United States v. Harlan, 15–1552.

Citation815 F.3d 1100
Decision Date16 February 2016
Docket NumberNo. 15–1552.,15–1552.
Parties UNITED STATES of America, Plaintiff–Appellee v. Terry L. HARLAN, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Douglas H. Partridge, argued, David E. Copple, on the brief, Norfolk, NE, for appellant.

Douglas R. Semisch, AUSA, argued, Omaha, NE, for appellee.

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

RILEY

, Chief Judge.

A jury found Terry Lee Harlan, a Native American man, guilty of domestic assault in Indian country by an habitual offender in violation of 18 U.S.C. § 117

. The district court1 sentenced Harlan to 41 months imprisonment. Harlan appeals his conviction and sentence. With jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND2

Harlan lived with his girlfriend Marlene Freemont, a Native American woman, in his trailer home on the Omaha Indian Reservation. Freemont moved out for two weeks early in 2014 and spent some time with another man. When Harlan and Freemont got back together in March, Freemont lied about seeing another man for fear Harlan would hit her. Harlan, who earlier had seen Freemont with the man, got mad about the lie and hit the windshield of the car he and Freemont were sitting in.

On March 6, 2014, the evening Freemont returned, she and Harlan drank beer together and Freemont, a long-time methamphetamine user, got high. Harlan eventually went to bed, but Freemont stayed up all night drinking beer into the next day. Harlan stayed sober for a while the next day, but began drinking with Freemont again in the evening. Both were drunk by 8:00 p.m., and Freemont was still high on meth from the day before.

Harlan's sister, Andrea Harlan, and Harlan's thirteen-year-old daughter, K.H., joined the couple at the trailer later that night. Harlan and Freemont adjourned to the bedroom to keep drinking and watch television. Harlan got mad when Freemont mentioned the other man she dated and pushed Freemont into the closet with both hands. Despite Freemont's pleas for Harlan to stop, he grabbed her by the hair and struck her face and head about eight times. Freemont fell to the floor, and Harlan kicked her body twice.

When Harlan stopped, Freemont reached for her shoes and sweater so she could leave, but Harlan tossed them aside and began hitting her again, asking whether she intended to see another man. Harlan then ordered Freemont to lay on their bed while he went to sleep. After Harlan passed out, Freemont left the trailer to report the beating to the police. On her way out, Freemont asked Andrea if she had seen Freemont's sweater. She had not, so, despite the cold weather, Freemont left the trailer wearing only a short-sleeved shirt and sweat pants. As she left, Freemont told Andrea to tell Harlan that Freemont was going to report what Harlan had done.

No one was at the police station when Freemont arrived. She was able to flag down an officer from a nearby town who contacted Omaha Nation Law Enforcement Services, the department with jurisdiction over assaults between Native Americans on the reservation. Officer William Webster responded and took Freemont's statement and examined her injuries. Officer Webster called an ambulance so a member of the rescue squad could evaluate Freemont's injuries and arranged for Freemont to spend the night in jail to sleep off her substantial intoxication.

After her release early the next morning, Freemont sought treatment at Indian Health Services Hospital in Winnebago, Nebraska, reporting she had been assaulted. Physician assistant Carmel Berglin, who has extensive experience treating assault victims, examined Freemont. Freemont told Berglin that Harlan punched her in the face and chest and grabbed her right arm.

Berglin observed multiple contusions, including a bruise over Freemont's right cheek bone, and tenderness on Freemont's face and head. Berglin also noted a large contusion on Freemont's forearm, a bruise on her chest, and tenderness along her ribs.

After the assault, Freemont stayed with her mother. When Freemont did return to the trailer to see Harlan, he told her he was sorry and would not hit her again, but there was nothing he could do about what he had done.

On June 18, 2014, a grand jury charged Harlan with domestic assault in Indian country by an habitual offender. See 18 U.S.C. § 117

. The indictment charged that Harlan had multiple prior convictions for domestic assault, including, as relevant here, a 2002 tribal-court conviction for simple assault and a 2003 federal conviction for assault resulting in serious bodily injury. On October 27, 2014, Harlan filed a motion in limine challenging the admissibility of his 2002 tribal-court conviction.3 Harlan argued the prior conviction was for attempt, not assault. The district court denied the motion.

