United States v. Johnnie Lee Bowman

720 F.2d 1103 14 Fed. R. Evid. Serv. 952 UNITED STATES of America, Plaintiff-Appellee, v. Johnnie Lee BOWMAN, Defendant-Appellant. No. 82-1461. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 10, 1983. Decided Nov. 22, 1983. Susan A. Ehrlich, Phoenix, Ariz., for plaintiff-appellee. Colin F. Campbell, Phoenix, Ariz., for defendant-appellant. Appeal from the United States District Court for the District of Arizona. Before TANG and ALARCON, Circuit Judges, and TAYLOR * , District Judge. TANG, Circuit Judge. 1 Johnnie Lee Bowman, Jr. was indicted for assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. Secs. 1153 (1976) and 113(c)(1948). The jury returned a verdict of guilty upon the lesser included offense of assault by striking, beating or wounding in violation of 18 U.S.C. Sec. 113 (d) (1948), a misdemeanor. Bowman contends on appeal that the district court committed reversible error by allowing evidence of a prior assault conviction and by refusing to give certain jury instructions relating to unconsciousness and self-defense. We find no error and affirm the conviction. 2 The record shows that on August 13, 1981, Bowman…

Johnnie Lee Bowman, Jr. was indicted for assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. §§ 1153 (1976) and 113(c)(1948). The jury returned a verdict of guilty upon the lesser included offense of assault by striking, beating or wounding in violation of 18 U.S.C. § 113 (d) (1948), a misdemean- or. Bowman contends on appeal that the district court committed reversible error by allowing evidence of a prior assault conviction and by refusing to give certain jury instructions relating to unconsciousness and self-defense. We find no error and affirm the conviction.

The record shows that on August 13, 1981, Bowman arrived at the home of Lena Descheenie, where he observed his estranged common-law wife, Yvonne Des-cheenie. The government maintained that Yvonne Descheenie was in an outhouse and that Bowman forced his way into the outhouse and pulled her out, threatening to take her hostage. According to the government’s theory, Bowman put a knife to Yvonne’s throat when she resisted and began to cry for help. Bowman’s explanation at trial was that Yvonne started to scream upon seeing him approach and that he merely put his arms around her in an…

dissenting.

I respectfully dissent.

The district court’s refusal to give instructions covering the factual defense presented to the jury compels reversal.

A clear understanding of the conflicting versions of the facts presented by the government and the defense is essential to assess the prejudicial impact of the district court’s erroneous ruling.

I.

A. Summary of the Government’s Evidence

On August 13, 1981, at 10:30 a.m., Yvonne Descheenie was standing in the outhouse near her mother’s home when she saw Johnnie Lee Bowman, Jr. approaching the door. She remained inside because she was afraid of Bowman. Bowman asked her to open the door. Ms. Descheenie did nothing and remained silent. Bowman grabbed the door and forced it open by breaking the latch. Bowman told her he was going to take her hostage and that she had gotten him into a lot of trouble. Ms. Descheenie refused to go with him. Bowman then grabbed her and tried to push her outside.

Ms. Descheenie held onto a board next to the door. Bowman then removed a knife from his pocket and held it first in his left hand and then in his right hand. He placed the knife blade to Ms. Descheenie’s throat. She struggled and began to…