United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2606
                                   ___________

United States of America,               *
                                        *
               Appellee,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Paul Herron,                            *
                                        *
               Appellant.               *
                                   ___________

                             Submitted: March 13, 2008
                                Filed: August 26, 2008
                                 ___________

Before RILEY, GRUENDER, and SHEPHERD, Circuit Judges.
                            ___________

SHEPHERD, Circuit Judge.

      At the close of his jury trial, Paul Herron was convicted of Assault with a
Dangerous Weapon. See 18 U.S.C. §§ 7(3), 113(a)(3). The district court1 sentenced
Herron to 48 months imprisonment. Herron appeals his conviction and sentence. We
affirm.




      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
                                          I.

      In August of 2006, Herron was a veteran participating in an alcohol
detoxification program at the Veteran’s Affairs (“VA”) hospital in Hot Springs, South
Dakota. Prior to entering the detoxification program, Herron was participating in the
VA’s inpatient alcohol treatment program and residing in the VA’s alcohol
rehabilitation program. Herron relapsed and was moved to the detoxification unit.

       Approximately two weeks prior to Herron’s relapse, he applied for VA pension
benefits. In doing so, he discussed his application with Jerry White, a VA employee.
All of Herron’s contact with White was on the telephone; they never met in person.
Although White’s job was not that of a benefits advisor, he often assisted residents of
the treatment program with their applications for benefits. During their telephone
conversation, White advised Herron that he did not qualify for pension benefits.

       On August 15, 2006, approximately two weeks after Herron spoke to White on
the telephone, Herron was informed by a member of the treatment staff that upon his
completion of the detoxification program he would be terminated from the inpatient
program due to his relapse, which included violation of the program rules prohibiting
the possession and ingestion of alcohol on the VA dormitory premises. On August
16, 2006, the medical staff noted that Herron’s agitation level was elevated as he grew
anxious and tearful about his impending discharge. As the day progressed, Herron
obtained and drank enough alcohol to elevate his blood alcohol content (BAC) to a
range of 0.28 to 0.33 percent.

        Over the course of the day, Herron was observed on surveillance video from
various locations on the VA campus drinking an unknown substance from a bottle
which was concealed inside a plastic bag. Herron moved about the campus, making
it difficult for observers to confront him about this behavior. As the day progressed,
reports indicate that Herron exhibited rapid mood swings which ranged from agitated


                                          -2-
and loud to calm and quiet. At one point, Herron’s behavior frightened another veteran
who was at the VA picking up his medication.

       At approximately 3:00 o’clock that afternoon, Herron entered the VA medical
library and approached Jerry Collogan, a medical librarian, who was seated at his
desk. Collogan had never seen or met Herron prior to this time. Collogan’s office
was located just down the hall from Jerry White’s office. Collogan saw Herron enter
the library and offered to assist him. At that point, Herron looked at Collogan’s name
tag, and said “Jerry, I think you have a secret agenda.” Collogan responded in a
joking manner that no, in fact he was just “tending to the medical library.” Herron
then took the scissors from Collogan’s desk and stabbed Collogan repeatedly. The
two struggled until Collogan broke free from Herron and ran down the hall to the
office of Carla Johnson, an experienced VA nurse. Johnson called the police while
Collogan closed and locked the office door.

       When Herron appeared outside Johnson’s locked office door, he looked through
a small window into Johnson’s office. When he saw Collogan inside the office, he
pounded on the door with a chair and repeatedly screamed “Jerry!” As the safety
glass in the door started to shatter, two VA police officers arrived. The officers saw
Herron standing at Johnson’s door, holding the chair, and noticed that Herron’s arms
and hands were covered with blood. When he saw the officers, Herron told them that
he did not know why they were there and stated that he had done nothing wrong. As
the officers approached Herron, they detected the odor commonly associated with
alcoholic beverages on his breath. Although he was initially cooperative, he became
belligerent and tried to spit on the officers after he was handcuffed.

       After Herron was taken into custody, Collogan’s wounds were treated by the
VA medical staff. Collogan suffered four puncture wounds to his head and chest area.
He also had four lacerations on his chest and head. The wounds that Collogan
suffered on his back, nose and neck required sutures.


                                         -3-
       Herron was indicted for the offense of assault with a dangerous weapon. When
Herron’s jury was seated, the district court admonished the jury not to: form an
opinion prior to hearing all of the evidence; talk to anyone about the case; discuss the
case among themselves; do any outside research; or conduct any independent
investigation of their own. At the close of all evidence, in addition to being instructed
about their deliberations and the law that applied, the jury again was reminded of the
instructions the district court had given them at the beginning of the trial.

