United States Court of Appeals

For the Eighth Circuit

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No. 16-1260

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Darrell Alan Lussier

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: October 21, 2016

 Filed: January 6, 2017

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Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Following a jury trial, Darrell Alan Lussier was convicted of three counts of

kidnapping, in violation of 18 U.S.C. §§ 1151, 1153(a), and 1201(a)(2), and three

counts of assault resulting in serious bodily injury, in violation of
18 U.S.C. §§ 113(a)(6), 1151, and 1153(a). The district court sentenced Lussier to 1

360 months’ imprisonment. Lussier appeals, arguing that the district court

erroneously instructed the jury regarding assault resulting in serious bodily injury,

that the court erred by conditionally admitting a prior assault conviction as

impeachment evidence, and that the evidence was insufficient to convict him of

kidnapping. We affirm.

I.

Because Lussier challenges the sufficiency of the evidence, “we will examine

the evidence in the light most favorable to the government, giving the government the

benefit of all reasonable inferences.” United States v. Bordeaux, 84 F.3d 1544, 1547

(8th Cir. 1996). In February 2015, Gregory Lee Maxwell resided in a duplex house

in the Back of Town area of the Red Lake Indian Reservation. Maxwell was

prohibited from having drugs in the house. Lussier and his then-girlfriend Cristy

Sumner resided with Maxwell for approximately one month. Maxwell believed that

he was on good terms with Lussier and Sumner, who had “pretty much left on their

own,” but according to Maxwell, Lussier and Sumner had brought drugs into the

house, despite knowing that drugs were not allowed on the premises.

On or about February 7, 2015, David Roy and Maxwell were drinking alcohol

together at Maxwell’s house. When Maxwell left to buy more alcohol, he instructed

Roy not to let Lussier and Sumner into the house. When Maxwell returned home a

few hours later, David Roy, his sister Nancy Roy, Lussier, and Sumner were present

at his house. Lussier proceeded to beat Maxwell, David Roy, and Nancy Roy. 

According to Maxwell, Lussier hit him, jumped on his stomach and side, wrapped a

bootlace around his throat, and dragged him by the bootlace, choking him. When

The Honorable Richard H. Kyle, United States District Judge for the District 1

of Minnesota.

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Maxwell tried to leave, Sumner blocked the door, and Lussier told him: “Tonight is

the night. Tonight is the night. You gonna die tonight. You got one hour to live.” 

David Roy and Nancy Roy were also badly beaten by Lussier. Lussier and Sumner

threw Maxwell, David Roy, and Nancy Roy through a trap door into the crawl space

underneath the house. They then shut the trap door to the crawl space, which was

cold and poorly lit. Maxwell and NancyRoy attempted to find the trap door and push

it open but were unable to do so. The three remained in the crawl space until

Maxwell’s nephew, Lawrence Kingbird, discovered themon the morning of February

9, 2015.

Maxwell, David Roy, and Nancy Roy all eventually received medical

treatment. Maxwell suffered a hemopneumothorax, blood and air in the chest cavity

that placed pressure on the heart and lungs and required the placement of a chest tube;

several rib fractures, which likely caused the hemopneumothorax; spinous process

fractures; a dissection of his carotid artery, which caused him to suffer a stroke; a

deep cut on his chin that required sutures; and a traumatic brain injury. Maxwell was

hospitalized for approximately ten days and spent ten more days in rehabilitation. 

Nancy Roy suffered a subdural hematoma and multiple facial bone fractures, which

required surgery. She was hospitalized for approximately ten days. David Roy

suffered hemorrhaging in his brain and facial fractures. He spent more than one

month in the hospital and approximately one month in a psychiatric facility.

II.

A.

Lussier first argues that the district court erred in instructing the jury on assault

resulting in serious bodily injury. Because Lussier did not object to these

instructions, we review for plain error. United States v. Davis, 237 F.3d 942, 944

(8th Cir. 2001). “[A] conviction will be affirmed ‘if the instructions, taken as a

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whole, fairly and adequately convey the law applicable to the case.’” United States

v. Whitefeather, 275 F.3d 741, 743 (8th Cir. 2002) (quoting United States v.

McDougal, 137 F.3d 547, 558 (8th Cir. 1998)).

Lussier contends that the jury instruction did not require the jury to find that

Lussier committed an assault that resulted in serious bodily injury, as the statute

requires. See 18 U.S.C. § 113(a)(6). The district court instructed the jury that the

offense has two elements: that the defendant committed an assault, and that the

person assaulted suffered serious bodily injury. The court defined assault as “an

intentional and voluntary attempt or threat to do injury to another person, when

coupled with the present ability to do so that is sufficient to put the other person in

fear of immediate bodily injury.” Lussier argues that because the instruction defined

assault only as a threat or attempt to injure another, it did not require that the assault

actually caused the serious bodily injury. He acknowledges that we have previously

upheld convictions for assault under § 113 when the offense conduct involved a

harmful or offensive touching. See Whitefeather, 275 F.3d at 742-43; Davis, 237

F.3d at 944-45. But he argues that in those cases there was a legal basis for the

assault conviction because the jury instructions defined assault to include an actual

harmful or offensive touching, whereas here the instructions defined assault to

include only the threat or attempt to injure another.

