United States v. Johnson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4249
RICHARD JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-96-397)
Submitted: September 30, 1997
Decided: October 15, 1997
Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Elizabeth Ann Jex, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Richard A. Johnson appeals from his convictions and sentences for
assault with intent to commit murder in violation of 18 U.S.C.
§ 113(a)(1) (1994), assault with a dangerous weapon with intent to do
bodily harm in violation of 18 U.S.C. § 113(a)(3) (1994), and posses-
sion of a shank in violation of 18 U.S.C. § 113 (1994). Johnson's
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), addressing the sufficiency of evidence to sustain
Johnson's convictions and whether the district court properly
instructed the jury regarding each element of the offense charged.
Counsel asserts that there are no meritorious issues for appeal. John-
son was notified of his right to file an additional brief, but has not
done so. The Government elected not to file a responding brief. We
affirm.
To sustain a conviction, the evidence when viewed in the light
most favorable to the government, must be sufficient for a rational
trier of fact to have found the essential elements of the crime beyond
a reasonable doubt. See United States v. Brewer , 1 F.3d 1430, 1437
(4th Cir. 1993). This Court does not weigh the evidence or review the
credibility of witnesses in resolving issues of substantial evidence.
See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). The
evidence discloses that while incarcerated at the Lorton Reformatory
for first degree murder, Johnson repeatedly stabbed inmate William
Pace with a shank while correctional officers were escorting Pace
back to his cell. Pace's injuries were not life-threatening, but he was
hospitalized for two days. Government witnesses included an officer
who witnessed the entire incident, an officer who stopped the inci-
dent, and the physician who treated Pace. The officer who observed
the entire incident testified that Johnson raced towards him and Pace
holding a shank and that Pace, who was handcuffed, fell down after
Johnson started swinging the shank. Although Pace attempted to
defend himself, Johnson stabbed Pace repeatedly in the chest. The
assault ended upon the arrival of another officer. Johnson and three
other inmates testified on behalf of the defense and suggested that
Pace was the aggressor and that Johnson acted in self-defense.
2
Viewing the facts in the light most favorable to the Government,
and considering that we do not assess credibility of witnesses, we find
substantial evidence to support Johnson's convictions. The jury sim-
ply believed the correctional officers rather than Johnson and the
other inmates.
Johnson also contends that the court failed to properly instruct the
jury on the elements of each offense. Johnson did not challenge the
jury instructions at trial. Therefore, this issue is waived absent plain
error. See United States v. Reedy, 990 F.2d 167, 168 n.2 (4th Cir.
1993); see also Fed. R. Crim. P. 52(b). For error to be plain, it must
be an obvious violation that is prejudicial to the appellant. See United
States v. Olano, 507 U.S. 725, 732-35 (1993). Our review of the jury
instructions in question discloses that the court adequately instructed
the jury on the elements of the offenses. We therefore find no plain
error.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Appellant's
convictions and sentences. This court requires that counsel inform his
client in writing of his right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. Counsel's motion must state that a copy thereof was served
on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court, and
oral argument would not aid the decisional process.
AFFIRMED
3