                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                       PUBLISH
                                                                              DEC 10 1997
                      UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                  Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                         No. 96-4170
 DENNIS HATATLEY,

       Defendant-Appellant.



             APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF UTAH
                          (D.C. No. 95CR-252S)


Scott M. Matheson, Jr., United States Attorney (David J. Schwendiman, First Assistant
United States Attorney with him on the brief), Salt Lake City, Utah, for
Plaintiff-Appellee.

Deirdre A. Gorman of Farr, Kaufman, Sullivan, Gorman, Jensen, Medsker & Perkins,
Ogden, Utah, for Defendant-Appellant.


Before BALDOCK, McWILLIAMS, and EBEL, Circuit Judges.


BALDOCK, Circuit Judge.


      Defendant Dennis Hatatley seeks reversal of a jury verdict finding him guilty of

voluntary manslaughter. On appeal, Defendant argues the district court: 1) improperly
denied his request for an involuntary manslaughter instruction; 2) violated his right to due

process by allowing the government to remove the phrase “aiding and abetting” from the

indictment prior to submitting the case to the jury; 3) committed plain error by not

submitting a jury instruction on aiding and abetting; 4) improperly allowed the

government to argue aiding and abetting by tendering an instruction regarding causation

to the jury; and 5) improperly implied that he had a duty to safeguard the victim by

tendering an instruction regarding duty to safeguard to the jury. Our jurisdiction arises

under 28 U.S.C. § 1291. We affirm.

                                             I.

       On Friday, December 15, 1995, Defendant and Curtis Benally, both enrolled

members of the Navajo tribe, spent the afternoon drinking and driving near Cortez and

Telluride, Colorado. Later that day, Defendant and Benally drove to Montezuma Creek,

Utah, where they stayed until dark. Prior to leaving Montezuma Creek, Defendant and

Benally bought two six-packs of beer. The two men then left Montezuma Creek and

drove Southwest in search of Hyrum Maryboy. A short time later, Defendant and Benally

arrived at a compound consisting of a white home where Maryboy lived, a shade house

and a hogan1 occupied by Billy Shorty. Benally knocked on Maryboy’s door. Maryboy’s

mother, Bessie Keith, told Benally that he was not home. The two men then approached

the hogan. Meanwhile, the victim, Kee Smith, arrived on the scene with Curtis Benally’s


       1
              A “hogan” is a traditional Navajo dwelling.

                                             2
sister, Marie Tsosie. Smith and Tsosie had been drinking on the way to Shorty’s, and

Smith was heavily intoxicated. Smith continued to drink after arriving outside Shorty’s

hogan.

         Shortly after Smith arrived outside Shorty’s hogan, Defendant was sitting in

Benally’s car drinking when Smith became belligerent and pulled him out of the car.

Defendant and Smith began to fight. At one point, Defendant was on the ground being

kicked by Smith. The tables turned, however, when Benally entered the fray on

Defendant’s behalf. The record reveals that at this point, Smith was on the ground

attempting to block kicks directed toward him by both Defendant and Benally. The entire

fight outside Shorty’s hogan between Defendant, Benally and Smith apparently lasted no

longer than five minutes and resulted in only minor injuries to Defendant and Smith.2

(See Tr. Rec. Aug. 12 at 782). Indeed, the record suggests that after the fight broke up,

the three men made some sort of amends and continued drinking together. (Tr. Rec. Aug.

13 at 954).

         Sometime after the fight, Defendant and Benally forced Smith into Benally’s car

and left the scene.3 Marie Tsosie followed the three men in Smith’s pickup. Fearful that

         2
               When asked about Defendant and Smith’s injuries, Marie Tsosie testified
that she noticed that Smith had a bloody mouth and Defendant had a bloody nose. She
testified that Defendant and Smith had no other visible injuries.
         3
              The testimony on this point varies. Marie Tsosie testified that Smith “went
in the car.” However, other testimony indicates that Defendant and Benally forced a
struggling Smith into the car. Benally, in a report given to an FBI Agent claims that
Defendant alone pulled Smith into the car by his hair.