        At trial, Herron argued that, due to his intoxication, he was unable to form the
necessary criminal intent to harm Collogan. Herron testified that he is an alcoholic
who commonly consumes up to a fifth of vodka when he drinks. He stated that he had
no memory of the assault. Herron testified that he had no memory of the portion of
the day Collogan was injured. He stated that his last memory, prior to being in his jail
cell, was a conversation he had with a nurse in his VA hospital room early in the day.
Two state chemists were presented by the defense as expert witnesses to support
Herron’s assertion that his BAC at the time of the offense was between a 0.28 and
0.33 percent. These experts also provided testimony about the common effects of
such a BAC level. On cross-examination by the government, Herron’s experts
testified that it is possible that a heavy drinking alcoholic, such as Herron, could
function quite well with a 0.33 percent BAC.

       In addition to the testimony elicited from the expert witnesses on cross-
examination, the government provided evidence indicating that alcohol did not
adversely affect Herron as it might other people. The police officers testified that
Herron had no trouble walking when he was escorted away from Johnson’s office
door. Additionally, they testified that Herron spoke coherently and deliberately when
he provided the officers with his name and other information. At the time of his
arrest, Herron correctly stated the general time of day and communicated with the
officers in a clear manner.



                                           -4-
       Herron proposed that the jury be instructed that it could consider the offense of
assault by striking, beating or wounding as a lesser-included offense of assault with
a dangerous weapon. The district court refused the requested instruction noting that
no case law supported his theory that assault by striking, beating or wounding is a
lesser-included offense of assault with a dangerous weapon. Additionally, the district
court cited the defense’s theory of Herron’s complete innocence due to his lack of
memory of committing any assault as another reason for denying the submission of
the proposed jury instruction.

       As the first day of deliberations came to a close, the jury sent a written note to
the district court which read: “We would like the exact definition of ‘intent’ and
‘judgment’ from a dictionary and a legal definition,” and “what is voluntary
intoxication, in instruction number 11?” Without objection by the parties or response
from the district court, the jury was sent home for the evening and instructed to return
the next morning. The following morning, after discussing the jury’s note with the
attorneys, the district court gave the jury the legal definition of the words “intent” and
“judgment.” At that time, Herron’s attorney objected to the court giving the
definitions to the jury, arguing that the district court should have referred the jury back
to the original instructions that were provided. Herron’s attorney also noted that he
was concerned about the possibility that one of the jurors could have consulted a
dictionary while at home the previous evening. He requested that the court admonish
the jurors to notify the court if any of them consulted an outside source for the
definitions requested in their communication with the court. The district court denied
this request noting that the objection was based on conjecture rather than evidence.
       After the jury returned a guilty verdict, Herron requested that the district court
poll the jury asking each of them individually if they consulted any outside source,
such as a dictionary, with respect to the definitions they requested the first day of
deliberations. When the district court refused, Herron moved for a mistrial. The
motion was denied.



                                            -5-
      At sentencing, Herron moved for a two-level downward adjustment for
acceptance of responsibility pursuant to United States Sentencing Commission,
Guidelines Manual, § 3E1.1. He argued that he never actually denied assaulting
Collogan, rather he argued that he was too drunk to have the requisite intent to assault
Collogan. The district court denied the motion finding that a review of Herron’s
testimony at trial did not demonstrate an acceptance of responsibility. Determining
that Herron’s Guidelines range was 41 to 51 months imprisonment and a fine of
$7,500 to $75,000, the district court then sentenced Herron to 48 months
imprisonment, a $7,500 fine and restitution in the amount of $181.25.

                                          II.

       Herron appeals his conviction and sentence, arguing that the district court erred
by: (1) denying his request to submit a lesser-included instruction on the offense of
Assault by Striking, Beating or Wounding; (2) admitting the testimony of Jerry White;
(3) denying his motion for mistrial; (4) denying his request for a downward
adjustment for acceptance of responsibility; and (5) fining him $7,500.

                                          III.

                                          A.

       We review district court rulings on jury instructions under the abuse of
discretion standard. United States v. No Neck, 

, 1054 (8th Cir. 2007).
A defendant is entitled to an instruction on a lesser-included offense when:

      (1) a proper request is made; (2) the elements of the lesser offense are
      identical to part of the elements of the greater offense; (3) there is some
      evidence which would justify conviction of a lesser offense; (4) the proof
      on the element or elements differentiating the two crimes is sufficiently
      in dispute so that the jury may consistently find the defendant innocent

                                          -6-
      of the greater and guilty of the lesser included offense; and (5) there is
      mutuality, i.e., a charge may be demanded by either the prosecution or
      defense.

