United States v. Burdon Lester , 283 F. App'x 421 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3583
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of North Dakota.
*
Burdon Fabron Lester, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 10, 2008
Filed: July 10, 2008
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Before SMITH, BOWMAN and GRUENDER Circuit Judges.
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PER CURIAM.
Burdon Fabron Lester was convicted after a jury trial of assault resulting in
serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153, and assault
with a dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153. The
district court1 sentenced him to 51 months’ imprisonment. Lester appeals his
conviction, arguing that the evidence was insufficient to sustain the jury’s verdict. We
affirm.
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
On March 23, 2007, Lester and his brother, Charles, went to the home of
Chandler and Patty Dwarf. Patty was the Lesters’ sister, and she and her husband
lived in Cannon Ball, North Dakota, on the Standing Rock Indian Reservation. Lester
and Chandler consumed alcohol over several hours, and Charles eventually left. A
verbal dispute erupted between Lester and Chandler over Chandler’s treatment of
Patty. Lester left the Dwarfs and visited their neighbor, Lyman Black Cloud. The
dispute continued in the yard between the Dwarfs’ home and Black Cloud’s home as
Lester and Chandler yelled at each other. Black Cloud and Patty observed that
Chandler had something “shiny” in his hand while he was standing on his porch.
Chandler pushed Patty to the ground, and Lester approached Chandler. The two men
met in the middle of the yard and continued yelling at each other. Black Cloud and
Patty both claimed that Chandler did not have a knife at this point. Chandler also
testified that he did not have a knife during the encounter.
Lester and Chandler began to fight while Black Cloud attempted to intervene.
Chandler felt a scratch across his face and saw a large amount of blood on his shirt.
Black Cloud then noticed that Lester was holding a knife. Neither Black Cloud nor
Patty saw Chandler holding a knife after the encounter. Chandler was hospitalized,
and the scratch he received during the fight required twenty-seven stitches and
resulted in a permanent scar. Lester fled to the nearby city of Solen and hid from
police until he was arrested.
At trial, Lester testified that Chandler first revealed a knife and initially swung
at Lester five or six times. Lester said he then pulled a flip-type knife from his belt
and slashed at Chandler, asserting that he did not intend to strike Chandler. Instead,
Chandler ran into the knife as Lester swung at him. Lester testified that he gave his
knife to Black Cloud to hide after the incident.
In the statement of issues section of his brief, Lester identifies as an issue
whether the Government failed to present sufficient evidence to the jury to sustain his
two convictions. The statement of issues lists four cases as the most apposite cases,
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but the corresponding argument section of his brief then simply recites the facts,
making no argument whatsoever contesting the sufficiency of the evidence. The
argument section also cites no case law. “[U]ndeveloped issues perfunctorily
aver[r]ed to in an appellate brief are waived.” United States v. McAdory, 501 F.3d
868, 870 n.3 (8th Cir. 2007) (citation omitted). Accordingly, we find that any
argument regarding the sufficiency of the evidence to support the conviction is
waived. Even if we were inclined to address it, we would find that there was
sufficient evidence to sustain the convictions.
Lester’s brief does, however, argue that the Government failed to present
sufficient evidence to the jury that he did not act in self-defense. “We review de novo
the sufficiency of the evidence and view the evidence in the light most favorable to
the verdict, giving it the benefit of all reasonable inferences.” United States v. Spears,
454 F.3d 830, 832 (8th Cir. 2006) (italics omitted). “[W]e do not weigh the evidence
or assess the credibility of the witnesses.” Id. “Instead, the jury has sole
responsibility for resolving conflicts or contradictions in testimony, and we must
resolve credibility issues in favor of the verdict.” Id.Once a defendant produces evidence on the issue of self-defense, the
Government must prove beyond a reasonable doubt that the defendant did not act in
self-defense. United States v. Milk, 447 F.3d 593, 598 (8th Cir. 2006). In this case,
the district court instructed the jury:
I[f] a person reasonably believes that force is necessary to protect
himself from what he reasonably believes to be unlawful physical harm
about to be inflicted by another and uses such force, then he acted in
self-defense.
However, self-defense which involves using force likely to cause
death or great bodily harm is justified only if the person believes that
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such force is necessary to protect himself from what he reasonably
believes to be a substantial risk of death or great bodily harm.
Final Instruction No. 8.
Lester claimed that Chandler swung at him with a knife before Lester pulled out
his own knife in self-defense. But the jury was also presented with contradictory
evidence. Although Black Cloud and Patty testified that Chandler had something
“shiny” in his hand when he stood on the porch, they both testified that he did not
have a knife during his encounter with Lester in the yard. Chandler also denied
having a knife at any time. The jury was confronted with conflicting testimony and
reasonably could have found Chandler, Patty and Black Cloud to be credible. After
the scuffle, Lester gave his knife to Black Cloud to hide and fled to Solen to evade
police, which a reasonable jury could infer were attempts to conceal his guilt. See
United States v. Bolzer, 367 F.3d 1032, 1037 (8th Cir. 2004) (finding that a jury could
infer that a weapon without fingerprints had been wiped down in an effort to conceal
guilt). A reasonable jury could also conclude that Lester’s testimony that Chandler
ran into the knife was implausible. See United States v. Timlick, 481 F.3d 1080, 1084
(8th Cir. 2007). Although Lester presented evidence in support of self-defense, we
conclude that a jury could reasonably have rejected Lester’s testimony and concluded
that he did not act in self-defense.
Therefore, we affirm Lester’s conviction.
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