* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

vs. HEDODUYEHPUA HERMAN THAYER, also known as Heto Thayer, Defendant - Appellant. No. 02-8081 (D.C. No. 01-CR-148-J) (D. Wyo.)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges. **
Defendant-Appellant Hedoduyehpua “Heto” Herman Thay er appeals from his conviction and sentence. Mr. Thayer’s counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and moves for leave to withd raw as counsel. For the reasons set out below, we grant c ounsel’s motion to withdraw- 2 -

and dismiss the appeal. While at a party at a home on the Wind River Indian Reservation, Mr. Thayer and Cori Enos got into an argument. IV R. 2 26-27 & 349. Ms. Enos slapped Mr. Thayer, id. at 227-28 & 349-50; her boyfriend, Martin David Du ncan, and Mr. Thayer then went outside, id. at 229. Mr. Thayer retrieved a pistol from the trunk of his car and fired, but the shot missed Mr. Duncan. Id. at 233-34. Thereafter, Mr. Thayer and Mr. Duncan got into a fi ght, with others attempting to wrest the gun away from Mr. Thayer. Id. at 235. During this struggle, Mr. Duncan was shot. Id. Mr. Thayer maintains that he acted in self-defens e: the first shot was a warning shot, and the second was i n response to being attacked by a crowd. On November 28, 2001, Mr. Thayer was charged in a four-count indictment with assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. §§ 113(a)(3) and 1153 based upon the f irst shot (Count One); assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153 based upon the second shot (Count Two); use of a fi rearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i ii) (Count Three); and possession of a firearm with an obliterated serial number in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (Count Four). I R. Doc . 1. On May 24, 2002, a jury found Mr. Thayer guilty of a lesser included- 3 -

offense of Count One, aggravated assault by threate ning to use a drawn deadly weapon on another, in violation of 18 U.S.C. § 1153 and Wyo. Stat. Ann. § 6-2- 502(a)(iii); guilty of Count Two; guilty of a lesse r included offense of Count Three, brandishing a firearm during a crime of viol ence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and not guilty on Count Four. II R. Doc. 72. He was sentenced to 34 months imprisonment on Counts One and Two, and seven years on Count Three. Id. Doc. 82. Count three runs consecutive to the co ncurrent sentences on Counts One and Two, to be followed by three years supervised release, concurrent on all counts. Id. Anders holds that if counsel finds an appeal “to be wholl y frivolous, after a conscientious examination of it, he should so advis e the court and request permission to withdraw.” 386 U.S. at 744. Counsel must also submit to the court a brief addressing anything in the record that argu ably supports the appeal, and the defendant must be given the opportunity to rais e any additional points. Id. In the Anders brief filed by appellate counsel, and in Mr. Thaye r’s response brief, the following errors are raised: (1) the tri al court failed to give Mr. Thayer’s instruction on his theory of the case; (2) the jury’s questions regarding the instructions were not properly addressed; (3) the jury instructions were confusing, which in turn caused the jury to reach a n inconsistent verdict; (4) the trial court failed to give a lesser included instru ction under Count One for- 4 -

reckless endangerment, Wyo. Stat. § 6-2-504; and (5 ) Defendant had ineffective assistance of appellate and trial counsel. We have fully examined the proceedings as required by Anders and conclude that the appeal is without merit. First, we find that the trial court adequately instructed the jury as to Defendant’s th eory of self-defense. II R. Doc. 74, Instr. Nos. 56-57. A defendant’s “theory of def ense” instructions may be rejected properly when those instructions are essentially summaries of the evidence in the light most favorable to the defense . United States v. Grissom , 44 F.3d 1507, 1513 (10th Cir. 1995). Second, we find no error in the trial court’s instr ucting the jury, in response to a jury question, that under Count Two of the ind ictment, it was not necessary for the jury to find Defendant intended to assault a particular individual. VII R.
803. See United States v. Benally , 146 F.3d 1232, 1237 (10th Cir. 1998) (specific intent is not required for § 113(a)(6)); United States v. Juvenile Male , 930 F.2d 727, 727-28 (9th Cir. 1991). Moreover, the jury’s second question (about selfdefense and Count Two) was withdrawn when the jury advised the trial court that they had found the answer. VII R. 804. Third, we do not find the jury’s verdict to be inco nsistent. Mr. Thayer’s alleged inconsistency is the fact that the jury acq uitted him of Count Three (discharge of a firearm during a crime of violence) , finding him guilty of the- 5 -

lesser included offense of brandishing a firearm du ring a crime of violence, while also convicting him for two counts of assault. Whe n the trial court instructed the jury regarding Count Three, however, the court stat ed that the underlying “crime of violence” upon which they based their verdict co uld be eitherthe offense in Count One (based on the first shot fired, which didnot hit anyone), orthe offense in Count Two (based on the second shot fired into the victim’s chest), or both . II R. Doc. 74, Instr. No. 45. Therefore, the finding of brandishing in Count Three is entirely consistent with the jury’s verdict in Count One, threatening to use a drawn deadly weapon on another. Moreover, even if the jury’s verdict were inconsistent, “[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indi ctment.” Dunn v. United States , 284 U.S. 390, 393 (1932); United States v. Galbraith , 20 F.3d 1054, 1057 (10th Cir. 1994). Fourth, we do not agree with Mr. Thayer that reckle ss endangerment, Wyo. Stat. Ann. § 6-2-504, is a lesser included offense to assault with a dangerous weapon with intent to do bodily harm, 18 U.S.C. §§ 113(a)(3) & 1153. It is settled law that “[w]here the lesser offense requires an el ement not required for the greater offense,” a defendant is not entitled to a lesser included offense instruction. Schmuck v. United States , 489 U.S. 705, 716 (1989). Recklessness is not a required element of assault with a dangero us weapon, and therefore the- 6 -

elements of reckless endangerment are not a “subset ” of assault with a dangerous weapon. Id. Finally, as for Mr. Thayer’s claims of ineffective assistance of counsel, we have held that “[i]neffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all wi ll be dismissed.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). We therefor e decline to review the ineffective assistance claims here. DISMISSED. Counsel’s request to withdraw is GRANTE D.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge