U.S. v. Littlewind

• Decision Date: 26 February 2010
• Docket Number: No. 08-4000.,08-4000.
• Parties: UNITED STATES of America, Appellee, v. Sylvester LITTLEWIND, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

595 F.3d 876 UNITED STATES of America, Appellee,
v.
Sylvester LITTLEWIND, Appellant. No. 08-4000. United States Court of Appeals, Eighth Circuit. Submitted: October 21, 2009. Filed: February 26, 2010.

[595 F.3d 878]

James D. Hovey, argued, Grand Forks, ND, for appellant.

Janice Mae Morley, AUSA, Fargo, ND, for appellee.

Before RILEY, HANSEN, and GRUENDER, Circuit Judges.

HANSEN, Circuit Judge.

Sylvester Littlewind appeals a judgment entered on a jury verdict finding him guilty of assault with a dangerous weapon in violation of 18 U.S.C. §§ 113(a)(3) and 1153, assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153, and discharge of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(a) and (iii). Littlewind challenges: (1) the district court's¹ decision to admit evidence of prior bad acts, and (2) the sufficiency of the evidence adduced at trial to convict him. We affirm.

I.

The evidence at trial, taken in the light most favorable to the verdict, showed the following facts. During the two years preceding the incident precipitating this case, Sylvester Littlewind and Budene Eback shared a residence and carried on a romantic relationship. The relationship was characterized by the prodigious consumption of alcohol, frequent verbal altercations, and repeated physical violence. On one occasion, Littlewind even threatened to kill Eback.

After a characteristically intense argument on October 31, 2007, Eback gathered her personal belongings and vacated the residence. A few days later, on November 3, Littlewind awoke at about 5 a.m. and began drinking alcohol. At approximately 7:30 a.m., Eback called Littlewind and asked him to drive her and some friends to buy alcohol. Littlewind picked up Eback and some other friends, and ultimately he drove them to a nearby town to purchase alcohol. Littlewind purchased numerous 40 ounce bottles of high-alcohol-content beer and a pint of whiskey. Littlewind drove the group around on back roads and stopped at other friends' houses. Eback became so intoxicated that she could not later remember parts of the morning.

Eventually, three members of the group went to Littlewind's residence. Eback remembers waking up on a mattress in the living room. As she walked to the bathroom to wash her face, she observed Ruben Williams, one of that morning's drinking cohorts, with his head resting on the kitchen table and Littlewind seated across from him. While in the bathroom, she did not see blood or bruising on her head or face. When she returned from the bathroom, she observed a rifle leaning against a recliner in the living room. She set the rifle on the floor and sat in the recliner. Eback then went into the kitchen to get some ice water. In the kitchen, Eback and Littlewind began to argue.

Because of the argument, Eback decided to leave. She went for the front door, but Littlewind got there first and physically prevented her from leaving. Eback managed to get the door open but, in the struggle, her foot got slammed in the door. Eback pulled her foot from the door, and the argument continued with Littlewind pushing her in the chest and away from the door. Neither Eback nor Littlewind could recall what happened next.

That same morning, Littlewind's neighbor was outside repairing an automobile.

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The neighbor, Napoleon Longie, observed Littlewind pass by in his car numerous times; sometimes he was alone, and sometimes he was accompanied. At some point that morning, Napoleon heard a popping noise that he thought to be a gunshot. He was not concerned by the sound, however, because he lives near fields where people hunt and he hears gunshots regularly.

Sometime after the popping noise, Littlewind approached Napoleon and told him to call the police and an ambulance because someone had shot Eback. According to Napoleon, Littlewind was "full of blood." (Trial Tr. at 215.)

Henrietta Longie, who is Napoleon's mother and lives with Napoleon, also saw Littlewind driving numerous times that morning. The final time Henrietta saw Littlewind driving, he was alone and driving away from his house. That trip was fifteen to twenty minutes before Napoleon came into the house and told Henrietta that Eback had been shot.

Henrietta called emergency dispatch on her cell phone as she ran to Littlewind's residence. She saw Eback near the back door, on the floor and covered with blood. Henrietta went to Eback to ascertain whether she was alive. Eback reached for Henrietta and told Henrietta to get her out of there. When Henrietta tried to get Eback up and out of the house, Littlewind grabbed Eback and put her in a chair in the kitchen. Littlewind then told Eback, "Babe, tell [Henrietta] I didn't do that. Tell her I didn't do that." (Trial Tr. at 357, 359). Henrietta noticed blood on the living room floor, next to the mattress. She also saw Littlewind in a blood-spattered gray sweater. At some point before the paramedics and police arrived, however, he changed into a blue shirt.

