United States of America v. Leon Boyd Messerly

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without oral**
argument. See Fed. R. App. P. 34(a)(2).
The Honorable Richard Mills, Senior United States District Judge for***
the Central District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEON BOYD MESSERLY,
Defendant-Appellant.
No. 09-30371
D.C. No. CR-09-39-GF-SEH
MEMORANDUM *
Appeal from the United States District Court
District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted May 4, 2010**
Seattle, Washington
Before: WARDLAW and GOULD, Circuit Judges, and MILLS, District Judge.***
Leon Boyd Messerly appeals the district court’s denial of his motion for a
judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure.
FILED
MAY 20 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

2
He contends that the Government failed to present sufficient evidence to support his
conviction for assault with a dangerous weapon. We have jurisdiction pursuant to 28
U.S.C. § 1291. We affirm.
A claim that there was insufficient evidence to obtain a conviction is subject to
de novo review. United States v. Garrido, 596 F.3d 613, 617 (9th Cir. 2010). We
must determine whether, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
In reviewing de novo the denial of the Defendant’s Rule 29 motion, the test to be
applied is the same as a challenge based on the sufficiency of the evidence. See
United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994).
Messerly contends that the Government failed to establish two of the elements
necessary to sustain a conviction under 11 U.S.C. §§ 1153(a) and 113(a)(3). First, it
failed to establish that Messerly assaulted the victim by intentionally striking her.
Additionally, Messerly alleges that the Government did not prove that he acted with
the specific intent to do bodily harm.
Regarding Messerly’s first argument, the victim’s account of the attack was
supported by sufficient evidence, including testimony from the victim that she saw
Messerly striking her, from the emergency room doctor concerning the nature of her
wounds, and from the DNA expert that blood containing the victim’s DNA was found

-- 2 of 3 --

3
on Messerly’s pants and shirt, which is consistent with the victim’s testimony
regarding how she was attacked. There is ample evidence from which a rational trier
of fact could have found that Messerly assaulted the victim by intentionally striking
her. See Jackson, 443 U.S. at 319.
Messerly also argues that he could not have formed the requisite specific intent
because he consumed a large amount of whiskey prior to the attack. Although
voluntary intoxication can be a defense to assault with a deadly weapon, a specific
intent crime, see United States v. Jim, 865 F.2d 211, 212 (9th Cir. 1989), we conclude
that sufficient evidence was presented which tended to show that Messerly was
capable of formulating the specific intent. Messerly was able to respond to questions
from law enforcement soon after the assault. Moreover, unlike his friend who also
had been drinking whiskey, Messerly was able to get up and walk without assistance
in the presence of the investigating officers. When viewed in a light most favorable
to the Government, the evidence establishes that Messerly was sufficiently coherent
to form the specific intent to attack the victim.
Because sufficient evidence supported Messerly’s conviction for assault with
a dangerous weapon, the district court committed no error in denying his motion under
Rule 29.
AFFIRMED.

-- 3 of 3 --