U.S. v. Bear Stops, 92-3125

• Decision Date: 15 September 1993
• Docket Number: No. 92-3125,92-3125
• Citation: 997 F.2d 451
• Parties: 38 Fed. R. Evid. Serv. 352 UNITED STATES of America, Appellee, v. Kermit Oris BEAR STOPS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 451

997 F.2d 451

38 Fed. R. Evid. Serv. 352

UNITED STATES of America, Appellee, v. Kermit Oris BEAR STOPS, Appellant.

No. 92-3125.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 17, 1993.

Decided July 6, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

15, 1993.

Timothy M. Engel, Pierre, SD, argued, for appellant.

Mikal G. Hanson, Pierre, SD, argued (Kevin V. Schieffer, Sioux Falls, SD, and Mikal Hanson, Pierre, SD, on the brief) for appellee.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Kermit Oris Bear Stops appeals his conviction of aggravated sexual abuse of P.M., in violation of 18 U.S.C. §§ 2241(c) and 2245(2)(A) (count I); his conviction of aggravated sexual abuse of his "son," ¹ B.B., in violation of 18 U.S.C. §§ 2241(c) and 2245(2)(A) (count II); and his conviction of abusive sexual contact with B.B., in violation of 18 U.S.C. §§ 2244(a)(1), 2241(c), and 2245(3) (count III). Bear Stops challenges several evidentiary rulings made during the seven-day trial and claims that the district court erred in refusing to declare a mistrial. We reverse the conviction of Bear Stops on count I of the indictment and affirm the conviction of Bear Stops on counts II and III.

I.

Bear Stops lived with T.M. and her son, P.M., periodically from approximately 1984 until February of 1990. During this time, B.B. was born. Depending on the state of Bear Stops and T.M's unstable relationship, T.M. and her children, P.M., B.B., and a younger daughter, S.B., lived either in Fort Yates, North Dakota, or in the Red Scaffold/Cherry Creek area on the Cheyenne River Indian reservation in South Dakota. Bear Stops's family lived in the Red Scaffold/Cherry Creek area, and T.M.'s parents lived in Fort Yates.

In September of 1989, P.M. was living with his grandparents in Fort Yates. When doing dishes by the sink with his grandmother, P.M. told her that he had been sexually abused by Bear Stops, and she then relayed this information to T.M. T.M. confronted Bear Stops and a fight ensued. T.M. left Bear Stops, taking B.B. with her, and went to stay in a woman's shelter in South Dakota. Once they were no longer living with Bear Stops, B.B. told T.M. that Bear Stops had sexually abused him also.

Bear Stops was subsequently charged in count I of the indictment with knowingly engaging in a sexual act, specifically contact between the penis and anus, with P.M. at Red Scaffold on or about April 3, 1988, when P.M. was six years old. In count II, Bear Stops was also charged with knowingly engaging in a sexual act, specifically contact between the penis and anus, with B.B. at Red Scaffold. In count III, the indictment alleged that Bear Stops knowingly caused B.B. to engage in sexual contact, specifically intentional touching of the child's genitalia, groin, anus, and inner thigh with the intent to abuse, humiliate, harass, and degrade B.B., and to arouse and gratify defendant's sexual desire, at Red Scaffold. B.B. was approximately four years old at the time of the crimes charged in counts II and III.

At trial the government submitted evidence to prove count I. The child victim P.M. testified, as did his mother and grandparents, a psychologist, social workers, an elementary school counselor, and an official who investigated the case. Expert testimony was presented of the symptoms exhibited by a child who has been the victim of child abuse. Bear Stops denied that he sexually assaulted P.M., presented an alibi defense for the few days surrounding the approximate date listed in the indictment, introduced testimony demonstrating inconsistencies between the description of the assault given by P.M., and attempted to submit evidence regarding prior sexual assaults of P.M. by other persons. The evidence regarding the prior sexual assaults was largely excluded by the district court. With respect to counts II and III, the government presented the testimony of the child victim B.B., as well as the testimony of his mother, of a social worker, and of a pediatrician. The expert testimony presented regarding the symptoms of a sexually abused child also pertained to the counts involving B.B. Bear Stops denied the allegations with respect to B.B.

Because the evidentiary issues and issue of the denial of the motion for mistrial are closely interwoven with the facts, the remaining factual background will be addressed as the facts arise in the discussion of the issues. Bear Stops raises several evidentiary issues, most challenging the exclusion of evidence indicating that P.M. had been assaulted by other persons. Bear Stops also argues that the district court erred when it refused to declare a mistrial.