                                              3
the pickup would get stuck in the sandy soil, Tsosie passed Benally’s vehicle in order to

gain more speed. Benally then stopped the car and the three men got out. At this point,

Tsosie was some distance ahead of the three men and did not observe what happened

once Benally’s car stopped. Although Defendant and Benally disagree on what happened

next, Smith was clearly ejected from the vehicle and left drunk and beaten in the freezing

desert. The record also suggests that Defendant and Benally resumed beating Smith after

he exited the vehicle.4

       Around noon on Saturday, December 16, 1995, Rose and Frank Harrison found the

victim’s body, frozen and covered with sand, in the bottom of the desert wash. The

Harrison’s immediately notified several emergency medical technicians (EMT’s) who

were training in Montezuma Creek. The EMT’s responded to the scene to determine

whether the victim was living, and notified law enforcement agencies. Shortly thereafter

and throughout the day, officers from the San Juan County Sheriff’s Department, the

Navajo Department of Public Safety, and the Federal Bureau of Investigation secured and

investigated the site where the body was found. Officials transported the victim’s body to

the Utah State Medical Examiner and an autopsy followed.




       4
              Defendant and Benally were apparently the only people present when Smith
was ejected from Benally’s car. Not surprisingly, Benally says that Defendant pulled
Smith out of the car and began beating Smith. Equally predictable, Defendant blames
Benally for ejecting Smith from the vehicle and abandoning him. Regardless, the record
suggests that both Defendant and Benally participated in the event.

                                             4
       The Government charged Defendant with second degree murder and as an aider

and abettor for the death of Kee Smith pursuant to 18 U.S.C. § 2, § 1111, and § 1153(a).

At trial, the government introduced expert testimony by Dr. Todd Grey that Smith died

from multiple blunt force injuries to the head and body. Dr. Grey opined that Smith’s

beating resulted in a lacerated liver and subdural hematoma that ultimately caused his

death. The defense produced two experts who reviewed Dr. Grey’s findings and reached

different conclusions. Dr. Robert Rothfeder, an attorney and part-time emergency room

physician, acknowledged the injuries noted by Dr. Grey but did not feel they caused

Smith’s death. Instead, Dr. Rothfeder opined that the cause of death was hypothermia.

Dr. Heinz Karnitschnig, a retired pathologist, also testified on behalf of Defendant. Dr.

Karnitschnig agreed with Dr. Rothfeder that the injuries inflicted by the beating were not

severe enough to cause death. He further agreed that the cause of death was hypothermia.

All three doctors agreed, however, that the subdural hematoma and lacerated liver were

serious and possibly fatal injuries.

       Prior to submission to the jury, the government dropped the statutory aiding and

abetting charge against Defendant, leaving the jury to consider only whether he was a

principal. Defendant proffered a jury instruction for involuntary manslaughter. The

district court decided the evidence did not support the instruction and refused to submit it

to the jury. However, the district court did submit an instruction on the lesser included




                                             5
offense of voluntary manslaughter. The jury returned a verdict finding Defendant guilty

of voluntary manslaughter. The district court sentenced him to 46 months in prison.

                                             II.

                                             A.

       Defendant’s first argument on appeal is that the district court abused its discretion

by refusing to instruct the jury on involuntary manslaughter. More specifically,

Defendant argues that the evidence presented at trial and this Court’s prior decisions

supported the instruction and mandate reversal. We disagree.

       A criminal defendant is “always entitled to an instruction giving his theory of

defense if supported by the evidence.” United States v. Moore, 108 F.3d 270, 273 (10th

Cir. 1997). “The decision of whether there is enough evidence to justify a lesser

included offense charge rests within the sound discretion of the trial judge.” United

States v. Chapman, 615 F.2d 1294, 1298 (10th Cir. 1980). The trial judge does not abuse

his discretion by refusing to instruct on a lesser included offense when the evidence

before him provides no rational basis upon which the jury could find the defendant guilty

of the lesser offense. Id. at 1299.

