                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 22 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-5190
                                                    (D.C. No. 97-CR-26-H)
    PERRY A. McMINN, JR.,                                (N.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BALDOCK , EBEL , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant-Appellant Perry A. McMinn, Jr. brings this timely direct appeal

from his convictions for assault with a dangerous weapon with intent to do bodily

harm in violation of 18 U.S.C. § 113(a)(3), and for assault resulting in serious

bodily injury in violation of 18 U.S.C. §   113(a)(6).   1
                                                             The offenses occurred in

Indian Country, as defined by 18 U.S.C. § 1151, and the victim is an enrolled

member of the Cherokee tribe. The district court had jurisdiction pursuant to

18 U.S.C. § 1152. We affirm.

       Mr. McMinn and his victim, Sally White, lived together in a mobile home

in Quapaw, Oklahoma. Before Ms. White left for work on February 5, she and

Mr. McMinn discussed the fact that her ex-husband wanted to visit his children.

Mr. McMinn was opposed to Ms. White spending any time with her ex-husband,

because he was afraid that a sexual relationship might develop between them.

       Ms. White testified that she returned from work just before midnight on

February 5. Mr. McMinn was not at home, so she locked the door and went to

bed. Sometime later, Mr. McMinn entered their bedroom, turned on the light, and

began striking her and calling her names. He told her she had driven him crazy.

Over the course of the next several hours, he beat her with his fists, kicked her,


1
       Mr. McMinn was also convicted of knowingly using and carrying a firearm
during and in relation to a crime of violence, pursuant to 18 U.S.C. § 924(c), and
acquitted of crossing a state line or entering Indian country with the intent to
injure, harass, or intimidate an intimate partner, pursuant to 18 U.S.C. § 2261. He
does not appeal from his § 924(c) conviction.

                                            -2-
and struck and threatened her with a shotgun. The shotgun discharged in her

direction at one point, blowing a hole in a cabinet two feet from where she was

sitting. Finally, Mr. McMinn allowed Ms. White to leave the trailer, and she

contacted the police.


      1. Lesser included offense instruction

      Count One of the indictment charged Mr. McMinn with assault with a

dangerous weapon with intent to do bodily harm, pursuant to 18 U.S.C.

§ 113(a)(3). He argues that the jury should have been instructed on the lesser

included offense of assault by striking, beating or wounding.   See 18 U.S.C.

§ 113(a)(4).

      Whether an offense for which an instruction is sought actually
      qualifies as a lesser included offense of the offense charged is a
      question of law that we review de novo . However, we review the
      district court’s decision as to whether there is enough evidence to
      justify a lesser included offense instruction for an abuse of
      discretion.

United States v. Duran , 127 F.3d 911, 914 (10th Cir. 1997) (citations omitted),

cert. denied , 118 S. Ct. 1389 (1998).

      In Duran , we determined that the offense of assault by striking, beating or

wounding was not a lesser included offense of assault with a dangerous weapon.

See id. at 915. We reasoned as follows:

      Assault by striking, beating or wounding . . . requires a physical
      touching and is the equivalent of simple battery. However, assault

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       with a dangerous weapon . . . only requires proof of an assault with a
       dangerous weapon, with the intent to cause bodily harm. The offense
       does not require proof of any physical contact. Consequently, a
       defendant may commit assault with a dangerous weapon without
       committing assault by striking, beating or wounding. Because the
       offense of assault by striking, beating or wounding requires proof of
       an element not required to prove assault with a dangerous weapon,
       the crime of striking, beating or wounding does not qualify as a
       lesser included offense under the elements test.

Id. (citations omitted).

       Mr. McMinn contends that his case should be distinguished from           Duran , for

two reasons: first, because he used the weapon both to physically strike and to

threaten the victim; and second, because he was intoxicated, and therefore lacked

the specific intent to commit assault with a dangerous weapon. Neither of these

bases justifies a departure from the rule in     Duran .

       We apply a four-part test to determine whether the court must give a lesser

included offense instruction.     See Duran , 127 F.3d at 914. All four of the factors

must be satisfied.   See id. at 915. Under this test, “t he elements of the lesser

included offense must be a      subset of the elements of the greater (charged)

offense.” See id. at 914 (emphasis added). In determining whether the subset

factor is satisfied, we examine the statutory elements of the offenses in question,

rather than the particular conduct proved at trial.        See Schmuck v. United States ,

489 U.S. 705, 716-17 (1989).




                                               -4-
       As we stated in Duran , striking, beating or wounding the victim requires

actual physical contact, an element which is not required for assault with a

dangerous weapon.      See id. , 127 F.3d at 915. Therefore, the subset factor is not

met. The statutory elements of the crimes involved in this case are the same as

those in Duran . Duran is binding precedent and precludes Mr. McMinn’s lesser

included offense argument.


       2. Sufficiency of the evidence

       Count Three of the indictment charged Mr. McMinn with assaulting Ms.

White, resulting in serious bodily injury. He argues that the evidence was

insufficient to prove that she suffered “serious bodily injury,” as that term is used

in 18 U.S.C. § 113(a)(6). The district court denied his motion for judgment of

acquittal.

       “We review a district court’s denial of a motion for judgment of acquittal

viewing all the evidence and drawing all reasonable inferences in the light most

favorable to the prosecution. The motion must be denied if any rational trier of

fact could have found each essential element of the crime beyond a reasonable

doubt.” United States v. Leos-Quijada , 107 F.3d 786, 794 (10th Cir. 1997)

(citations omitted).

       “Serious bodily injury” is defined for purposes of § 113(a)(6) by reference

to the definition found in 18 U.S.C. § 1365.         See 18 U.S.C. § 113(b)(2). Under

                                               -5-
that definition, “‘serious bodily injury’ means bodily injury which involves–(A) a

substantial risk of death; (B) extreme physical pain; (C) protracted and obvious

disfigurement; or (D) protracted loss or impairment of the function of a bodily

member, organ, or mental faculty.” 18 U.S.C. § 1365(g)(3). The government

contends this element was proved because Ms. White suffered extreme physical

pain as a result of the assault.

      Ms. White’s ordeal lasted nearly five hours. As a result of the beating she

received, her face turned black and swollen and her left eye swelled shut. She

suffered from a severe headache which left her sick to her stomach. She

developed bruises on her chin where Mr. McMinn grabbed her by the face and

forced her to look at him, on her back where he hit her with the gun butt, and on

her shins where he kicked her with cowboy boots. She had lumps on her head

from the beating and clots on the inside of her mouth. She missed several days of

work following the assault and her pain lasted several weeks. At the time of trial,

her face was still partially discolored and puffy. We agree with the government

that a reasonable jury could have found that Ms. White suffered “extreme physical

pain” within the meaning of § 1365(g)(3).




                                         -6-
     The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                  Entered for the Court

                                                  Michael R. Murphy
                                                  Circuit Judge




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