U.S. v. Eagle

• Decision Date: 18 February 1998
• Docket Number: No. 97-2831,97-2831
• Citation: 137 F.3d 1011
• Parties: 48 Fed. R. Evid. Serv. 1117 UNITED STATES of America, Plaintiff-Appellee, v. John M. EAGLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1011

137 F.3d 1011

48 Fed. R. Evid. Serv. 1117

UNITED STATES of America, Plaintiff-Appellee, v. John M. EAGLE, Appellant.

No. 97-2831.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 9, 1997.

Filed Feb. 18, 1998.

Al J. Arendt, Pierre, SD, argued, for Appellant.

Robert Aaron Mandel, Asst. U.S. Atty., Sioux Falls, SD, argued (Karen E. Schreier and Gregg S. Peterman, on the brief), for Plaintiff-Appellee.

Before McMILLIAN, MAGILL, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

John M. Eagle appeals his conviction for aggravated sexual abuse of a child in violation of 18 U.S.C. § 2241(c) and § 1153. He argues that there was insufficient evidence to support the jury's verdict and also that he should be entitled to a new trial because of the improper admission of hearsay statements and of a prior conviction for a sexual offense involving a minor and the exclusion of certain favorable evidence. We affirm.

The charge in the indictment alleged that Eagle sexually abused K.W., an 8 year old Indian girl during the summer or fall of 1996. The evidence at trial showed that Eagle was living in Peever, South Dakota with his common law wife Sherrie Bretzke when her niece K.W. came to live in the household in 1994. Some time towards the end of October or early November in 1996, Mary Christopherson who was K.W.'s teacher observed that the girl had become withdrawn and her performance in school had begun to slip. Christopherson attempted to get K.W. to talk about what was bothering her, but she was unsuccessful until one day K.W. was missing from the school bus she regularly took home. When Christopherson learned K.W. had gone to her grandmother's home instead, she asked why and the girl responded that her uncle (Eagle) was mean to her. Christopherson then recommended that K.W. receive counseling.

K.W. met with Linda Crawford, a social worker who specializes in child abuse, physical abuse, and neglect matters. Crawford testified that during an interview K.W. said that her uncle had touched her. Dr. Patrick James Duey, a pediatrician, than examined K.W. and found that she had physical features which could be attributed to contact or trauma to the vaginal and anal regions, including a scar which he testified was caused by an external source. Dr. Duey testified that the medical evidence was consistent with K.W.'s allegations of sexual abuse.

K.W. testified at trial and was subject to cross examination by Eagle. She told about incidents where he instructed her to come into Bretzke's bedroom and lie down on the bed with him. He touched her "ch'na" ¹ with his finger several times and attempted to take off her clothes. She also testified that while they were on the bed he laid his stomach across her "ch'na." She stated that she did not like being touched there and that it made her feel weird. K.W. circled the vaginal area on an anatomically correct picture of a naked girl when asked to mark the area where Eagle had touched her. She also identified the genital area on a picture of a man when asked what part of Eagle's body she saw, and she said that part was "big" when the touchings occurred. K.W. said that Eagle told her not to tell anyone about what happened.

K.W. gave a physical description of Eagle and referred to him by name during her testimony, but she did not point him out when asked to identify him in the courtroom. She acknowledged on redirect examination that she was afraid of seeing "John" and that she was afraid to say whether she saw him in court. She also testified that she feared Eagle would do the same thing to her again. The district court ² made a finding in its denial of Eagle's Rule 29(b) and 33 motions that K.W. exhibited an obvious fear of the defendant while she was testifying.

The jury heard Gilbert Kohl, a criminal investigator for the Bureau of Indian Affairs, testify that Eagle had pleaded guilty in May of 1987 to a federal crime of "carnal knowledge," or "engaging in sex with a child under sixteen." 18 U.S.C. § 2032 (repealed 1986). The victim of that crime was K.W.'s aunt, Sherrie Bretzke, who was 14 years old in 1987 while Eagle was then 40.

