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The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3645

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United States of America, *

*

Plaintiff – Appellee, *

* Appeal from the United States 

v. * District Court for the District of

* South Dakota

L. C. D., *

* [UNPUBLISHED]

Defendant – Appellant. *

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Submitted: October 21, 2010

Filed: October 26, 2010

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Before MURPHY, BEAM, and BENTON, Circuit Judges.

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PER CURIAM.

L.C.D. was adjudicated a juvenile delinquent after the district court1

 found him

guilty of assault. He appeals his conviction and sentence. Because sufficient evidence

supported his conviction and his sentence is now moot, we affirm. 

On September 21, 2008 L.C.D. was fourteen and lived on the Rosebud Sioux

reservation. Early that morning, L.C.D. became involved in an argument with a group

of adults that included Michelle Oakie. As the argument escalated into fighting,
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L.C.D.'s brother joined him and the group pursued the brothers toward the home of

their uncle Brian Davis. Davis emerged and hit Oakie in the face with a club. She

went down swinging and blacked out. All of the witnesses who saw the fight agreed

that both brothers beat Oakie's torso with bats after Davis's initial blow felled her.

Oakie suffered severe facial injuries.

The government charged L.C.D. with assault with a deadly weapon, assault

resulting in serious bodily injury, and aiding and abetting both counts. 18 U.S.C. §§

2, 113(a)(3), (6). L.C.D. stipulated to his and Oakie's status as Indians and that the

assaults took place in Indian country, creating federal jurisdiction over his

delinquency adjudication. Id. §§ 1153(a), 5032.

The district court found L.C.D. guilty of assault with a deadly weapon and of

aiding and abetting assault resulting in serious bodily injury. At sentencing both

parties requested probation, of which the district court imposed five years. The court

also ordered L.C.D. to participate in a residential reentry program at a juvenile

services center. On appeal, L.C.D. challenges the sufficiency of the evidence to

support his convictions. He also challenges the custodial portion of his sentence as

unreasonable and based on an erroneous guidelines calculation.

We review de novo the sufficiency of the evidence supporting juvenile

adjudications. United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009); United

States v. L.B.G., 131 F.3d 1276, 1277 (8th Cir. 1997). Viewing the evidence in the

light most favorable to the verdict, we accept all reasonable inferences supporting it.

L.B.G., 131 F.3d at 1277. We review the district court's findings of fact for clear error

and accord deference to its credibility determinations. Id.

L.C.D. argues that the district court erred by crediting the four witnesses who

testified to his participation in the group attack. According to L.C.D. they lacked

credibility because two were drunk and were relatives of the victim, one changed his
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testimony after receiving a favorable plea offer, and one testified inconsistently and

in a self serving manner. The credibility of witnesses, however, "is . . . virtually

unassailable on appeal." United States v. Cates, 613 F.3d 856, 858 (8th Cir. 2010).

"The test for rejecting evidence as incredible is extraordinarily stringent and is often

said to bar reliance only on testimony asserting facts that are physically impossible."

United States v. Hakim, 491 F.3d 843, 845 (8th Cir. 2007). This testimony does not

meet that standard. The district court was aware of the potential biases of the

witnesses and was in the best position to weigh their testimony accordingly. 

L.C.D. also argues that the evidence was insufficient to prove that he aided and

abetted his uncle in inflicting serious bodily injury. Everyone taking part in an assault

is guilty either as a principal or as an aider and abetter. See United States v. Felix, 996

F.2d 203, 207 (8th Cir. 1993). Several witnesses testified that L.C.D. participated in

the assault. We defer to the district court in determining witness credibility and

conclude that it did not err in its determinations. L.C.D. also notes various

discrepancies in the witness testimony amounting to an alleged failure by the

government to negate self defense. The witness testimony supports the district court's

conclusion that L.C.D. could not reasonably have acted in self defense. See United

States v. Bordeaux, 570 F.3d 1041, 1048 (8th Cir. 2009) (assault by a defendant after

his reasonable fear of imminent harm had passed negated self defense). 

As his final challenge to his conviction, L.C.D. claims that no evidence

established that Oakie experienced fear of imminent bodily harm as a result of his

actions. This argument fails in light of witness testimony that L.C.D. intentionally

beat Oakie. "Attempts to commit battery . . . fall within the meaning of assault."

United States v. Ashley, 255 F.3d 907, 911 n.4 (8th Cir. 2001). 

At sentencing the district court ordered that L.C.D. receive five years probation

and report immediately to a juvenile residential reentry program. L.C.D. does not

appeal the length of his probation, only the residential reentry order. Since the parties
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filed their briefs, L.C.D. was released on probation. He was returned to custody in

August 2010 after arrest for aggravated assault and underage drinking and now awaits

a revocation hearing.

L.C.D.'s release on probation and subsequent rearrest make the court's reentry

order moot. His revocation proceedings will determine where he spends the

remaining years of his sentence. See Ali v. Cangemi, 419 F.3d 722, 723–24 (8th Cir.

2005). Though convictions carry a presumption of collateral consequences, orders of

custody during supervisory periods do not. See Beachem v. Schriro, 141 F.3d 1292,

1293–94 (8th Cir. 1998) (holding that revocation of parole carried no presumption of

collateral consequences). Purely speculative collateral consequences cannot overcome

a finding of mootness. Spencer v. Kemna, 91 F.3d 1114, 1117 (8th Cir. 1996). We

therefore dismiss L.C.D.'s appeal of his sentence.

Accordingly, the judgment of the district court is affirmed.

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