II.

Bear Stops moved pursuant to Federal Rule of Evidence 412 to introduce evidence of sexual abuse of P.M. committed by persons other than Bear Stops. Bear Stops made numerous offers of proof during trial regarding that evidence. The district court excluded the evidence in large part based upon Federal Rule of Evidence 403. Bear Stops's motion for mistrial because of the exclusion was denied. On appeal, Bear Stops argues that the exclusion of such evidence violated his Sixth Amendment right to effective confrontation and cross-examination and his due process rights under the Fifth Amendment. Bear Stops specifically argues that the evidence of sexual abuse of P.M. by persons other than Bear Stops is constitutionally required to be admitted (1) to provide an alternative explanation for the characteristics identified as frequently observed in sexually abused children and exhibited by P.M.; (2) to provide an alternative explanation to testimony regarding P.M.'s alleged bloody underwear; (3) to establish an alternative source for P.M.'s sexual knowledge; (4) to challenge the accuracy of the child's identification of the perpetrator; and (5) to challenge the credibility of P.M. The government contends that Rules 403 and 412 precluded the admission of such evidence. We agree with Bear Stops but only for the first two reasons.

A.

Bear Stops offered uncontroverted evidence of an incident in 1988, when P.M. was six years old and staying with Bear Stops's sister, Delores Cook, at Red Scaffold, South Dakota, in which P.M. was taken under a bridge and sexually assaulted, specifically anal penetration by the penis, by three older boys ages nine, ten, and twelve. The assault by the three older boys occurred approximately during the same time period as count I's alleged sexual abuse by Bear Stops.

At trial, Debra Baune, a licensed clinical social worker, testified that sexually abused children often exhibit regressive behaviors, such as bed wetting after being potty trained, hyperactivity, aggressiveness, and nightmares, and the children may also act out sexually as a result of the emotional trauma caused by the abuse. Trial transcript (Tr.) 118-20. Dr. Bean, a licensed psychiatrist, testified likewise. Tr. 788-89. P.M.'s grandparents and mother each testified that P.M. had shown such behaviors after he had been in Red Scaffold. Tr. 240-41, 249, 251, 279-80, 291, 354-55. Bear Stops asserts that because of the government's evidence that P.M. exhibited the symptoms of a sexually abused child, the jury determined that P.M. must have been sexually abused. Bear Stops concludes that the jury assumed that the perpetrator of the sexual abuse must have been Bear Stops unless he can put forth an alternative explanation for P.M.'s symptoms by submitting evidence of the uncontroverted sexual assault inflicted by the three boys. Bear Stops argues that the exclusion of this evidence denied him his constitutional right to a fair trial.

"The Sixth Amendment right to confrontation and the Fifth Amendment right to due process of law require only that the accused be permitted to introduce all relevant and admissible evidence." United States v. Kasto, 584 F.2d 268, 272 (8th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979). See Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975) ("In short, the [Sixth] Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it." (citation omitted)). The Supreme Court has stated that "the right to present relevant testimony is not without limitation." Michigan v. Lucas, --- U.S. ----, ----, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991).

"The right 'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.' " Rock v. Arkansas, 483 U.S. 44, 55 [107 S.Ct. 2704, 2711, 97 L.Ed.2d 37] (1987), quoting Chambers v. Mississippi, 410 U.S. 284, 295 [93 S.Ct. 1038, 1046, 35 L.Ed.2d 297] (1973). We have explained, for example, that "trial judges retain wide latitude" to limit reasonably a criminal defendant's right to cross-examine a witness "based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 [106 S.Ct. 1431, 1435, 89 L.Ed.2d 674] (1986).

Lucas, --- U.S. at ----, 111 S.Ct. at 1746. "Restrictions on criminal defendant's rights to confront adverse witnesses and to present evidence 'may not be arbitrary or disproportionate to the purposes they are designed to serve.' " Id., --- U.S. at ----, at 1747 (quoting Rock v. Arkansas, 483 U.S. at 56, 107 S.Ct. at 2711).

The district court acknowledged that the proffered evidence, when offered to establish an alternative explanation for why P.M. exhibited the behavioral manifestations of a sexually abused child, was relevant and probative on that point. Fed.R.Evid. 402. We agree. This point was an important one at trial because little physical evidence of the alleged sexual assault was presented and because P.M. had been somewhat inconsistent in describing the details regarding the alleged assault or assaults by Bear Stops. With the proof that P.M....