U.S. v. Water

Citation413 F.3d 812
Decision Date11 July 2005
Docket NumberNo. 04-1837.,No. 04-1934.,04-1837.,04-1934.
PartiesUNITED STATES of America, Appellee/Cross-Appellant, v. Tyler WATER, Appellant/Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Jeffrey L. Viken, argued, Rapid City, SD (Monica D. Thomas, on brief), for appellant/cross-appellee.

Mara M. Kohn, argued, Asst. U.S. Atty., Rapid City, SD (Carolyn G. Royce and Mark Salter, on brief), for appellee/cross-appellant.

Before SMITH, LAY, and BENTON, Circuit Judges.

SMITH, Circuit Judge.

I. Introduction

Tyler Water was convicted of second-degree murder in the United States District Court for the District of South Dakota for the shooting death of his friend Jeno Chief ("Chief"). Tyler Water argues on appeal that the district court erred in denying his motion for judgment of acquittal because there was insufficient evidence to show malice, which is an element of second-degree murder. Tyler Water also appeals the admission of hearsay evidence. Finally, Tyler Water appeals an obstruction of justice enhancement under U.S.S.G. § 3C1.1. The government cross-appeals and argues that the district court improperly granted a two point decrease in offense level based on acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. For the following reasons, the judgment of the district court is affirmed.

II. Background

A group of young people gathered for a party at House 33, Northridge Housing Development, Pine Ridge, South Dakota. The residents of House 33 included Tyler Water and several of his family members. Tyler Water's brother, Garrett Water, did not reside at House 33, but stayed "here and there." Others who attended the party lived next door at House 32 owned by Rita Running Shield. Rita's twin sons, Wes and Les Running Shield, and daughter, Jessica Running Shield, along with Jessica Running Shield's son, Terrence, all lived at House 32. Chief dated Jessica Running Shield and was Terrence's father. Chief and Tyler Water were best friends, and Chief was also staying at the Water residence. The party began in the Water basement bedroom about 9:00 p.m. Tyler Water arrived about 10:00 p.m. During the course of the evening, the group smoked marijuana and consumed alcohol in substantial quantities.

Earlier in the day, Garrett Water acquired a .22 caliber revolver and ammunition. At the party, Garrett Water, and others including Chief and Tyler Water fired the weapon for amusement. After the group consumed about a case of beer, Garrett Water allowed Tyler Water to handle the revolver. Tyler Water opened the revolver and replaced two live rounds that fell out. According to Garrett Water, Tyler Water sprang the barrel and removed all the bullets, which Garrett Water placed in his pocket where they remained for the evening. Tyler Water continued to play with the empty revolver—pointing it around but not pulling the trigger. Tyler Water even held the revolver to his own head and mouth and pretended as if he was going to pull the trigger.

Eventually, Chief and Tyler Water decided to scare Jessica Running Shield by making it look as if the revolver was loaded. They took empty bullet casings and put the spent casings in the revolver so that it would appear loaded. According to Jessica Running Shield, Tyler Water put one bullet in the chamber and spun it "while it was laying out." Tyler Water closed the revolver, pointed it, and pulled the trigger. Garrett Water thought the joke scared Jessica Running Shield, but she was not frightened. In any event, Chief was laughing and pointing the revolver at Jessica Running Shield, clicking the trigger. Jessica Running Shield testified that Tyler Water put in two shells, one at a time, spinning the cylinder and clicking the trigger. She did not know if the bullets he put in were live bullets or spent.

Chief and Tyler Water also started teasing others by pointing the revolver at each other. Tyler Water pointed it at Chief's head and Chief pointed it back at Tyler Water's head, while they both were "laughing around." Eventually, some people wearied of the "fun" and decided to leave the party. Those who stayed included Jessica Running Shield, Tyler Water, Chief, and Garrett Water. All who remained continued to play with and handle the revolver. Chief and Tyler Water left the bedroom and were standing near the laundry area talking and drinking with Garrett Water. Jessica Running Shield briefly joined Chief, Tyler Water, and Garrett Water outside the bedroom before going next door, leaving Garrett Water, Chief, and Tyler Water drinking in the basement of House 33. Chief continued the reckless recreation of pointing the revolver in jest at Tyler Water and also himself. Tyler Water then took the revolver from Chief and repeated the now routine ritual of pointing the revolver toward himself and Chief. Unfortunately, this time when Tyler Water pulled the trigger three times in succession, the revolver dry fired twice and fatally shot Chief on the third click.

