                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1294
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Michael M. Thomas

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                    Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                          Submitted: November 17, 2017
                            Filed: December 21, 2017
                                 ____________

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Michael M. Thomas appeals his convictions for domestic assault by an habitual
offender and assaulting an intimate partner by suffocation or attempted suffocation,
in violation of 18 U.S.C. §§ 113(a)(8), 117, and 1153. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
       At trial, Thomas’s girlfriend, Morgyn Redhorn, testified that he pushed her
onto a couch, plugged her nose, covered her mouth, and threatened to “put me out.”
Redhorn said she struggled to breathe, was afraid she might lose consciousness, and
feared for her life. A neighbor testified she heard screams “like someone was in
trouble.” Police, responding to the scene, testified Redhorn had a swollen lip, red
face, and was visibly upset. At the close of evidence, the district court1 denied
Thomas’s motion for judgment of acquittal. The jury convicted on both counts.

     At sentencing, the district court shared a conversation it had with the jury
immediately after the verdict:

      As the lawyers know, every time there’s a jury trial, I go back and I
      meet with the jury to thank them, and I never of course inquire about
      anything concerning deliberations. I invite them to ask me questions
      about the general court operation, if they have questions.

      But as soon as I went back to meet with this jury, they did say we want
      you to know we did not think that the defendant intended to hurt this
      victim. We believe his actions were negligent. Now, of course, under
      the instruction the term negligence isn’t used, the term recklessness is
      used, and so it can be inferred with some certainty that the jury
      concluded the defendant’s actions were reckless.

      I’ll also note that while the defendant’s actions were completely
      inexcusable and the evidence demonstrated that he did cover the
      victim’s mouth and nose and impeded her breathing and did that
      repeatedly, it appeared from the evidence that the defendant was not
      attempting to cut the victim off from all oxygen but was attempting to
      stop her from screaming, and that’s not an excuse for his conduct.

      His conduct violated the statute, and he was guilty of the crime.


      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.

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The district court sentenced him to 37 months’ imprisonment on each count, to be
served concurrently.

      Thomas appeals, arguing the jury’s statement shows there is insufficient
evidence to support the verdict, and the jury did not follow the court’s instructions.

                                          I.

       Thomas believes the evidence was insufficient to convict for assaulting an
intimate partner by suffocation or attempted suffocation. This court reviews de novo
the sufficiency of the evidence, viewing it most favorably to the verdict and accepting
all reasonable inferences supporting it. See United States v. Bell, 761 F.3d 900, 906
(8th Cir. 2014). This court reverses “only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt.” United States v. Morales, 445 F.3d
1081, 1084 (8th Cir. 2006).

      18 U.S.C. § 113(a)(8) criminalizes assaulting “a spouse, intimate partner, or
dating partner by strangling, suffocating, or attempting to strangle or suffocate.”
“Suffocating” is defined as:

      intentionally, knowingly, or recklessly impeding the normal breathing
      of a person by covering the mouth of the person, the nose of the person,
      or both, regardless of whether that conduct results in any visible injury
      or whether there is any intent to kill or protractedly injure the victim.

18 U.S.C. § 113(b)(5). Redhorn’s testimony establishes the elements of the crime.
See Bell, 761 F.3d at 906-07 (holding “a victim’s testimony alone can be sufficient
to prove” the crime); United States v. L.B.G., 131 F.3d 1276, 1278 (8th Cir. 1997)
(“It is well established that the uncorroborated testimony of a single witness may be
sufficient to sustain a conviction.”).



                                         -3-
       Thomas argues Redhorn’s testimony is not credible because it is not supported
by photos and is undermined by Facebook posts showing she wanted to “get back at
Thomas.” This argument is without merit. Redhorn’s testimony was corroborated
by a neighbor and police officers. Regardless, the jury found Redhorn credible, and
“[t]his court does not ‘judge credibility of witnesses.’” United States v. Tillman, 765
F.3d 831, 834 (8th Cir. 2014), quoting United States v. Conway, 754 F.3d 580, 587
(8th Cir. 2014).

        Thomas also argues the jury’s statement shows it “fail[ed] to find the requisite
intent.” Consistent with 18 U.S.C. § 113(b)(5), the court instructed the jury that
“suffocating” is defined as “intentionally, knowingly, or recklessly impeding the
normal breathing of a person.” It also instructed the jury there was no requirement
that Thomas “intended to kill the victim or cause her to suffer prolonged injury.”
Redhorn’s testimony supports a finding of recklessness, at least. The jury’s statement
that it believed Thomas was negligent does not undermine this finding.

      The evidence sufficiently supports the verdict.

                                           II.

       Thomas believes the jury’s statement shows it failed to follow the court’s
instructions, invalidating the verdict. This court reviews decisions “regarding juror
misconduct for an abuse of discretion.” United States v. Lashley, 251 F.3d 706, 711
(8th Cir. 2001). “A jury is presumed to follow its instructions.” United States v.
Myers, 503 F.3d 676, 683 (8th Cir. 2007), quoting Weeks v. Angelone, 528 U.S. 225,
234 (2000).

      Relying on Doe By & Through G.S. v. Johnson, 52 F.3d 1448, 1458 (7th Cir.
1995), Thomas argues the jury’s comment is evidence of the “overwhelming
probability” the jury did not follow the instructions. After trial, the jury said it “did

                                          -4-
not think that the defendant intended to hurt this victim” but rather that his “actions
were negligent.” The jury’s use of the word “negligent” in this context is not
sufficient to rebut the presumption the jury “follow[ed] its instructions.” Myers, 503
F.3d at 683. If anything, the statement shows the jury followed the instruction that
Thomas need not have “intended to kill the victim or cause her to suffer prolonged
injury.”

       Regardless, “Rule 606(b) generally prohibits a juror from impeaching his or her
verdict with the exception that a juror may testify to extraneous information or
improper influence in the jury room.” United States v. Vig, 167 F.3d 443, 450 (8th
Cir. 1999). Here, there are no allegations the jury considered extraneous information
or was influenced improperly. The district court acted within its “broad discretion”
in finding the jury followed its instructions. Id.

                                    *******

      The judgment is affirmed.
                     ______________________________




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