When paramedics arrived, Eback was sitting at the kitchen table with some type of cloth pressed to her head. Eback was bleeding from the back of her head and covered in blood. She told one of the paramedics that she was cleaning a gun at the kitchen table and it accidentally discharged.

Eback was transported via ambulance to a nearby emergency room. There, Eback told a physician's assistant that she was cleaning her gun and was shot in the back of the head. The emergency room did not have the resources to care for a gunshot wound to the head, so Eback was transported via helicopter to MeritCare Hospital in Fargo, North Dakota.

At MeritCare, Dr. David Stover headed the trauma team that treated Eback. Dr. Stover has extensive experience with trauma victims, including gunshot victims. Dr. Stover observed two wounds to Eback's head; one smaller than the other. In Dr. Stover's experience, gunshot injuries often consist of an entrance wound and a relatively larger exit wound. To Dr. Stover, Eback's injury was consistent with a gunshot injury. Dr. Jeffery Lystad was also part of the trauma team that treated Eback. He believed the wounds were consistent with a gunshot injury, but could not identify—due to blood-matted hair—which wound was the entrance wound and which was the exit wound.

Despite a blood alcohol content over 0.4 percent—fives time the legal limit to drive—and the loss of approximately half her blood volume, Eback survived.

Littlewind gave numerous explanations for Eback's injury. When he first reported the injury to Napoleon, he said someone had shot Eback. Then, while waiting for the police and ambulance, Littlewind told Napoleon someone had hit Eback in the head. When law enforcement Special Agent Donovan Wind responded to the injury scene, Littlewind told Special Agent Wind that Littlewind returned home and

595 F.3d 880

found Eback had been shot. After being arrested for public intoxication and while in jail, Littlewind told a correctional officer that he thought Eback's injury was somehow related to his son's drug dealing. He told the same correctional officer that he woke up and Eback was standing by his bed with that injury. The day after Eback was injured, Littlewind was interviewed by Special Agent Wind and an FBI agent. He first told the agents that he awoke after feeling his arm was warm, to find Eback covered in blood. He also told them he returned home, saw an unidentified person running from his house, and found Eback was injured. Later that day, Littlewind made a written statement that he had no memory of the relevant time period. When the agents told Littlewind they did not believe him, he admitted he had a .22 caliber rifle in his house. He then made a second written statement. The second statement avers that Littlewind and Eback were arguing over the gun when it accidentally discharged, injuring Eback. The same statement indicates he discarded the gun in a nearby wetland.

The agents told Littlewind he could write Eback a letter and they would deliver it. Littlewind wrote:

Budene, I want to tell [you] I love you and to see if you are all right. When you get out of the hospital take care of my house. Things are a little foggy right now. I didn't mean to hurt you but you know drinking makes people do weird things. I'll understand if you don't love me anymore. I probably won't be able to see you for a while. I will always keep you in my heart. Try to get ahold of me or give that FBI guy a letter so he can give it to me. I love you always. Son Littlewind.

(Trial Tr. at 757).

Later, Littlewind guided law enforcement to the wetland he mentioned in his statement in search of the gun. Even after employing a search and rescue team, the authorities did not find a gun.

Littlewind was charged by indictment. Prior to trial, the district court held an evidentiary hearing regarding the admissibility of certain prior bad acts by Littlewind. The district court allowed evidence of three prior bad acts: (1) a February 13, 2006, tribal court assault and battery conviction; (2) a September 22, 2006, tribal court conviction for domestic abuse and public intoxication; and (3) a July 10, 2007, tribal court conviction for public intoxication. Each of the three prior bad acts involved violence by Littlewind against Eback.

The judge submitted three counts to the jury. The jury convicted Littlewind of all three counts, including assault with a dangerous weapon in violation of 18 U.S.C. §§ 113(a)(3) and 1153, assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153, and discharge of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(a) and (iii).

Littlewind appeals. He argues that the prior bad acts were inadmissible and that there was insufficient evidence to support the guilty verdict on each count.

II.

Littlewind argues that the district court erred by admitting evidence of the three...