NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL AARON STUKER, Defendant - Appellant. No. 12-30230 D.C. No. 1:11-cr-00097-RFC-1
MEMORANDUM *

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL AARON STUKER, Defendant - Appellant. No. 12-30231 D.C. No. 1:11-cr-00096-RFC-2

Appeal from the United States District Court for the District of Montana Richard F. Cebull, Senior District Judge, Presiding 

# FILED
NOV 07 2013 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1Argued and Submitted October 10, 2013 Portland, Oregon Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges. Defendant-Appellant Michael Aaron Stuke r appeals his separate convictions for witness tampering under 18 U.S.C. § 1512(a)(2)(A) and assault on a federal officer under 18 U.S.C. § 111. In the witness tampering case, he argues that a twelve year-old child’s identification should have been suppressed because law enforcement’s photo lineup was unduly suggestive and the court abused its discretion by refusing to allow the jury to view the premises so as to understand the child’s vantage point. In the assault cas e, he argues that there was insufficient evidence to convict him where he only caused minimal damage and no injuries when he backed into a deputy Marshal’s vehi cle. He also claims that the district court erred in rejecting his proposed jury instruction and applying the sentencing base offense level for “Aggravated Assau lt.” We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1 I A witness identification should be suppr essed only where it has been tainted by law enforcement procedures that we re “suggestive and unnecessary” so as to

1 Because the parties are familiar with th e history of the case, we repeat only those facts necessary to explain our decision. 2render it unreliable. See Perry v. New Hampshire , 132 S. Ct. 716, 724-25 (2012). Regardless of whether the procedure he re was unnecessarily suggestive, it was sufficiently reliable given that the witness had a sufficient opportunity to observe Stuker, had a sufficient view of Stuker to identify him, and expressed no hesitancy when he identified Stuker. See United States v. Montgomery , 150 F.3d 983, 993 (9th Cir. 1998). Moreover, even if the identification was unreliable, its admission was harmless given the other evidence against Stuker. In addition to the child, the witness tampering victim also identified Stuker and indicated that he knew Stuker. Furthermore, much of Stuker’s own conduc t and statements were incriminating as he: (a) fled from law enforcement; (b) initially denied knowing the victim before admitting that he did know him; (c) appeared to know that he was wanted for witness tampering; (d) admitted that he wa s friends with and would “help” out the defendant in the upcoming trial; and (e) admitted that he previously pulled a gun on the victim. Although Stuker’s fiancee tes tified that he was with her on the day in question, Stuker initially told law enfo rcement that he was unsure where he was on that day, and the evidence indicated that he was “running around getting high” for a two day period around that same time. On these facts, the child’s identification did not have a “substantial and injurious effect or influence in 3determining the verdict.” Williams v. Stewart , 441 F.3d 1030, 1039 (9th Cir. 2006). II Stuker argues that the district court abused its discretion when it denied his motion for the jury to view the doorway wh ere the child witnessed the incident. A district court acts within its discretion in denying a motion for a jury viewing where the conditions of the premises ar e adequately shown by other evidence. See Hametner v. Villena , 361 F.2d 445,445-46 (9th Cir. 1966) (concluding that the trial court could properly deny a jury viewing where the evidence included photographs and a surveyor’s diagram of the scene and it would likely cause delay and inconvenience). Here, both sides introdu ced testimony, photographs, and drawings relating to the child’s view. Consequently, the district court acted within its discretion in denying Stuker’s motion for a jury viewing. III Stuker argues that there was insuffici ent evidence to support the assault conviction because he used his vehicle “sol ely as a means to flee” rather than as a deadly weapon. We review the sufficiency of th e evidence to support a conviction “to determine whether ‘after viewing the ev idence in the light most favorable to the prosecution, any rational trier of fact coul d have found the essential elements of the 4crime beyond a reasonable doubt.’” United States v. Nevils , 598 F.3d 1158, 1163- 64 (9th Cir. 2010) (en banc). There was evidence indicating that Stuker began backing up his vehicle, then paused, and then rapidly accelerated 10 to 30 feet backwards into the deputy Marshal’s vehicle. Although there was mi nimal damage to the vehicle and the deputy was not injured, the deputy testifie d that he was in reasonable apprehension of immediate bodily injury. Under our precedent, this evidence was sufficient to support the conviction. See United States v. Anchrum , 590 F.3d 795, 799-803 (9th Cir. 2009). IV Stuker further asserts that the distri ct court erred by rejecting his proposed jury instruction that using “a car purely for flight would not satisfy the requirement of using the car as a deadly weapon.” Stuker’s theory was adequately covered by the district court’s instructions, which indi cated that the jury had to find that Stuker used the vehicle “in a way that is capableof causing death or serious bodily injury” in order to convict. See United States v. Romm , 455 F.3d 990, 1002 (9th Cir. 2006). V

5The district court applied the baseoffense level of 14 for “Aggravated Assault” under Sentencing Guideline § 2A2. 2. Stuker argues that the court should have applied § 2A2.4 (relati ng to “Obstructing or Impeding Officers”), which has a base offense level of 10, because it wa s more appropriate and there was “no evidence” that Stuker intended to cause bodily injury. The district court’s finding that Stuker intentionally used his vehi cle as a weapon by accelerating backwards into the deputy’s vehicle was adequately supported by evidence that Stuker paused before accelerating. Additionally, as Stuker was charged with and found guilty of assault with a dangerous weapon, the “Aggr avated Assault” base offense level was appropriate. AFFIRMED.

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