Submitted: November 17, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, SHEPHERD, and KELLY, Circuit Judges.
BENTON, Circuit Judge.
M. Thomas appeals his convictions for domestic assault by an
habitual offender and assaulting an intimate partner by
suffocation or attempted suffocation, in violation of 18
U.S.C. §§ 113(a)(8), 117, and 1153. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
trial, Thomas's girlfriend, Morgyn Redhorn, testified
that he pushed her onto a couch, plugged her nose, covered
her mouth, and threatened to "put me out." Redhorn
said she struggled to breathe, was afraid she might lose
consciousness, and feared for her life. A neighbor testified
she heard screams "like someone was in trouble."
Police, responding to the scene, testified Redhorn had a
swollen lip, red face, and was visibly upset. At the close of
evidence, the district court denied Thomas's motion for
judgment of acquittal. The jury convicted on both counts.
sentencing, the district court shared a conversation it had
with the jury immediately after the verdict:
As the lawyers know, every time there's a jury trial, I
go back and I meet with the jury to thank them, and I never
of course inquire about anything concerning deliberations. I
invite them to ask me questions about the general court
operation, if they have questions.
But as soon as I went back to meet with this jury, they did
say we want you to know we did not think that the defendant
intended to hurt this victim. We believe his actions were
negligent. Now, of course, under the instruction the term
negligence isn't used, the term recklessness is used, and
so it can be inferred with some certainty that the jury
concluded the defendant's actions were reckless.
I'll also note that while the defendant's actions
were completely inexcusable and the evidence demonstrated
that he did cover the victim's mouth and nose and impeded
her breathing and did that repeatedly, it appeared from the
evidence that the defendant was not attempting to cut the
victim off from all oxygen but was attempting to stop her
from screaming, and that's not an excuse for his conduct.
His conduct violated the statute, and he was guilty of the
district court sentenced him to 37 months' imprisonment
on each count, to be served concurrently.
appeals, arguing the jury's statement shows there is
insufficient evidence to support the verdict, and the jury