After the revolver discharged, Tyler Water ran next door to House 32 and was described at trial as upset, crying, in shock, and apologetic. Tyler Water then gave the revolver to Wes Running Shield, who said he would get rid of it or hide it. Tyler Water then took off running into the hills.

An Oglala Sioux Tribe ("OST") Emergency Medical Team ("EMT") unit arrived first on the scene. OST paramedic James Atchinson testified that someone drove up and reported the shooting to the OST dispatcher, and the ambulance responded. OST Police Officer Tony Long Soldier ("Officer Long Soldier") arrived next. Then Bureau of Indian Affairs ("BIA") Officer Fred Bennett III ("Officer Bennett") arrived. Garrett Water, who was at the scene when police arrived, spoke with Officer Long Soldier and Officer Bennett.

Officer Bennett interviewed Tyler Water the afternoon following the shooting. Tyler Water told him that he constantly checked the revolver to make sure it was unloaded. According to Officer Bennett, Tyler Water stated that Chief had some bullets in his pocket and called Tyler Water into the laundry room while Chief loaded the revolver. Officer Bennett did not ask whether Tyler Water realized there were live rounds in the revolver. However, Tyler Water explained that he did not mean for the revolver to discharge and that he did not intend to harm Chief. Tyler Water assisted in the retrieving of the gun and was subsequently charged with second-degree murder.

At trial, Officer Long Soldier testified that Garrett Water stated that Tyler Water had placed a live round in the revolver and then shot Chief. Tyler Water's hearsay objections to these statements were overruled. At the close of the government's evidence and at the close of all the evidence, Tyler Water moved for acquittal, arguing that the government's evidence was insufficient to show malice, a necessary element of second-degree murder. The district court denied both motions. The jury convicted Tyler Water of second-degree murder. At sentencing, the district court granted the government's motion for an obstruction of justice enhancement under U.S.S.G. § 3C1.1 based upon Tyler Water's attempts to conceal the revolver. The district court sentenced Tyler Water to 147 months' incarceration and five years supervised release. The district court then granted his request for a two-level acceptance of responsibility decrease under U.S.S.G. § 3E1.1. This appeal followed.

III. Discussion
A. Motion for Judgment of Acquittal

Tyler Water's first argument on appeal is that the district court did not apply the correct legal standard in evaluating his motion for directed verdict and motion for judgment of acquittal. The denial of a motion for judgment of acquittal is reviewed de novo. United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004). Rule 29 of the Federal Rules of Criminal Procedure provides that:

After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government's evidence, the defendant may offer evidence without having reserved the right to do so.

In reviewing the sufficiency of the evidence on appeal, we "view the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict." United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992). Criminal "conviction[s] may be based on circumstantial as well as direct evidence. The evidence need not exclude every reasonable hypothesis except guilt." Id. We will uphold the conviction against a challenge to the sufficiency of the evidence unless a reasonable factfinder would have entertained a reasonable doubt about the government's proof of one of the offense's essential elements. United States v. French, 88 F.3d 686, 687-88 (8th Cir.1996); see also Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard applies even when the conviction rests entirely on circumstantial evidence. United States v. Wilcox, 50 F.3d 600, 602-03 (8th Cir.1995).

In determining the strength of the evidence in a circumstantial case, "it is the totality of the circumstances that must be weighed in making a decision on a motion for acquittal." United States v. Kelton, 519 F.2d 366, 367 (8th Cir.1975). If the government's evidence "is equally strong to infer innocence . . . as to infer guilt, the verdict must be one of not guilty and the court has a duty to direct an acquittal." United States v. Kelton, 446 F.2d 669, 671 (8th Cir.1971); see also United States v. Davis, 103...

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