## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-3315

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. David Lynch, *
* Defendant - Appellant. *

___________ Submitted: April 16, 2010 Filed: July 26, 2010

___________ Before BYE, GIBSON, and GRUENDER, Circuit Judges.

___________ BYE, Circuit Judge. David Lynch was found to haveviolated the terms of hi s supervised release and was sentenced to 24 months’ imprisonment with two additional years of supervised release. In revoking his supervis ed release, the district court 1 determined Lynch committed first-degree harassment under Iowa law, which constituted a Grade A violation of supervised release. On appeal, Lynch contends he did not possess the requisite intent to commit first-degree harassment. We affirm.

1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa.I

On February 22, 2001, David Lynch was i ndicted on four drug and gun charges. He pleaded guilty to one count of conspi racy to manufacture and distribute 50 grams or more of pure methamphetamine and a mi xture or substance containing marijuana, and one count of possession of a firearm by a prohibited person. He was sentenced to 120 months’ imprisonment on each count, to be served concurre ntly. He was also ordered to serve concurrent terms of supervised release of five years on Count I and three years on Count II.

Lynch began serving his supervised re lease on June 12, 2009. On September 3, 2009, the supervising probation officer f iled a petition for a warrant alleging Lynch violated the following conditions of his supervis ed release: 1) associating with felons; 2) lying to his probation officer and failing to follow the officer’s instructions; 3) failing to notify his probation officer of any change in residence; 4) committing another federal, state, or local crime; and 5) possessing a dangerous weapon, a baseball bat.

The alleged violations stemmed from Lynch’s relationship with Kelli Key, another felon he was romantical ly involved with during his te rm of supervised release. While he was warned by his probation offi cer not to have contact with Key, he continued seeing her and wanted to know who was “snitching” him out to the probation office. Lynch suspected Key’s ex -husband, David Boll, had been the source of the information. On August 25, 2009, Lynch received permission from the probation office to pick up some of his belongings at Key’s residence. The district court found, however, that he timed his visit so he could be present when Boll arrived for a bi-weekly child custody exchange with Key.

As a result of his ongoing custody dispute with Key, Boll had an audio recording device that captured the incident with Lynch when he arrived at the

-2-property. The recording was entered into evidence and captured the essence of the encounter. At the outset of the incide nt, Lynch was waiting outside leaning on a station wagon parked in the driveway. Af ter Boll exchanged custody of his son with Key, Lynch began making threat s to Boll in “an aggressivemanner.” Lynch told Boll several times if he called the police again, Boll would “see what happens.” Boll repeatedly asked, “[i]s that a threat?” and Lynch continued to tell Boll to “see what happens.”

Boll testified that Lynch then grabbe d a baseball bat lying on the hood of the station wagon and “raise[d] the baseball bat above his shoulder and [made] a motion that he’s going to hit me.” Other witn esses, including Key, Key’s daughter Leann Walztoni, and Walztoni’s boyfriend Cody Cramer denied seeing Lynch with a baseball bat, although it seemed clear there was a bat within reach as it became the focus of the conversation on the recording. Boll asked Lynch if he was going to hit him with the bat, and Lync h responded, “[y]ou want me to?” Boll then repeatedly dared Lynch to hit him with the bat, and Lynch responded, “I’ ll fucking smash you.” Boll told Lynch to go ahead and “bust my head open.” Despite his suggestions, Boll testified he was hesitant to turn around and walk away because he thought Lynch might strike him from behind. The argument concluded as Boll left the property.

At the revocation hearing, Lynch admitted violating his supervised release, including threatening Boll by stating “I’ll fucking smash you” and “[c]all the cops again and see what happens.” However, he denied having a baseball bat, and he argued his actions did not qualify as harassment in the first-degree.

The district court concluded Lync h committed Grade C violations for associating with felons, lying to his probation officer, and failing to follow the officer’s instructions. The court further declined to find that Lynch changed his residence without permission, and therefore did not find that condition violated. Finally, the court found Lynch committed a ne w offense of harassment in the first-

-3-degree by communicating a threat to commit the crime of assault with the specific intent to cause a serious injury in viola tion of Iowa law. The court also found Lynch threatened Boll with a baseball bat. Bo ll’s account was most credible, according to the court, largely because of the recording and the circumstantial evidence. It noted, if there was not a bat present, “someone w ould have protested and we would hear that on the recording.” The court further f ound it was no coincidence that Lynch was present at the time, and rather he had sp ecifically timed the events so he could confront Boll.

The court determined the new state law violation was a Grade A violation under section 7B1.1(a) of the United States Sent encing Guidelines (U.S .S.G.). As a result, it calculated a Guidelines range of 24 to 30 months’ imprisonment, and it ultimately sentenced Lynch to 24 months’ imprisonment. On appeal, Lynch only challenges the Grade A violation based on the new state law violation.

II

“We review a district court’s decision to revoke supervised release for an abuse of discretion, and we review the factual determinations underlyi ng the court’s decision to revoke for clear error.” United States v. Smith , 576 F.3d 513, 515 (8th Cir. 2009). A violation of supervised release need onl y be established by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3).

Under U.S.S.G. § 7B1.1(a)(1), a Grade A violation of supervised release is established by the commission of a “crime of violence” offense that is punishable by more than one year of imprisonment. A “crime of viol ence” includes an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” as well as “conduct th at presents a serious potential risk of physical injury to another.” U.S.S.G. § 7B1.1, cmt. n.2; U.S.S.G. § 4B1.2(a).

