United States v. Jerome Jordan ( 2009 )

  •                                                          [DO NOT PUBLISH]
                        FOR THE ELEVENTH CIRCUIT
                          ________________________                  FILED
                                                           U.S. COURT OF APPEALS
                                 No. 08-15695                ELEVENTH CIRCUIT
                                                                 JUNE 22, 2009
                             Non-Argument Calendar
                                                              THOMAS K. KAHN
                     D. C. Docket No. 07-00261-CR-J-25-HTS
                    Appeal from the United States District Court
                        for the Middle District of Florida
                                  (June 22, 2009)
    Before BLACK, CARNES and FAY, Circuit Judges.
          Jerome Jordan appeals his conviction for assault resulting in serious bodily
    injury while under the maritime and territorial jurisdiction of the United States, in
    violation of 18 U.S.C. § 113(a)(6). On appeal, he argues the evidence was
    insufficient to support the jury’s finding the bodily injury was “serious” within the
    meaning of the statute. Jordan argues that, although he punched his coworker,
    Robert Grubbs, Jr., in the mouth, he did not inflict “serious bodily injury” under
    the meaning of 18 U.S.C. § 113(a)(6).
          A claim of insufficient evidence to convict is reviewed de novo. United
    States v. Nolan, 
    223 F.3d 1311
    , 1314 (11th Cir. 2000). We view the evidence in
    the light most favorable to the government and affirm the conviction if, based on
    this evidence, “any rational trier of fact could have found the essential elements of
    the crime beyond a reasonable doubt.” Id. In reviewing witness testimony, “[t]he
    jury gets to make any credibility choices, and we will assume that they made them
    all in the way that supports the verdict.” United States v. Thompson, 
    473 F.3d 1137
    , 1142 (11th Cir. 2006). “It is emphatically not within the province of an
    appellate court to reweigh the evidence and the credibility of the witnesses at trial.”
    United States v. Hernandez, 
    141 F.3d 1042
    , 1052 (11th Cir. 1998).
          Under 18 U.S.C. § 113(a)(6), it is a federal crime to commit an “[a]ssault
    resulting in serious bodily injury” within the maritime and territorial jurisdiction of
    the United States.1 Pursuant to § 113(b)(2), the term “serious bodily injury”
    applies as defined in 18 U.S.C. § 1365. That section defines “serious bodily
    injury” as a bodily injury involving:
           (A)    a substantial risk of death;
           (B)    extreme physical pain;
           (C)    protracted and obvious disfigurement; or
           (D)    protracted loss or impairment of the function of a bodily
                  member . . . .
    18 U.S.C. § 1365(h)(3). The parties agree Grubbs did not face a substantial risk of
    death. Thus, the issue is whether his injury qualified as a “serious bodily injury”
    under any of the remaining three subsections.
           Although our precedent does not provide much guidance as to what injuries
    constitute serious bodily injuries under subsections (B), (C), and (D), we have
    reviewed similar language in the Sentencing Guidelines. See United States v.
    339 F.3d 1238
    , 1246 (11th Cir. 2003) (discussing whether the victim’s
    injuries constituted “permanent or life-threatening bodily injuries” such that an
    enhancement under U.S.S.G. § 2A4.1(b)(2)(A) was appropriate). Under the
    Guidelines, “permanent or life-threatening bodily injuries,” include, inter alia,
    substantial impairments of the function of a bodily member that are likely to be
              Section 113 does not define “assault,” thus we apply the common law meaning of the
    term, and we have determined the statute encompasses assaults committed by battery. United
    States v. Williams, 
    197 F.3d 1091
    , 1096 (11th Cir. 1999).
    permanent, and “obvious disfigurement[s] that are likely to be permanent.”
    U.S.S.G. § 1B1.1 cmt. 1(J) (formerly U.S.S.G. § 1B1.1 cmt. 1(g)). We affirmed
    the sentencing court’s finding that the victim suffered “permanent or
    life-threatening bodily injuries,” because her facial symmetry was permanently
    altered and her nerve damage and scarring were likely to be permanent. Torrealba,
    339 F.3d at 1246. We also indicated that the district court’s determination of
    whether the victim’s injuries met this threshold was a factual finding. Id.
    (reviewing this determination for clear error).
          We find our precedent addressing whether injuries a victim suffered were
    “permanent and life-threatening” illuminating. We are also mindful that questions
    relating to the credibility of the evidence—including whether witness testimony
    was exaggerated—are issues for the jury to resolve, and we decline to reweigh the
    witnesses’ credibility on appeal. As to the ultimate question of whether Jordan
    inflicted “serious bodily injury” on Grubbs, we note the evidence showed, inter
    alia, that: Jordan’s punch knocked Grubbs to the ground; the punch split Grubbs’
    lip in half and chipped his tooth; Grubbs rated the pain an eight on a scale of one to
    ten; the punch injured three distinct layers of sensitive nerve endings on Grubbs’
    lip; the injury merited treatment with the strongest pain medication available; one
    witness testified there was a “decent amount” of blood, and another stated there
    was “a lot” of blood and he had never seen anyone be hit that hard; Jordan was
    “quite a bit bigger” than Grubbs; Grubbs would have a permanent scar on his lip;
    and Grubbs’ injury area would be permanently numb. Accordingly, there was
    sufficient evidence for a rational juror to conclude Grubbs’ injury was a “serious
    bodily injury,” and we affirm Jordan’s conviction.