       Involuntary manslaughter is defined as “the unlawful killing of a human being

without malice . . . [i]n the commission of an unlawful act not amounting to a felony, or

in the commission in an unlawful manner, or without due caution or circumspection, of a

lawful act which might produce death.” United States v. Pino, 606 F.2d 908, 916 n. 10


                                             6
(10th Cir. 1979). Defendant argues that because the victim was the initial aggressor, any

injuries he inflicted upon the victim were done so in self-defense. Thus, Defendant

suggests that his actions against the victim were lawful acts committed in an unlawful

manner which support an instruction on involuntary manslaughter.

       In so arguing, Defendant attempts to sever his involvement with the victim after

the initial fight at Billy Shorty’s home. The record, however, indicates that Defendant’s

actions toward the victim continued beyond the initial confrontation. The evidence

showed that after Defendant and the victim fought the first time, Defendant and Benally

dragged the victim against his will into Benally’s car. The evidence also suggests that

Defendant and the victim had another altercation in the car, that Defendant and Benally

forcibly removed the victim from the car, further beat him, and left him badly beaten and

shirtless in a freezing, remote desert wash.5 Thus, even assuming Defendant’s actions

toward the victim during their initial confrontation were lawful, he clearly entered the

realm of unlawfulness when he and Benally forced the victim into Benally’s car, drove

him away, resumed beating him and abandoned him in the wash.




       5
              Throughout his brief, Defendant insists that the desert wash is a frequently
traveled “thoroughfare” where Defendant and Benally could have reasonably expected a
passerby to pick up the victim and carry him to safety. Defendant’s description is, at best,
a stretch. While the record contains testimony describing the wash as a local
“thoroughfare,” an objective reading suggests the area is remote and not frequently
traveled.

                                             7
       In the alternative, Defendant argues that even if he did unlawfully assault the

victim, that assault is not a felony. Thus, Defendant contends he was entitled to an

involuntary manslaughter instruction because the victim died as the result of Defendant

committing an unlawful act not amounting to a felony. To the contrary, the record

demonstrates that Defendant’s actions against the victim were felonious.

       Defendant correctly notes that simple assault is not a felony. However,

Defendant’s conduct constituted aggravated assault, which is a felony. United States v.

Tissnolthtos, 115 F.3d 759, 763 (10th Cir. 1997) (aggravated assault, a felony, is an

assault resulting in serious bodily injury). The record reveals that Defendant and Benally

repeatedly kicked and hit the victim. The victim’s blood was found on both Defendant

and Benally’s shoes. Samples taken from Benally’s car contained forcibly removed hair

belonging to the victim. Furthermore, Defendant’s participation helped cause the victim

to suffer numerous abrasions and lesions, a possibly fatal subdural hematoma and a

possibly fatal lacerated liver. These injuries constitute serious bodily injury. See United

States v. Dennison, 937 F.2d 559, 562 (10th Cir. 1991).

       The decision of whether the evidence supported an involuntary manslaughter

instruction belonged to the district court. The district court found that the evidence did

not support the instruction. After a thorough review of the record, we conclude that based

on the evidence produced at trial, no rational jury could have found Defendant guilty of

involuntary manslaughter and acquitted on the greater offenses of second degree murder


                                              8
and voluntary manslaughter. Thus, the district court did not abuse its discretion by

refusing to instruct the jury on involuntary manslaughter.

                                             B.

       Defendant’s second argument on appeal is that the district court erred when it

struck the government’s aiding and abetting charge from the indictment. Specifically,

Defendant claims the court’s action violated his due process rights by depriving him of

the opportunity to present an intoxication defense to the jury on the aiding and abetting

charge. Defendant’s argument is without merit.

       The government charged Defendant with second degree murder and also as an

aider and abetter. At trial, Defendant intended to present expert testimony that he was too

intoxicated to formulate the specific intent needed to be an aider and abetter. The

government asked the district court to strike the aiding and abetting charge and chose to

proceed solely on the theory that Defendant was a principal. Accordingly, the district

court struck the aiding and abetting charge from the indictment.