The jury was required to find that Lussier committed an assault and that the

person assaulted suffered serious bodily injury. When these instructions are read

together, the most natural meaning is that Lussier’s assault caused the serious bodily

injury and thus that the assault involved harmful touching. Accordingly, the

instructions “taken as a whole, fairly and adequately convey[ed] the law applicable

to the case,” Whitefeather, 275 F.3d at 743, and thus the jury had a sufficient legal

and factual basis to convict Lussier of that charge.

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Moreover, even if the assault instruction was erroneous, it was not plain error

because it did not affect Lussier’s substantial rights. See United States v. Vanover,

630 F.3d 1108, 1119 (8th Cir. 2011) (per curiam). “[A]n error only affects substantial

rights if it is prejudicial, i.e., the defendant proves there is ‘a reasonable probability

that, but for [the error claimed], the result of the proceeding would have been

different.’” Id. (second alteration in original) (quoting United States v. DominguezBenitez, 542 U.S. 74, 82 (2004)). The evidence presented at trialshowed that Lussier

physically beat the victims, not that he attempted or threatened to beat them. Had the

jury instructions defined assault to include physicalstriking, the jury doubtless would

still have convicted Lussier. Accordingly, because Lussier has not shown a

reasonable probability that the result of the trial would have been different had the

instruction been worded differently, he has not shown plain error.

B.

Lussier contends that the district court erred in ruling that it would admit

impeachment evidence of his prior conviction for assault resulting in serious bodily

injury if Lussier testified, arguing that the ruling violated his Fifth Amendment right

to due process and his Sixth Amendment right to a jury trial. By not testifying,

Lussier failed to preserve this claim in light of the Supreme Court’s holding in Luce

v. United States that “to raise and preserve for review the claim of improper

impeachment with a prior conviction, a defendant must testify.” 469 U.S. 38, 43

(1984); see also United States v. Johnson, 767 F.2d 1259, 1270 (8th Cir. 1985)

(“Although Luce was decided under Fed.R.Evid. 609(a)(1), its logic applies with

equal force to motions under Rule 404.”).

C.

Lastly, Lussier contends that the evidence was insufficient to convict him of

kidnapping. We review de novo a challenge to the sufficiency of the evidence after

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denial of a motion for acquittal, viewing the evidence in the light most favorable to

the verdict. United States v. Ford, 726 F.3d 1028, 1033 (8th Cir. 2013). We draw all

reasonable inferences in the government’s favor, and reverse only if no reasonable

jury could have found the defendant guilty beyond a reasonable doubt. Bordeaux, 84

F.3d at 1547-48. Under 18 U.S.C. § 1201(a), a defendant is guilty of a crime if the

defendant “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries

away and holds for ransom or reward or otherwise any person.” Kidnapping under

§ 1201(a) thus has two elements: that of seizing, confining, inveigling, decoying,

kidnapping, abducting, or carrying away; and holding for ransom or reward or

otherwise. Chatwin v. United States, 326 U.S. 455, 459 (1946). As to the second

element, “[t]he act of holding a kidnapped person for a proscribed purpose necessarily

implies an unlawful physical or mental restraint for an appreciable period against the

person’s will and with a willful intent so to confine the victim.” Id. at 460.

Lussier argues that the evidence was insufficient because it did not show that

he “held” the victims. The district court instructed the jury that Lussier was charged

with holding each victim “for the purpose of preventing him or her from contacting

law enforcement and preventing the discovery of Defendant’s crime.” Lussier

contends that the evidence does not show he held or had the intention to hold the

victims because the trap door to the crawl space was not locked or obstructed, and

there is no evidence that Lussier remained at Maxwell’s house to prevent the victims

from escaping.

We conclude that the evidence wassufficient to convict Lussier of kidnapping. 

Lussier beat the three victims, causing each of them significant injuries. He then

threw them into the crawl space and closed the door, leaving them in a cold, dimly lit

space where they would not be readily found. A jury could reasonably infer from

these facts that Lussier intended to confine the injured, incapacitated victims and

prevent themfromreporting the assault notwithstanding his failure to lock or obstruct

the trap door or personally stand guard to prevent them from escaping. Cf. United

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States v. Stands, 105 F.3d 1565, 1576 (8th Cir. 1997) (holding that evidence was

sufficient for kidnapping conviction where Defendant inveigled or decoyed the victim

for the purpose of transportation to an isolated location where assault would not be

interrupted). 

The judgment is affirmed.

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