Brende v. Young

Decision Date30 October 2018
Docket NumberNo. 17-1524,17-1524
Citation907 F.3d 1080
Parties Steven Allen BRENDE, Petitioner-Appellant v. Darin YOUNG, Warden; Marty Jackley, Attorney General of the State of South Dakota, Respondents-Appellees
CourtU.S. Court of Appeals — Eighth Circuit

907 F.3d 1080

Steven Allen BRENDE, Petitioner-Appellant
v.
Darin YOUNG, Warden; Marty Jackley, Attorney General of the State of South Dakota, Respondents-Appellees

No. 17-1524

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2018
Filed: October 30, 2018
Rehearing and Rehearing En Banc Denied November 28, 2018


Counsel who presented argument on behalf of the appellant was Steven R. Morrison, of Grand Forks, ND. The following attorney(s) appeared on the appellant's brief; Steven R. Morrison, of Grand Forks, ND.

Counsel who presented argument on behalf of the appellees was Mikal Gene Hanson, AAG, of Pierre, SD. The following attorney(s) appeared on the appellees' brief; Patricia Archer, AAG, of Pierre, SD.

Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*

PER CURIAM.

Steven Allen Brende appeals from the district court's1 'dismissal of his petition for habeas corpus under 28 U.S.C. § 2254. We affirm.

I. Background

In 2012, Brende was tried in South Dakota state court on two counts of first-degree rape and two counts of sexual contact with a child under the age of 16. All four counts were based on sexual abuse against the son (C.I.) of Brende's friends. C.I. was six or seven years old2 when the acts occurred. At the time of trial, C.I. was nine years old. The trial evidence included

907 F.3d 1082

testimony from C.I.; a video interview of C.I. conducted shortly after the allegations surfaced; and the testimony of Colleen Brazil, the person who conducted the video interview.

Brazil is a trained forensic interviewer with expertise in child sex crimes. She worked for Child's Voice, a child abuse advocacy and evaluation center. The court admitted the video of Brazil's interview of C.I. for its substantive value, and the jury viewed it. The videotaped conversation lasted about an hour. In the video, Brazil discussed C.I.'s understanding that he was not to lie or offer an answer to a question if he did not know the answer. Brazil and C.I. discussed the boy's life generally and spoke specifically about his allegations against "Uncle Steve." C.I. claimed that Brende had shown him pornography and discussed sex with him. C.I.'s allegation went much further and included Brende masturbating in front of him. According to C.I., Brende placed C.I.'s penis into Brende's behind, penetrated C.I. anally, and performed oral sex on C.I. Despite having spent nights at Brende's house on multiple occasions, C.I. recalled that all the abusive acts occurred on a single night.

When C.I. took the witness stand at trial, he partially recanted his statement in the video. He clarified that Brende did not penetrate him anally but instead had actually placed his penis into the crack of his behind. He also recanted his statement that Brende had made him place his penis into Brende's behind. Additionally, C.I. testified that Brende had touched C.I.'s penis. C.I. made no mention of oral sex when he was on the witness stand.

Brende was convicted on all four counts. One rape conviction was based on the allegation that Brende had performed oral sex on C.I. The other was based on Brende's anal sexual contact with C.I. Brende received 50 years for the rape convictions and 15 years for the sexual contact convictions, to be served concurrently.

On direct appeal, Brende made three claims: (1) that the indictment was duplicative; (2) that the evidence was insufficient to support his convictions; and (3) that his sentence was cruel and unusual. State v. Brende , 835 N.W.2d 131, 137 (S.D. 2013). The South Dakota Supreme Court denied two of his claims, but it reversed the anal rape conviction, holding that there was insufficient evidence of penetration. Id. at 143. The trial court entered an amended judgment reflecting acquittal on that count in October 2013.

Brende filed a pro se habeas petition in state court in November 2013. Though stated somewhat inartfully, Brende's petition appeared to raise three main points. He asserted that (1) his remaining rape conviction lacked forensic evidentiary support; (2) C.I. and his family lied; and (3) someone tampered with the Child's Voice DVD. Counsel was appointed and subsequently filed an amended petition with different assertions of error. Specifically, counsel alleged that the jury should have been given a unanimity instruction, Brazil's testimony improperly vouched for the veracity of the statements C.I. made in the interview, and trial counsel should have requested a bill of particulars. Brende also filed a pro se supplement to his attorney's petition. Following an evidentiary hearing in December 2014, the state habeas court entered an order denying relief on all claims in February 2015. The South Dakota Supreme Court summarily affirmed this decision. Brende v. Young , 881 N.W.2d 257 (S.D. 2016).

Brende filed his pro se federal habeas petition in June 2016. The state moved to dismiss. Brende made a number of claims, but the magistrate judge3 to whom the

907 F.3d 1083

matter was referred determined that it was empowered to rule on only one of them: Brende's argument challenging the sufficiency of the evidence supporting his conviction for oral rape. The magistrate judge acknowledged that this was a close case, stating:

There are numerous facts in the record which make this court hesitate: the fact that the child witness testified at trial he regularly sees ghosts and talks to them, that a knife appeared under his pillow while he was sleeping and he did not place it there, that he hits himself sometimes at school, screams, calls himself "stupid" and has "fits." At least some of this behavior pre-dated the allegations of abuse against Mr. Brende.

The inconsistencies in the child's description of events both during his live trial testimony and during his videotaped statement also give one pause. In the videotaped interview, the child often changes details of his description such as which order events happened in, where each event happened, and the state of undress of the child and Mr. Brende at various times. He clearly stated in the videotaped interview that Mr. Brende placed his penis on the inside of the child's butt. But in response to a question from the interviewer whether anything Mr. Brende did to the child was painful or hurt, the child answered "no." Even at trial, his testimony varied significantly. During his direct testimony, the child testified Mr. Brende placed his penis inside the child's butt. On cross-examination, the child testified Mr. Brende's penis was only on the outside of the child's butt in the butt crack.

There are other aspects of the child's testimony that differ significantly from testimony
...

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  • Harmon v. Sharp
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 29 Agosto 2019
    ...claims to the District Court, we will not entertain them in the first instance" (footnote omitted)). But see Brende v. Young , 907 F.3d 1080, 1084 (8th Cir. 2018) (per curiam) ("Issues not properly preserved at the district court level and presented for the first time on appeal ordinarily w......
  • Custer v. Frakes
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    • U.S. District Court — District of Nebraska
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    ...that the evidence satisfied the Jackson sufficiency of the evidence standard both incorrect and unreasonable.Brende v. Young, 907 F.3d 1080, 1085 (8th Cir. 2018), cert. denied, 140 S. Ct. 74 (2019), reh'g denied, 140 S. Ct. 634 (2019) (quoting Nash v. Russell, 807 F.3d 892, 897 (8th Cir. 20......
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    ...error infringes upon a specific constitutional protection or is so prejudicial as to be a denial of due process.” Brende v. Young, 907 F.3d 1080, 1084 (8th Cir. 2018) (quoting Rousan v. Roper, 436 F.3d 951, 958 Cir. 2006)). Federal habeas review exists only “as ‘a guard against extreme malf......
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    ...that the evidence satisfied the Jackson sufficiency of the evidence standard both incorrect and unreasonable.Brende v. Young, 907 F.3d 1080, 1085 (8th Cir. 2018), cert. denied, 140 S. Ct. 74 (2019), reh'g denied, 140 S. Ct. 634 (2019) (quoting Nash v. Russell, 807 F.3d 892, 897 (8th Cir. 20......
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