       Defendant now contends that his due process rights were violated because the

government dropped the aiding and abetting charges against him and only prosecuted him

as a principal. In support, Defendant argues that this was obviously an improper tactic by

the government to keep Defendant’s expert from testifying that he could not form the

specific intent to be an aider and abetter. Regardless of the government’s reason for

dropping the charge, Defendant certainly has no due process right to be tried as an aider


                                             9
and abetter. See United States v. Cooley, 1 F.3d 985, 997 (10th Cir. 1993) (“The

government is entitled to pursue its own theory of criminal responsibility . . . and is not

required to use or be subjected to standards under another theory even though

available.”). Furthermore, once the government dropped the aiding and abetting charges,

there was no need for the expert to testify. At that point, the government was proceeding

against Defendant as a principal on theories of second degree murder and voluntary

manslaughter. Indeed, expert testimony on intoxication would be irrelevant, if not

entirely improper, in relation to general intent crimes such as second degree murder and

voluntary manslaughter where intoxication is no defense. See United States v. Sands,

968 F.2d 1058, 1064 (10th Cir. 1992) (voluntary intoxication no defense to general intent

crime).

                                              C.

       Defendant’s next ground for reversal is that the district court erred by not

instructing the jury on aiding and abetting after the aiding and abetting charge was struck

from the indictment. The thrust of this argument seems to be that because the evidence

presented to the jury suggested Defendant was only an aider and abettor and not a

principal, the district court should have instructed the jury on aiding and abetting. We

disagree.

       Defendant did not object when the district court failed to instruct the jury on aiding

and abetting and did not offer a final instruction on the theory. Accordingly, we review


                                             10
for plain error. Fed. R. Crim. P. 52(b). For Defendant to prevail on his plain error

argument, he must “show clear or obvious error that affected his substantial rights, and

that seriously affected the integrity of the judicial proceedings.” United States v. Jones,

80 F.3d 436, 438 (10th Cir. 1996). After the district court struck the aiding and abetting

charge, the government was bound to pursue a verdict against Defendant as a principal.

Undoubtedly, Defendant could properly argue to the jury that the government failed to

prove he was liable as a principal for Smith’s death. However, once the aiding and

abetting charge was dropped, Defendant had no right to have the jury instructed on a

crime with which he was no longer charged. The district court committed no plain error

when it refused to tender an instruction on aiding and abetting.

                                             D.

       Defendant’s fourth point of error is that by improperly tendering instruction

number 28 to the jury, the district court allowed the government to argue aiding and

abetting, while the defense was prevented from defending against the theory.6 Instruction

number 28 reads as follows:

            In your consideration of the Government’s burden to prove that the
       Defendant’s conduct caused Kee Smith’s death, you are instructed as
       follows:




       6
          Defendant also argues that instruction number 28 incorrectly states the law
pertaining to aiding and abetting. Because we conclude instruction number 28 does not
involve aiding and abetting, we need not address this contention.

                                             11
       When the conduct of two or more persons contributes concurrently as
       proximate causes of death, the conduct of each person is a proximate cause
       regardless of the extent to which each contributes to the death.

Defendant argues that the words “concurrently” and “conduct of each person” essentially

allowed the government to argue that he was an aider and abetter in addition to arguing

that he was a principal. We disagree.

       When reviewing a challenge to jury instructions, we consider the instructions as a

whole and presume the jury followed those instructions. Cooley, 1 F.3d at 997.

Defendant contends that instruction number 28 allowed the government to argue aiding

and abetting to the jury. Defendant misconceives the nature of the legal principles

involved. As we explained in Cooley, contributory causation and aiding and abetting are

two different principles. Contributory causation addresses the situation where more than

one person’s actions contribute to an unlawful result. In such a situation, each

individual’s act is sufficient to render him culpable as a principal for the harm caused.

Aiding and abetting, on the other hand, addresses the situation where one person commits

the unlawful act, and a second person intentionally assists him in reaching his unlawful

goal. The second person, however, did not actually commit the final physical act causing

the harm. Instead, with the intent to help the principal reach his ultimate goal, the aider

and abetter assists by engaging in a different act which aids or assists the principal. Thus,

aiding and abetting allows a jury to hold the aider and abetter responsible to the same

extent as the principal, even though his act was not the ultimate cause of the harm.


                                             12
       Instruction number 28 addresses contributory causation. After dropping the aiding

and abetting charges, the government advanced the theory that Defendant was liable as a

principal for the murder of the victim. Therefore, the jury had to find that Defendant’s

actions proximately caused the victim’s demise. The district court’s instruction properly

charged the jury with finding that Defendant himself performed the acts necessary to be

liable as a principal and did not allow the jury to convict him as an aider and abetter.

