U.S. v. Bull

• Decision Date: 26 July 2011
• Docket Number: No. 10–2245.,10–2245.
• Citation: 646 F.3d 1082
• Parties: UNITED STATES of America, Appellee,v.Glen WHITE BULL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

646 F.3d 1082

UNITED STATES of America, Appellee,

v.Glen WHITE BULL, Appellant.

No. 10–2245.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 15, 2011.Filed: July 26, 2011.

William D. Schmidt, AFPD, argued, Bismarck, ND, for appellant.Rick Lee Volk, AUSA, argued, Bismarck, ND, for appellee.Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.SHEPHERD, Circuit Judge.

A jury convicted Glen White Bull of five counts of aggravated sexual abuse under 18 U.S.C. § 2241(c). The district court sentenced White Bull to concurrent sentences of 360 months imprisonment for each count. White Bull appeals, claiming the district court committed numerous trial and sentencing errors. We affirm in part, reverse in part, and remand with instructions.

I.

We recite the facts in the light most favorable to the jury's verdict. Beginning in 2005, White Bull lived in a home on the Standing Rock Indian Reservation in Fort Yates, North Dakota, with his girlfriend, Danielle Plenty Chief. Plenty Chief's children also lived in the home, including the victim of the convicted offenses, S.C.G.1.

On March 9, 2009, White Bull and Plenty Chief were married. The morning after the wedding, Plenty Chief awoke in her bedroom and could not find White Bull. Plenty Chief then asked one of her children, S.C.G.2., to look for White Bull. Eventually, S.C.G.2. walked into the basement of the Fort Yates home, where she observed S.C.G.1., who was nine years old at the time, lying on the floor with White Bull on top of her. S.C.G.1.'s pants were “by her knees,” and White Bull was leaning over her with his pants “below his thighs somewhere.” S.C.G.1. testified that during this incident, her pants and underwear were down and that White Bull was touching her “private part.”

After S.C.G.2. discovered White Bull with S.C.G.1., she immediately took S.C.G.1. to Plenty Chief's bedroom to explain what she had seen. White Bull followed, and when Plenty Chief asked him what had happened, he denied having been in the basement with S.C.G.1. At some point during the discussion in the bedroom, S.C.G.1. said, “Mom. This wasn't the first time.” Neither Plenty Chief nor anyone else in the Fort Yates home called the police that morning and White Bull continued to live with Plenty Chief and her children.

On April 26, 2009, Plenty Chief again asked White Bull about the incident with S.C.G.1. This discussion led to a physical altercation, and Plenty Chief called the police. After the police arrived, Plenty Chief told them about the March 10 incident.

Three days later, Paula Condol, a forensic interviewer at the Dakota Children's Advocacy Center in Bismark, North Dakota, interviewed S.C.G.1. regarding the allegations of sexual abuse. During this interview, S.C.G.1. wrote on a sheet of paper that “it happen [sic] when we went horse riding and on the weit [sic] bench 3 times and on the floor in the basement.” S.C.G.1. also circled the genital area of a gender-neutral body diagram to indicate where White Bull had touched her. The Government then filed an indictment against White Bull, charging him with five counts of aggravated sexual abuse of a child which represented the five separate incidents described by S.C.G.1. After a two-day trial, the jury returned a guilty verdict for each of the five counts.

II.

White Bull claims the district court committed trial error by: 1) denying his motion for judgment of acquittal based on insufficient evidence; 2) admitting prejudicial hearsay testimony; and 3) failing to conduct an evidentiary hearing into possible juror misconduct.

A.

White Bull argues that the evidence at trial was insufficient to convict him of five counts of aggravated sexual abuse under section 2241(c). We review the denial of a motion for a judgment of acquittal under a de novo standard of review. United States v. Espinosa, 585 F.3d 418, 423 (8th Cir.2009). “In reviewing for sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and we will ‘overturn a conviction only if no reasonable jury could have concluded that the defendant was guilty beyond a reasonable doubt on each essential element of the charge.’ ” United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir.2005) (quotation omitted). Moreover, we consider “the same quantum of evidence” that was presented at trial, even if some of the evidence was improperly admitted. Id. (quoting Lockhart v. Nelson, 488 U.S. 33, 40–42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)); see also United States v. Peneaux, 432 F.3d 882, 889 (8th Cir.2005). Finally, “we note that a victim's testimony alone can be sufficient to prove aggravated sexual abuse.” United States v. DeCoteau, 630 F.3d 1091, 1097 (8th Cir.2011).