United States v. Dodd, 

, 876 (8th Cir. 2007).

       Herron failed to satisfy the second requirement necessary for the submission of
the requested lesser-included instruction. The elements of Assault with a Dangerous
Weapon require that the defendant: 1) assault the victim; 2) intend to do bodily harm;
and 3) use a dangerous weapon to commit the assault. 18 U.S.C. § 113(a)(3).

       In order to establish an Assault by Striking, Beating or Wounding there must
be proof of some form of physical contact. See 

The offense of
Assault by Striking, Beating or Wounding is similar to a “battery at common law.”
United States v. Whitefeather, 

, 743 (8th Cir. 2002). This is so because
the word “assault,” as it is used in 18 U.S.C. § 113, is “more inclusive than under the
common law and encompasses elements that would have fallen under traditional
definitions of battery as well as assault.” 

contact is an element
of Assault by Striking, Beating or Wounding, it is not an element of Assault with a
Dangerous Weapon2. See 18 U.S.C. § 113(a)(3)-(4); United States v. Pierre, 

, 875 (9th Cir. 2001); United States v. Estrada-Fernandez, 

, 494-95
(5th Cir. 1998); United States v. Duran, 

, 915 (10th Cir. 1997), cert.
denied, 

(1998). Therefore, the second requirement set forth in Dodd
was not met, and the district court did not err in refusing Herron’s requested lesser-
included instruction.


      2
       A cursory review of background descriptions in cases from this circuit
indicates that on limited occasions lesser-included instructions of this nature were
submitted to juries. However, we note that the question of whether Assault by
Striking, Beating or Wounding is a lesser-included offense of Assault with a
Dangerous Weapon has not been previously considered by this court.
                                          -7-
                                           B.

      Herron argues that the district court erred by admitting the testimony of Jerry
White, over Herron’s objection, as evidence of Herron’s motive and intent pursuant
to Federal Rule of Evidence 404(b). We review the district court’s admission of
evidence over objection for abuse of discretion. United States v. Jones, 

,
812-13 (8th Cir. 2001).

       Rule 404(b) provides that evidence of other crimes, wrong or acts is
inadmissable as proof of a person’s character in order to show that he acted in
conformity with his character. Fed. R. Evid. 404(b). However, there are exceptions
provided within the rule. In a criminal case, such evidence can be admissible for other
purposes, such as proof of: motive, intent, opportunity, preparation, knowledge, plan,
identity, or absence of mistake. 

trial, the testimony of Jerry White was admitted for purposes of
proving motive and intent pursuant to Rule 404(b). Jerry White testified that he never
met Herron in person, about his telephone conversation with Herron wherein he
informed Herron that he would not qualify for VA disability benefits, and the close
proximity of his office to the medical library. In addition to White’s testimony, the
evidence indicated that Herron saw Collogan’s name tag, which read “Jerry,” and that,
immediately preceding the attack, Herron stated that Collogan had “a secret agenda.”
Similarly, the evidence established that Herron repeatedly screamed the name “Jerry”
as he pounded on nurse Johnson’s office door. The district court determined that the
nature of their telephone conversation and the fact that Herron and White never
actually met in person was admissible pursuant to Rule 404(b) as evidence of Herron’s
motive and intent to attack “Jerry.” Considering the totality of the evidence, we do
not find that the district court abused its discretion in admitting the testimony of Jerry
White.



                                           -8-
                                           C.

       Next, Herron asserts that the district court erred in its handling of the question
submitted by the jury, refusing to poll the jury about any possible misconduct or
improper research when they retired for the evening, and denying his motion for a
mistrial due to potential juror misconduct. We review a district court’s handling of
allegations of juror misconduct for an abuse of discretion. United States v. Gianakos,

, 921 (8th Cir. 2005). A district court’s response to questions submitted
from the jury is also reviewed for abuse of discretion. United States v. Anwar, 

, 1114 (8th Cir. 2005). Likewise, we review a denial of a motion for
mistrial for abuse of discretion. United States v. Smith, 

, 622 (8th Cir.
2007).

        Based on a thorough review of the trial transcript we cannot say that the district
court abused its discretion in its handling of the allegation of potential juror
misconduct or in its denial of the motion for mistrial. Herron submitted no evidence
of any misconduct on the part of any juror. There was no objection made prior to the
court allowing the jurors to retire for the evening. The district court provided answers
to the jurors’ questions the following morning, prior to the jury’s return to their
deliberations. On appeal, Herron does not object to the answers submitted by the
district court. Instead, he argues that the district court erred in allowing the jury to
retire for the evening without first providing the answers and in declining to poll the
jury about potential misconduct after they reached their verdict. However, his
objection and motion for mistrial were based on pure conjecture that a juror could
have consulted a dictionary. Absent any showing that the alleged potential
misconduct occurred, the district court had no duty to conduct an inquiry into an
unsupported allegation. See King v. Bowersox, 

, 541 (8th Cir. 2002).
With no evidence to establish that any juror misconduct ever occurred, Herron has
argued only that there was a potential for misconduct, and thus he failed to establish
that the district court abused its discretion.