Accordingly, the district court committed no reversible error by submitting instruction

number 28 to the jury.

                                             E.

       Defendant’s final argument is that by tendering instruction number 27 to the jury,

the district court improperly implied that he had a duty to safeguard the victim “when in

fact he did not.” Instruction number 27 reads as follows:

       In your consideration of the government’s burden to prove that the
       defendant’s conduct caused Kee Smith’s death, you are instructed as
       follows:

       If the defendant’s conduct placed Kee Smith in a position of danger, and the
       defendant failed to safeguard Kee Smith, the defendant’s conduct should be
       regarded as having caused the death of Kee Smith.

The general thrust of Defendant’s attack on this instruction is that Benally is the person

who harmed the victim and because he did not act in concert with Benally, Defendant had

no duty to safeguard the victim. We disagree.




                                             13
       When a person puts another in a position of danger, he creates for himself a duty to

safeguard or rescue the person from that danger. See Wayne R. Lafave & Austin W.

Scott, Jr., Criminal Law § 3.12, at n.84 (2d. ed. 1986). Thus, when a person places

another in danger, fails to safeguard or rescue him and he dies, such omission is sufficient

to support criminal liability. See Id.

       The record does not support Defendant’s position. The record is replete with

evidence tending to show Defendant played a part in ejecting the victim from Benally’s

car7, that Defendant persisted along with Benally in further beating and kicking the victim

and that Defendant made no attempt to keep the victim from being left beaten and

shirtless in the freezing desert wash. After placing the victim in danger, Defendant had a

duty to rescue him from that danger. Defendant made no attempt to comply with this

duty. We have carefully reviewed and considered the instructions as a whole and

conclude that the district court did not err in submitting instruction number 27 to the jury.



       For the foregoing reasons, the district court’s judgment is

       AFFIRMED.




       7
               Indeed, in a statement given to the FBI, Defendant admitted that “we threw
that guy off right there.”

                                             14
96-4170, United States v. Hatatley

EBEL, Circuit Judge, dissenting



        As noted by the majority, a trial court does not abuse its discretion when it denies

an instruction as to a lesser included offense when there is no evidence upon which a

reasonable jury could find the defendant guilty of that lesser offense. See United States v.

Chapman, 615 F.2d 1294, 1298 (10th Cir. 1980). What’s more, “[o]nly when an

appellate court is convinced that the evidence issues are such that a rational jury could

acquit on the charged crime but convict on the lesser crime may the denial of a lesser

included offense charge be reversed.” U.S. v. Moore, 108 F.3d 270, 272 (10th Cir. 1997)

(citing Keeble v. United States, 412 U.S. 205 (1973)) (emphasis in original). In

reviewing the denial of a jury instruction, “we must give full credence to [the]

defendant’s testimony.” United States v. Smith, 63 F.3d 956, 965 (10th Cir. 1995).

Because my review of the record reveals evidence upon which a reasonable jury could

have found Defendant Hatatley guilty of the lesser included offense of involuntary

manslaughter, yet not guilty of the offense of voluntary manslaughter, I conclude that the

district court erred in refusing to give an instruction on involuntary manslaughter to the

jury.

        I first emphasize that in this case the Government explicitly chose not to charge

Defendant with aiding and abetting in the killing of Kee Smith. In making this tactical

move the Government undertook to hold Defendant accountable only for his own actions
and accepted the burden of proving beyond a reasonable doubt not only that Defendant’s

actions caused the death of Kee Smith, but also that those causative actions meet the

statutory requirements of voluntary manslaughter.

       In order for the jury to find Defendant guilty of involuntary manslaughter, but not

voluntary manslaughter, the evidence would have to be such that it would have been

possible for the jury reasonably to conclude that Defendant killed Smith by “the

commission of an unlawful act not amounting to a felony, or in the commission in an

unlawful manner, or without due caution and circumspection, of a lawful act which might

produce death.” 18 U.S.C. § 1112(a) (1984). Based upon this record, there is at least one

way in which the jury could have made such a determination.