An individual violates section 2241(c) if he or she “knowingly engages in a sexual act with another person who has not attained the age of 12 years ... or attempts to do so.” 18 U.S.C. § 2241(c). The statute defines a “sexual act” to include “contact between the penis and vulva” which “occurs upon penetration, however slight” as well as “the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2)(A), (D).

In this case, the jury did not specify whether it found White Bull guilty of “knowingly engaging in a sexual act” or merely attempting to do so. As a result, we may uphold the verdict if the evidence is sufficient to support White Bull's conviction under either theory. See United States v. Papakee, 573 F.3d 569, 574 (8th Cir.2009).

1.

Count 5 of the indictment alleged that White Bull committed aggravated sexual abuse on March 10, 2009, in the basement of the Fort Yates home. White Bull argues that the evidence to support his conviction for count 5 was insufficient because the evidence of actual or attempted touching, not through the clothing, of S.C.G.1.'s genitalia was conflicting and not anatomically specific enough to support his conviction.¹

White Bull's first contention—that the evidence at trial was insufficient for a conviction of aggravated sexual abuse because it was conflicting—can be quickly dismissed. At trial, S.C.G.1. testified that her clothes were “on all the way” while she was lying down on the floor of the basement and White Bull was touching her with his “middle.” A few questions later, however, S.C.G.1. said that her pants and her underwear were down at this time. S.C.G.1. further testified that while her pants and underwear were down, White Bull was touching her “private part.”

Even assuming this testimony is inconsistent, it can still constitute sufficient evidence to support White Bull's conviction for count 5. See United States v. Lohnes, 554 F.3d 1166, 1169 (8th Cir.2009); Kenyon, 397 F.3d at 1076. “[I]t is for the jury to resolve conflicting evidence and make credibility determinations, determinations that are ‘virtually unreviewable on appeal.’ ” Lohnes, 554 F.3d at 1169 (quoting United States v. Johnson, 519 F.3d 816, 822 (8th Cir.2008)).

White Bull's contention regarding the anatomic specificity of the evidence with respect to count 5 also fails. For this argument, White Bull points to our decisions in United States v. Plenty Arrows, 946 F.2d 62 (8th Cir.1991) and United States v. Reddest, 512 F.3d 1067 (8th Cir.2008). Both Reddest and Plenty Arrows can be distinguished, however, because in those cases the Government was required to show actual penetration to support a conviction for aggravated sexual abuse. Evidence of penetration was necessary in Plenty Arrows because in 1991, the term “sexual act” was defined more narrowly and required “penetration or contact with the mouth.” United States v. Wright, 540 F.3d 833, 840 (8th Cir.2008); see also 18 U.S.C. § 2245(2) (1991). In Reddest, evidence of penetration was necessary because the indictment specifically alleged that the defendant had committed aggravated sexual abuse through “penetration of the genital opening by the finger.” 512 F.3d at 1071. After concluding that the “evidence [was] insufficient to prove penetration of the genital opening,” we held that the conviction could not be upheld “[u]nder the terms of the statutory provision charged by the Government.” Id. at 1072; see also id. at 1073 (refusing to consider whether there was sufficient evidence to show “intentional touching, not through the clothing, of the genitalia of another person” because it contradicted the indictment's allegations and the submitted jury instructions).

Unlike Reddest or Plenty Arrows, the Government in this case was not required to present evidence of actual penetration in order to show White Bull committed a “sexual act.” As mentioned earlier, the operative definition of a “sexual act” now includes not only actual or attempted penetration but also “the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2)(D). Count 5 of the indictment presented against White Bull did not specifically allege that White Bull had actually penetrated S.C.G.1.'s vulva. Rather, the indictment claimed that White Bull:

did knowingly engage in and attempt to engage in a sexual act with a person who had not attained the age of twelve years ... and the sexual act consisted of (a) contact between the penis and the vulva, and (b) the intentional touching, not through the clothing, of the genitalia of a person who had not attained the age of sixteen years.

Looking to the evidence in this case, we conclude that there was sufficient evidence presented to allow a reasonable jury to at least reach the conclusion that White Bull touched S.C.G.1.'s genitalia, not through the clothing, with the requisite intent.

S.C.G.1. testified that White Bull...