United States of America v. Matthew Stephen Watty

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW STEPHEN WATTY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00012-LHT-DLH-5)
Submitted: May 24, 2010 Decided: June 16, 2010
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Fredilyn Sison, Matthew
R. Segal, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant. Edward R. Ryan,
Acting United States Attorney, Charlotte, North Carolina, Don D.
Gast, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
After a jury trial, Matthew Stephen Watty was
convicted of one count of assault resulting in serious bodily
injury and aiding and abetting such assault, in violation of 18
U.S.C. §§ 113(a)(6), 1153, 2 (2006). Watty claims on appeal
that the district court abused its discretion in denying his
motion that the jury be instructed on the lesser included
offense of assault by striking, beating, or wounding. 18 U.S.C.
§ 113(a)(4). Finding no error, we affirm.
We “review a district court’s decision whether to give
a jury instruction for abuse of discretion.” See United
States v. Kennedy, 372 F.3d 686, 698 (4th Cir. 2004). A
defendant is not automatically entitled to a lesser-included
offense instruction. See United States v. Wright, 131 F.3d
1111, 1112 (4th Cir. 1997). Rather, the trial court should give
the instruction only if “the proof of the element that
differentiates the two offenses [is] sufficiently in dispute
that the jury could rationally find the defendant guilty of the
lesser offense but not guilty of the greater offense.” Id.
(internal quotation marks omitted).
The elements necessary for a conviction on assault
resulting in bodily injury are “(1) an intentional assault that
(2) results in serious bodily injury, committed (3) by an Indian
and (4) within Indian Country.” United States v. Littlewind,

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595 F.3d 876, 884 (8th Cir. 2010) (internal quotation marks
omitted). A serious injury is one that involves a substantial
risk of death, extreme physical pain, protracted and obvious
disfigurement or protracted loss or impairment of the function
of a bodily member, organ or mental faculty. 18 U.S.C.
§ 113(b)(2); 18 U.S.C. § 1365(h)(3) (2006).
Simple assault is a lesser included offense of assault
causing serious bodily injury. The differentiating element is
that one requires a specific degree of injury. In either case,
assault is a general intent crime. A specific intent to cause
harm is not necessary. See United States v. Calbat, 266 F.3d
358, 363 (5th Cir. 2001). All that is required is that the
defendant assaulted the victim and, in the case of 18 U.S.C.
§ 113(a)(6), evidence that the assault resulted in serious
bodily injury. United States v. Davis, 237 F.3d 942, 944-45
(8th Cir. 2001); United States v. Benally, 146 F.3d 1232, 1237-
38 (10th Cir. 1998). Aiding and abetting requires evidence
showing the defendant had the intent to facilitate the
commission of the offense, in this case, assault. See United
States v. Burgos, 94 F.3d 849, 873-74 (4th Cir. 1996).
We find the district court did not abuse its
discretion in denying the motion for the lesser-included
instruction of simple assault. The element that differentiates
the two offenses was not sufficiently in dispute and, at the

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very least, Watty was culpable as an aider and abettor to the
attack, which resulted in the victim receiving serious bodily
injuries. See United States v. Felix, 996 F.2d 203 (8th Cir.
1993). We find the cases Watty cites for the proposition that
he was engaged in a separate and unique assault to be clearly
distinguishable. We also find Watty’s argument concerning the
use of the rule of lenity in this context to be without merit.
Accordingly, we affirm the conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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