                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-7024
          v.                                            E.D. Oklahoma
 BILLY RAY FLYNN, also known as                   (D.C. No. 05-CR-75-W H)
 Billy Ray Abbott,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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        This order and judgment is not binding precedent except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Billy Ray Flynn appeals from his conviction claiming the district court

improperly instructed the jury. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

                                   I. Background

      Following a trial, a jury convicted Flynn of assault with intent to commit

murder in Indian country in violation of 18 U.S.C. §§ 113(a)(1), 1151 and 1153.

At trial, the government produced evidence showing both Flynn and the victim,

Sherry England, were drinking throughout the day of the incident. England

testified: she served a bowl of chili to Flynn that afternoon in her kitchen; Flynn

threw the chili in her face, struck her on her head and left the room; after she

wiped the chili out of her eyes, she grabbed a knife sharpener and went to

investigate Flynn’s whereabouts; as she opened the front screen door, Flynn

struck her in the chest with the sharp end of a pick axe.

                                   II. Discussion

      Flynn claims the court improperly refused to instruct the jury on his

defense of voluntary intoxication. “W e review de novo whether the district court

properly instructed on the applicable law, and we review the court's decision to

give or deny a particular instruction for an abuse of discretion.” Thom pson v.

United States, 223 F.3d 1206, 1210 (10th Cir. 2000).

      Voluntary intoxication can be a defense to a specific intent crime if the

defendant was so intoxicated that he could not form the specific mens rea of the

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crime charged. W e agree with the district court the evidence at trial did not

warrant an instruction on voluntary intoxication. In United States v. Jackson,

although there was evidence the defendant “habitually used crack cocaine,” the

district court nevertheless properly refused to instruct the jury on voluntary

intoxication where there was no evidence the defendant’s “mental capacity was so

impaired by his voluntary ingestion of crack cocaine that he was unable to form

the specific intent necessary to commit the crimes . . . .” 213 F.3d 1269, 1294

(10th Cir. 2000), vacated on other grounds, 531 U.S. 1033 (2000). The same

result obtains in this case. Flynn correctly points to evidence of his alcohol

consumption the day of the crime. However, there was no evidence suggesting

the intoxication affected Flynn’s mental capacity. See United States v. Boyles, 57

F.3d 535, 542 (7th Cir. 1995) (“A bald statement that the defendant had been

drinking or was drunk is insufficient — insufficient not because it falls short of

the quantum of evidence necessary, but because it is not evidence of the right

thing. In order to merit an intoxication instruction . . . the defendant must point

to some evidence of mental impairment due to the consumption of intoxicants

sufficient to negate the existence of the [specific] intent[.]”) (quotation and

citation omitted).




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      During trial, defense counsel did not elicit testimony about Flynn’s

behavior, physical or mental condition, or other indicators of impairment. 1 The

district court properly ruled. Although there was evidence Flynn consumed

alcohol the day of the crime, “there was absolutely no evidence at all about his

level of impairment.” (R. Vol. II at 170.)

      AFFIRM ED.

                                              ENTERED FOR THE COURT


                                              Terrence L. O’Brien
                                              Circuit Judge




      1
        Flynn’s counsel argues Flynn mistakenly believed the knife sharpener
used by England was a knife raising an inference of intoxication. This is utter
speculation as no evidence was adduced at trial to support the claim. See United
States v. M archese, 46 F.3d 1020, 1023 (10th Cir. 1995) (“Counsels’ arguments
on [the] motion [to dismiss the indictment] did not constitute the presentation of
evidence for the purpose of determining guilt or innocence . . . .”).

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