-4-Harassment under Iowa law is committed “when the person, purposefully and without legitimate purpose, has personal cont act with another pers on, with the intent to threaten, intimidate, or alarm that other person.” Iowa Code § 708.7(1)(b). Personal contact “means an encounter in wh ich two or more people are in visual or physical proximity to each other,” and it “ does not require a physical touching or oral communication, although it may include these types of contacts.” Id. First-degree harassment under Iowa law is committed when “the person commits harassment involving a threat to commit a forcible fel ony.” Iowa Code § 708.7(2). The definition of “forcible felony” includes the felony o ffense of assault causing serious injury. Iowa Code §§ 702.11(1); 708.2(4). Firs t-degree harassment under Iowa law is classified as an aggravated misdemeanor, which is punishable by not more than two years imprisonment. 2Iowa Code §§ 708.7(2)(b); 903.1(2).

Lynch contends the court’s finding focuse d solely on the threatening words and not the context in which those words were u ttered. He argues his threat to “smash” Boll was responsive, heat-of-the-moment bluster that is not the sort of premeditated or purposeful intimidation the statute is inte nded to address. L ynch also asserts the court failed to find the intent element re quired for a first-degree harassment offense, and because the record shows only respons ive bluster and not the necessary purpose or intent, it was error for the court to find first-degree harassment.

The Iowa Supreme Court has recognized “[ i]ntent is a state of mind difficult of proof by direct evidence. It may, however , be established by circumstantial evidence and by inferences reasonably to be drawn from the conduct of the defendant and from all the attendant circumstances in the light of human behavior and experience.” State v. Casady , 491 N.W.2d 782, 787 (Iowa 1992) (citation omitted); see also State v.

2 There is no dispute first-degree hara ssment is punishable by more than one year of imprisonment and has as an elem ent the threatened use of physical force against another person, as required under the Guidelines. U.S.S.G. § 7B1.1. Lynch only challenges the intent aspect in this case.
-5-Acevedo , 705 N.W.2d 1, 5 (Iowa 2005). “Threat s of physical harm need not be directly expressed, but may be contained in ‘veiled statements’ nonetheless implying injury to the recipient when viewed in all the surrounding circumstances.” State v. McGinnis , 243 N.W.2d 583, 589 (Iowa 1976) (citation omitted).

In State v. Button , 622 N.W.2d 480, 483-84 (Iowa 2001), the Iowa Supreme Court upheld a defendant’s conviction for harassment in the second degree. The defendant in Buttonmade threatening statements to a police officer after he was arrested. 622 N.W.2d at 482. First, the defendant told the officer he would have “blown [his] brains out” if they were pheasant hunting. Id. The officer responded, “You’re threatening me, huh?” Id. at 483. The defendant answered, “Yeah, I would’ve tried to.” Id. He later told the officer, “I’m gonna remember you,” which was followed by another s hooting reference. Id.

On appeal, the defendant in Button argued he lacked the requisite intent for the crime. Id. The court disagreed, noting the cont ext of the events provided reason for the jury to conclude the st atements “evidenced an atte mpt to intimidate” the officer. Id. at 484. Indeed, the officer testif ied he feared for his safety. Id. The court further found the defendant’s asserted inability to carry out the threats was inapposite because it was not required under the statute. Id. Moreover, the court found his statement “I’m gonna remember you” suggested a plausibl e future action against the officer. Id.

In this case, the court did not abuse its discretion by revoking Lynch’s supervised release. The court discu ssed the circumstances leading up to the altercation, which provide d support for its findings. Specifically, the court found Lynch timed his arrival at Ke y’s residence to coincide w ith Boll’s arrival. Moreover, the court concluded Lynch possessed a baseball bat, wh ich was evident from the recording where Boll references the bat and asks whether Lynch would strike him with it. Lynch proceeded to make seve ral aggressive statements as “see what happens” and “I’ll fucking smash you.”

-6-Taken in the context and manner in which Lynch made his statements to Boll, a reasonable person of ordinary intelligence could construe these statements as a serious expression of intent to causeserious harm to Boll. McGinnis , 243 N.W.2d at 589 (“All that is necessary [for a threat] is that it be definite and understandable to a mind of ordinary intelligence.”). Similar to Button , the context of the events provided evidence of Lynch’s intent.

Moreover, the court did not clearly err in finding the intent element, contrary to Lynch’s suggestion. The court specifi cally found Lynch communicated “a threat to commit the crime of assault with the specific intent to cause a serious injury .” The effect of Lynch’s intent was evident from the reaction it provoked from Boll, who testified he was afraid to turn around and walk away because he thought Lynch might strike him in the back of the head. Th e district court was entitled to credit Boll’s account of the incident, including his descrip tion of Lynch’s actions with the baseball bat. SeeUnited States v. Carothers , 337 F.3d 1017, 1019 (8th Cir. 2003) (affirming the district court’s revocation of supervis ed release when the court found the victim’s testimony was credible, which is “virtua lly unreviewable on appeal”). At most, Lynch’s view of the evidence is one of two permissible views, and the district court’s choice of the other view of the evidence cannotbe clear error. United States v. Rice , 49 F.3d 378, 385 (8th Cir. 1995) (“Where th ere are two permissible views of the evidence, the district court’s choice betw een them cannot be clearly erroneous.”) (citing Anderson v. Bessemer City , 470 U.S. 564, 574 (1985)).

III

For the foregoing reasons, we conclude the district court did not abuse its discretion in revoking Lynch’s supervised rel ease, nor did it clearly err in its factual determinations. We affirm the judgment of the district court.

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