       On the evidentiary record before it, the jury could have found that Defendant

caused Smith’s death while performing a lawful act, namely self-defense, in an unlawful

manner. A killing done in self-defense but by use of excessive force qualifies as

involuntary manslaughter. See United States v. Begay, 833 F.2d 900, 901-03 (10th Cir.

1987) (holding that where evidence is present that killing was done in self-defense but

force used was criminally negligent, instruction on involuntary manslaughter is proper).

The majority admits that Smith’s beating of Defendant at the hogan could have been

lawful, in that it was arguably done in self-defense. The majority goes on to say that even

assuming the lawfulness of Defendant’s actions in front of the hogan, because the

evidence shows that Defendant further beat Smith in the car and in the wash, he “clearly


                                             2
entered the realm of unlawfulness.” This statement ignores the possibility that the jury

could have found (a) Defendant’s lawful act in front of the hogan (self-defense),

performed in an unlawful manner (excessive force amounting to criminal negligence),

caused all of the serious bodily injury that lead to Smith’s death and (b) Defendant’s

subsequent unlawful assault of Smith in the car and in the wash either did not cause

Smith’s death or did not cause serious bodily injury to Smith and thus did not rise to the

level of felonious assault.

       The record strongly suggests that it was Smith who initiated the fight with

Defendant at the hogan. Witness Marie Tsosie testified that Smith was looking for a fight

and that Smith hit Defendant first. (See Tr. Rec. Aug. 12 at 779, 795-96.) Defendant told

officials that someone jerked him out of a car and began hitting him, at which point

Defendant began to fight back. (See Tr. Rec. Aug. 13 at 890.) Defendant also told

officials that he kicked Smith out of anger because Smith had hit him first. (See Tr. Rec.

at 901.) Until Benally entered the fray, the record suggests that Defendant was in the

process of receiving a severe beating from Smith. (See id. at 961-62.) Thus, the jury

could reasonably have found that the blows Defendant administered to Smith during that

altercation were undertaken in self-defense, albeit with unlawfully excessive force.

       The majority asserts that the fight outside the hogan resulted in only minor injuries

to the Defendant. However, that views the evidence most favorable to the Government.

When evaluating whether a lesser included charge should be submitted to the jury, we


                                             3
have to ask whether there was evidence upon which that charge could be predicated.

Here, there certainly was evidence upon which a jury could conclude that the fatal injuries

were administered at the hogan during the stomping of Defendant. Indeed, his fatal

injuries were internal and not inconsistent even with Marie Tsosie’s testimony.

       The record is not clear as to the severity of the blows, if any, delivered by

Defendant to Smith in the car and in the wash. Hair that had been yanked from Smith’s

head was found in Benally’s car, but the record is not clear whether Benally or Defendant

was responsible for that. (See Tr. Rec. Aug. 9 at 543.) Benally and Defendant told

investigators that there was some fighting between Smith and Defendant both in the car

and in the wash, but the record is equivocal as to the severity of the fighting and the

relative degrees of Benally’s and Defendant’s participation in that fighting. (See Tr. Rec.

Aug. 13 at 900, 972.) Even though Defendant’s lawful act of self-defense may have

terminated at the point when he and Benally placed Smith in Benally’s car, the jury could

easily have found on this record that all of the serious bodily injury leading to Smith’s

ultimate death had been done to Smith at the hogan and that none of the blows applied to

Smith’s person after that were of a nature to result in serious bodily injury or to cause

Smith’s death. In short, the jury could have found that after Smith’s beating at the hogan

his demise was a foregone conclusion, and that nothing that happened afterward affected

or accelerated Smith’s fate -- e.g. that Smith received the ruptured liver and head

hematoma injuries during the fight at the hogan and that those injuries caused his death.


                                              4
In this way the jury could have found that Defendant caused Smith’s death during the

performance of the lawful act of self-defense done with unlawfully excessive force.

Thus, I conclude that Defendant was entitled to an involuntary manslaughter instruction.

      For the above reasons, I conclude that it was reversible error for the district court

to deny Defendant’s requested jury instruction on involuntary manslaughter.

Accordingly, I respectfully DISSENT.




                                             5