                                           -9-
                                            D.

        Herron also asserts that the district court committed two sentencing errors.
First, he avers the district court erred when it denied his request for a two-level
reduction for acceptance of responsibility pursuant to Guidelines section 3E1.1. We
review a district court’s interpretation and application of the Guidelines de novo and
its factual findings for clear error. United States v. Burnette, 

, 945 (8th
Cir. 2008).

       Herron not only put the government to its proof at trial, but also continued to
deny that he had the ability to form the requisite intent due to his voluntary
intoxication. Herron has the burden to establish that he has clearly demonstrated that
he is entitled to a two-level reduction in his offense level for acceptance of
responsibility. USSG §3E1.1(a). Even a guilty plea does not entitle a defendant to
a reduction for acceptance of responsibility as a matter of right. See United States v.
Card, 

, 595 (8th Cir. 2004) (despite defendant’s plea of guilty and
admission of conduct constituting the offense, defendant not entitled to reduction for
acceptance of responsibility when the evidence of acceptance is outweighed by
evidence of inconsistent conduct). The record reflects that Herron did not take
responsibility for his conduct at his trial or his sentencing hearing. Therefore, we
cannot say that the district court abused its discretion in denying Herron’s request for
acceptance of responsibility.

       Finally, Herron argues that the district court erred by including a fine of $7,500
as part of his sentence. Herron alleges that the district court failed to assess his ability
to pay when it imposed the fine. We review a district court’s imposition of a fine and
its determination of the amount of a fine for clear error. United States v. Allmon, 

, 807 (8th Cir. 2007). Guidelines section 5E1.2(a) provides that a district
court must impose a fine in every case unless the defendant establishes that he is not
able to or likely to become able to pay a fine. USSG § 5E1.2(a). Here, Herron was

                                           -10-
ordered to pay the minimum fine of $7,500 at the rate of $100 per month. There is no
evidence that Herron asserted that he was not able to pay a fine or that he was not
likely to become able to pay a fine upon his release from his term of imprisonment.
He did not raise the issue at his sentencing hearing or in his sentencing memorandum.
In fact, in his sentencing memorandum he stated that he “is a defendant very able to
immediately begin contributing to restitution, if released on supervision . . . [with] a
long employment history and is a very smart individual.” He went on to assert that
“[a] sentence placing [him] on supervision would allow him to immediately become
employed and begin attempting to repay the VA and the victim.”

       Other evidence of Herron’s financial condition and ability to pay a fine and
restitution appears in the presentence investigation report (PSIR), which was
considered by the district court. Through the PSIR, the district court was aware of
much information that indicated Herron’s ability to pay a fine. For example, the PSIR
noted that Herron: had no dependants; was a trained jet engine mechanic; and was
previously employed as a jet engine mechanic. Likewise, the PSIR noted that while
Herron had no monthly income due to his pretrial incarceration, he owned a vehicle
valued at $500, had $20 in a bank account, and the opportunity to earn a minimum of
$232 per year in the Inmate Financial Responsibility Program of which one half would
go toward payment of any court-ordered financial obligation. The PSIR also noted
that Herron was responsible for a $50 per month storage fee; a student loan balance
of $1,268, two unpaid judgments totaling $438; collection accounts totaling $7,042;
and a charged off account of $5,072. The Guidelines fine range for Herron was
$7,500 to $75,000, see USSG §5E1.2(c)(3), and the statutory maximum fine for his
offense was $250,000, see 18 U.S.C. § 3571.

       Guidelines section 5E1.2(d) provides that the district court shall consider eight
enumerated factors when determining the amount of a fine. USSG §5E1.2(d)(1)-(8).
Prior to imposing Herron’s sentence, the district court had access to and reviewed the
PSIR, the sentencing memoranda of the parties, and heard from counsel for the

                                         -11-
government as well as counsel for Herron. Although the district court did not provide
detailed findings of the Guidelines factors that it must consider, the record provides
sufficient information to establish that the factors were considered and that Herron
failed to establish that he could not pay or was not likely to be able to pay a fine. See

.

                                          IV.

      We therefore affirm Herron’s conviction and sentence.




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