The jury convicted Eagle of aggravated sexual abuse of K.W., and the court sentenced him to 182 months imprisonment. Eagle claims on appeal that the court erred in denying his motions for a judgment of acquittal based on sufficiency of the evidence and for a new trial. Fed.R.Crim.P. 29(b) and 33. He argues the court erred in refusing to allow D.E., the cousin of K.W., to testify that she knew about activities engaged in by K.W. and her sister that could have caused the physical conditions observed by Dr. Duey. This evidence was excluded by the trial court because of Eagle's failure to comply with the notice requirements of Fed.R.Evid. 412(c). Eagle also claims that the court erred by admitting hearsay statements by Linda Crawford and Katie Boley from their interviews with K.W. as well as evidence that he had been convicted in 1987 of a sex crime involving a minor.

Eagle claims that the district court erred in denying his motion for dismissal because of insufficiency of the evidence. Fed.R.Crim.P. 29. A violation of 18 U.S.C. § 2241(c) is established when an individual "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. 2246(2) defines "sexual act," in pertinent part, for the purposes of § 2241 as:

(C) the penetration, however slight, of the anal or genital opening of another by hand or finger or by any object, with an intent to abuse, humiliate harass, degrade or arouse or gratify the sexual desire of any person; or

(D) 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.

Eagle claims that the evidence at trial was insufficient to convict because K.W.'s testimony did not establish that a "sexual act" within the meaning of the statute was committed against her and she did not adequately identify him as the perpetrator of the abuse. When reviewing the denial of a motion to overturn the verdict based on sufficiency of the evidence, the court "views the evidence in the light most favorable to the government, ... and accept[s] all reasonable inferences drawn from the evidence that support the jury's verdict." United States v. Scott, 64 F.3d 377, 380 (8th Cir.1995) (citing United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992)). The verdict is upheld if supported by substantial evidence "irrespective of any countervailing testimony that may have been introduced." United States v. Lincoln, 630 F.2d 1313, 1316-17 (8th Cir.1980); see United States v. Snelling, 862 F.2d 150, 153 (8th Cir.1988).

The evidence at trial supports a finding that K.W. was the victim of a "sexual act" under the statutory definition. Dr. Duey testified that K.W. had injuries that were consistent with sexual abuse, and there was evidence that these injuries were not present before she moved in with her aunt. K.W. herself testified that Eagle told her to come into the bedroom where she found him naked. He then started to remove her clothes and touched her on her "ch'na." She said that Eagle was "big" when this happened and that it hurt. K.W. circled the female genital area to point out where she had been touched, and the male genital area to point out what part of the defendant she saw. This was sufficient to establish that she was the victim of a "sexual act" which the statute defines as intentional touching of the unclothed genitalia. 18 U.S.C. § 2246(2)(D). See United States v. St. John, 851 F.2d 1096, 1099 (8th Cir.1988) (conviction for incest by sexual intercourse under 18 U.S.C. § 1153 upheld after ten year old victim testified to "the bad touch," "hump[ing]," and "secret" acts, and marked an anatomically correct diagram; victim's courtroom confusion and unresponsiveness was attributable to the intimidating courtroom environment). Cf. United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir.1991) (victim's testimony did not have the degree of specificity to establish penetration, as the statute then required).

There was also substantial evidence to establish that Eagle was the abuser of K.W. There was testimony from one specialist in interviewing child victims of sexual abuse that K.W. had identified Eagle as the perpetrator. While K.W. did not point out Eagle at trial, she testified that "John" was the perpetrator and that he touched her vagina with his finger, and Linda Crawford testified that K.W. had told her that her uncle was the person who had touched her. K.W. also described Eagle in some detail from the stand, and in denying the post trial motion the district court noted that she exhibited an "obvious fear of the defendant during her testimony". The trial court and the jury had an opportunity to evaluate K.W.'s demeanor and credibility, and based on the strength of the evidence against Eagle, the court did not err by denying the motion for acquittal based on sufficiency of the evidence. See St. John, 851 F.2d at 1099.

Eagle argues alternatively that the district court abused its discretion in denying his motion for a new trial in the interest of justice. Fed.R.Crim.P. 33; see United States v. Hiveley, 61 F.3d 1358, 1361 (8th Cir.1995). The court should "balance the alleged errors against the record as a whole and evaluate the fairness of the trial" to determine whether a new trial is appropriate. United States v. McBride, 862 F.2d 1316, 1319 (8th Cir.1988). The district court properly reviewed the evidence and considered the fairness of the trial, and did not abuse its discretion in denying Eagle's Rule 33 motion.

Eagle contends that the district court erred by excluding the testimony of K.W.'s cousin who said she had seen K.W. and her sister digitally penetrate each other....