U.S. v. Heidebur
| Decision Date | 11 August 1997 |
| Docket Number | No. 96-4264,96-4264 |
| Citation | 122 F.3d 577 |
| Parties | 47 Fed. R. Evid. Serv. 702 UNITED STATES of America, Appellee, v. Joseph F. HEIDEBUR, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jeffrey J. Rosanswank, Assistant Federal Public Defender, Cape Girardeau, MO, argued, for Appellant.
Larry H. Ferrell, Assistant U.S. Attorney, Cape Girardeau, MO, argued (Curtis O. Poore, Cape Girardeau, MO, on the brief), for Appellee
Before BEAM, FRIEDMAN, 1 and LOKEN, Circuit Judges.
Joseph F. Heidebur appeals his conviction for knowingly possessing sexually explicit photographs of a minor, 18 U.S.C. § 2252(a)(4)(B). We vacate the conviction.
Defendant was charged with knowingly possessing sexually explicit photographs of his twelve year-old stepdaughter after his wife, Sherry Heidebur, found three nude photographs of the girl in the family's garage. At trial, Sherry Heidebur was the government's first witness. Over the defendant's objections, the prosecutor elicited testimony from Sherry Heidebur that, a few days before her discovery of the photos, she had returned home early from work and found the defendant and her daughter together in the girl's locked bedroom. Sherry Heidebur testified that she accused the defendant of molesting her daughter, and that he admitted having sexual contact with her. The government's second witness, FBI agent Phillip McComas, testified that the defendant first confessed to having sexual contact with his stepdaughter and then admitted taking the photos. 2 The jury returned a guilty verdict, and the district court sentenced the defendant to sixty months of imprisonment. The sole issue on appeal is whether evidence of the defendant's molestation of his stepdaughter should have been excluded as inadmissible evidence of other bad acts under Federal Rule of Evidence 404(b).
Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The Rule excludes evidence of specific bad acts used to circumstantially prove that a person has a propensity to commit acts of that sort. Propensity evidence, whether of a person's general character or examples of specific bad acts, is ordinarily excluded because of the likelihood that the jury may misuse it.
Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.
Fed.R.Evid. 404 advisory committee notes (1972).
Rule 404(b) provides, however, that evidence of prior bad acts "may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." Rule 404(b) is thus "a rule of inclusion rather than exclusion and admits evidence of other crimes or acts relevant to any issue in the trial, unless it tends to prove only criminal disposition." United States v. Simon, 767 F.2d 524, 526 (8th Cir.1985) (internal quotations omitted). Thus, evidence of prior bad acts that is "probative of the crime charged" is not excluded under Rule 404(b). United States v. DeLuna, 763 F.2d 897, 913 (8th Cir.1985).
Furthermore, "bad acts that form the factual setting of the crime in issue" or that "form an integral part of the crime charged" do not come within the Rule's ambit at all. United States v. Williams, 95 F.3d 723, 731 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 750, 136 L.Ed.2d 687 (1997). This is because such acts are not truly separate bad acts that show propensity, but are " 'intrinsic evidence' which is inextricably intertwined" with the crime charged. United States v. McGuire, 45 F.3d 1177, 1188 (8th Cir.1995) (citation omitted), cert. denied, 515 U.S. 1132, 115 S.Ct. 2558, 132 L.Ed.2d 811 (1995). For example, in Williams the defendants were charged with conspiracy and kidnaping after they abducted and then murdered a man. 95 F.3d at 726-28. Rule 404(b) did not bar evidence that the defendants killed the victim because the slaying was an integral part of the kidnaping, and excluding that evidence would have prevented the prosecution from "presenting [to the jury] a coherent picture of the facts of the crime in issue." Id. at 731.
In this case, the defendant objected at trial that Sherry Heidebur's testimony that he admitted having sexual contact with her daughter was other act evidence barred by Rule 404(b). The government contended that it was eliciting the testimony to show why Sherry Heidebur began searching for the photos. Although we will only find error in a 404(b) question if we find the district court abused its discretion, Simon, 767 F.2d at 526, we agree with the defendant that the district court erred in admitting this testimony.
We first reject the government's argument that the defendant's sexual contact with his stepdaughter was "inextricably intertwined" with the crime charged (possession of the photos) and so was not 404(b) evidence at all. The government claims that the testimony was necessary to show the jury why Sherry Heidebur started looking for the photos. Sherry Heidebur's motivation in searching, however, has nothing whatsoever to do with the factual setting of the crime charged in this case. In Williams, in contrast, the defendants' murder of their victim was part and parcel of their conduct in carrying out the crimes (kidnaping and conspiracy) with which they were charged. See 95 F.3d at 730-31. Here, there was no evidence of when the photos were taken, other than Sherry Heidebur's testimony that her daughter looked about twelve years-old in the photos, and there is no indication that the sexual contact and the picture-taking were anything but discrete, separate bad acts. Furthermore, Sherry Heidebur's motive in conducting her search for the photos, while it may provide background information about the events leading to the discovery of the photos, is not an integral part of the defendant's alleged possession of those photos. Without this testimony, the jury was in no danger of not receiving "a coherent picture of the facts" of the charged crime. Id. at 731.
In addition, when the prosecutor asked Sherry Heidebur why she began her search, she initially said nothing about her earlier confrontation with the defendant. Instead, she testified that she looked for the photos after noticing that six new Polaroid photos had been placed in an album, and, knowing that Polaroid film packages had ten exposures, became suspicious about the missing four photos. Only after repeated examination and two impermissibly leading questions did Sherry Heidebur testify that her confrontation with the defendant led to her search. The government's contention that this testimony is admissible because it was elicited for the limited purpose of providing a necessary "context" is at best without basis, and at worst pretextual. 3
The government argues that the testimony was admissible even if Rule 404(b) is implicated, because it was probative of the crime charged; that is, it was admissible for a purpose other than to show propensity. Other acts evidence is not excluded by Rule 404(b) if it is: (1) relevant to a material issue raised at trial; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient evidence to support a jury finding that the defendant committed the other act; and (4) its probative value is not substantially outweighed by its prejudicial value. United States v. Kern, 12 F.3d 122, 124-25 (8th Cir.1993). On this point, the government reiterates its contention that the testimony provided "context" and was thus probative of the...
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