5                           18-30123 & 18-30124
Comito, 177 F.3d 1166, 1169-73 (9th Cir. 1999) (conducting harmless error

analysis after finding that the challenged hearsay evidence was “important to the

court’s finding”).

      The district court gave a full and clear explanation as to how its decision was

reached. The court’s factual findings were essentially a condensed version of the

events captured by the video, highlighting key aspects of what was shown. The

court also explained that the statements of Smith and the victim were not credible.

The court made no mention of the challenged hearsay evidence. Because there is

no reason to presume that the court relied on or even considered the hearsay

evidence as part of its factual findings, there cannot be a due process violation.

      AFFIRMED.




                                          6                           18-30123 & 18-30124
                                                                             FILED
      United States v. Smith, Nos. 18-30123, 18-30124
                                                                              JUL 22 2019
      BERZON, Circuit Judge, dissenting in part:                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

      I concur in the memorandum disposition except for the felony

assault holding. In my view, JC, the victim’s daughter and the

perceptive minor in the case, could not have “directly perceive[d]” the

assault. Or. Rev. Stat. §163.160(4).

      As the majority recites, “a child ‘directly perceives’ an assault

if the child contemporaneously is aware through any of the child’s

senses that an assault is occurring—i.e., that one person is causing

injury to another.” State v. Rader, 228 P.3d 552, 558 (Or. 2010). Here,

according to what JC told the police, after hearing the beginning of a

loud argument, JC went into an upstairs room, closed the door, and

turned the television volume up—all so that she and the victim’s three

other young children would not be able to hear what was going on

below. To support its conclusion that there was nonetheless sufficient

evidence to conclude that JC heard the assault (as opposed to the

earlier verbal argument), the majority points only to evidence that a

neighbor was able to hear the sounds of the altercation from outside

the apartment. But there is no indication that the neighbor had a sound

impediment that interfered with hearing what was going on in the
downstairs part of JC’s house. In contrast, JC was upstairs, behind a

closed door, listening to a television purposely turned up loud enough

to obscure sounds from downstairs. Given these circumstances, what

the neighbor heard is no evidence at all that JC was

“contemporaneously aware through any of [her] senses” that there

was a physical assault going on.

      As there is no other evidence of JC’s contemporaneous visual

or oral perception of the assault, there was insufficient evidence for

the district court to revoke Smith’s supervised release because he had

committed felony assault under Oregon law. See United States v.

King, 608 F.3d 1122, 1129 (9th Cir. 2010).