Harlan's jury trial began on November 17, 2014. The government first called Freemont, who described the assault in vivid detail. Berglin testified Freemont's injuries were entirely consistent with her description of the assault. On cross-examination, Berglin opined some—but not all—of Freemont's injuries could have resulted from a fall.

The government next called Freemont's sister Delilah Freemont (Delilah), who had an intimate relationship with Harlan more than a decade earlier. While they were together, Harlan assaulted Delilah multiple times. Over Harlan's renewed objection, the district court admitted three exhibits showing two of Harlan's prior assault convictions. Exhibits 1 and 2 described Harlan's 2003 federal conviction for assaulting Delilah and causing serious bodily injury. Exhibit 3 documented Harlan's 2002 tribal-court conviction for simple assault on Delilah. After briefly acknowledging her past relationship with Harlan, Delilah stated that a week after the assault on Freemont, Delilah observed injuries on Freemont consistent with Freemont's description of the assault.

Harlan's sister Andrea testified that on the night of the charged assault, she returned to the trailer where she lived with Harlan and Freemont. Andrea stated she and K.H. watched television in the living room when Harlan and Freemont went to the bedroom. Both Harlan and Freemont were drinking alcohol, and Harlan needed help to the bedroom because he was physically impaired by the alcohol. Andrea soon heard arguing. When she went to the bedroom to investigate, Andrea learned Harlan was mad because Freemont would not go to bed and let him sleep.

Andrea denied hearing anything suggesting a physical struggle, assault, or someone falling down. Andrea testified Freemont later came out of the bedroom asking for a sweater, but left without one when Andrea told her she did not have one. Andrea did not notice any bleeding or other signs of a fight when Freemont left the trailer and testified Freemont did not mention any injuries and did not ask for any help. Freemont did not return, but the police arrived thirty to forty minutes later to investigate.

K.H. testified next. K.H. observed Harlan and Freemont drinking and talking at the kitchen table the night of the assault. Shortly after K.H. helped Harlan to the bedroom, K.H. heard yelling and went to the bedroom to see what was happening. K.H. asked Harlan, who appeared to be mad, why he was yelling, and he replied Freemont would not let him sleep.

K.H. made at least two or three trips to the bedroom to investigate the yelling. At one point, K.H. observed Harlan sitting on the bed with Freemont standing nearby. When Harlan moved, Freemont raised her hands to defend herself. K.H. asked why she reacted that way, and Freemont replied she thought Harlan was going to hit her as he had before. K.H. never saw a physical altercation between Harlan and Freemont and did not hear anyone falling down. K.H. did observe Freemont crying, but Freemont explained she was sad about a friend who died. K.H. did not think Freemont looked like she was hurt. Like Andrea, K.H. recalled Freemont later asking for a sweater and leaving the trailer without a sweater even though it was cold. K.H. stated the police arrived about thirty minutes after Freemont left.

Officer Webster testified he took a report from Freemont the night of the assault. Recalling Freemont was not dressed appropriately for the cold weather that night, Officer Webster testified she appeared to be intoxicated and afraid. Freemont told Officer Webster that Harlan had assaulted her, and showed him the injuries to her right cheek and forehead. After taking Freemont to jail and arranging for a medical evaluation, Officer Webster went to Harlan's trailer. Visibly intoxicated, Harlan denied having a physical altercation with Freemont, and Officer Webster did not see any marks on Harlan's hands. Officer Webster arrested Harlan, who needed assistance to walk to the squad car.

The government entered certain factual stipulations about Harlan's prior convictions and his trailer's location in Indian country before resting its case. Harlan did not testify or call any witnesses. On November 19, 2014, the jury found Harlan guilty.

Before sentencing, Harlan moved for a sentence below the advisory United States Sentencing Guidelines (Guidelines) range based on his poor physical health.4 The government resisted the motion, highlighting Harlan's history of assaultive conduct and observing his health problems did not prevent him from getting drunk and assaulting Freemont.

After reviewing Harlan's brief and hearing the parties' arguments, the district court denied Harlan's motion. Troubled by Harlan's failure to accept responsibility for the assault and his lack of remorse for hurting Freemont, the district court sentenced Harlan to 41 months—the bottom of the advisory Guidelines range. Harlan appeals, challenging the admission of his tribal-court conviction, the sufficiency of the evidence, and his sentence.

II. DISCUSSION
A. Harlan's Tribal–Court Conviction

Section 117(a)(1)

provides in relevant part,

Any person who commits a domestic assault within ... Indian country
...

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