U.S. v. Plenty Arrows, 90-5494

• Citation: 946 F.2d 62
• Decision Date: 25 September 1991
• Docket Number: No. 90-5494,90-5494
• Parties: 33 Fed. R. Evid. Serv. 1284 UNITED STATES of America, Appellee, v. Leo PLENTY ARROWS, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 62

946 F.2d 62

33 Fed. R. Evid. Serv. 1284

UNITED STATES of America, Appellee, v. Leo PLENTY ARROWS, Jr., Appellant.

No. 90-5494.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1991.

Decided Sept. 25, 1991.

Donald A. Porter, Rapid City, S.D., for appellant.

Robert A. Mandel, Rapid City, S.D., for appellee.

Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and HEANEY, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Leo Plenty Arrows, Jr., appeals from his conviction of aggravated sexual abuse in violation of 18 U.S.C. § 1153 and § 2241(c) (1988). On appeal, he argues that the evidence was insufficient to support the conviction and that the district court erred in admitting the testimony of a mental health therapist who stated that the victim exhibited behavior similar to that shown by sexually abused children. We reverse the conviction for aggravated sexual abuse, but as the evidence was sufficient to support conviction on the lesser included offense of abusive sexual contact, we reverse and remand for entry of judgment and resentencing on the lesser included offense.

Plenty Arrows, a member of the Ogalala Sioux Tribe, was charged with sexually abusing the nine year-old son of his common-law wife. The alleged acts occurred on Indian land in South Dakota during the Christmas vacation period of 1988. The victim, who resided at the Pierre Indian Learning Center in Pierre, South Dakota was visiting his mother at the home she shared with Plenty Arrows.

The victim initially revealed the abuse to a child protection worker, Ellen Kalinay, while he was staying at the Pierre school. The victim told Kalinay that Plenty Arrows, whom he called "Junior," had touched him in a way that he did not like. At trial, the victim testified that while his pants were off, Junior touched him "from my back of my behind" and that Junior had done this "with his private part." The victim then explained that the words "private part" referred to Junior's penis. The victim also responded with "yes" when asked if Junior had ever put his penis in the victim's mouth, but he did not say when this had happened. When asked if it happened during the same Christmas vacation as the other incident, he replied: "I don't know."

The defendant testified at trial and categorically denied that any abuse had occurred. He stated that he had never once been alone with the victim because he and his common-law wife were inseparable 24 hours a day.

In July 1990, a jury convicted Plenty Arrows of aggravated sexual abuse in violation of 18 U.S.C. § 1153 and § 2241(c). The court imposed a 210-month sentence followed by a five-year period of supervised release, along with a $50.00 payment to the Victim's Assistance Fund. This appeal followed.

I.

Plenty Arrows challenges the sufficiency of the evidence to establish a violation of 18 U.S.C. § 2241(c), which makes it a crime to "knowingly engage[ ] in a sexual act with another person who has not attained the age of 12 years, or attempt[ ] to do so...." The definition of "sexual act" is found in 18 U.S.C. § 2245(2)(1988), which states:

As used in this chapter ... the term "sexual act" means

(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight; [or]

(B) contact between the mouth and the penis....

Plenty Arrows argues that the victim's testimony simply did not establish: (1) that contact occurred between his penis and the victim's anus, as required by section 2245(2)(A); or (2) that contact occurred between his penis and the victim's mouth under section 2245(2)(B) "on or about the 28th day of December, 1988" as alleged in the indictment. Plenty Arrows also asserts that the testimony fell short of establishing an attempt to commit aggravated sexual abuse, which also is prohibited by section 2241(c).

In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict. We then uphold the conviction only if it is supported by substantial evidence. United States v. Snelling, 862 F.2d 150, 153 (8th Cir.1988); United States v. Lee, 743 F.2d 1240, 1250 (8th Cir.1984); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

Section 2245(2)(A) defines in specific terms two types of "sexual act[s]" under the statute, one of which requires contact between the penis and the anus. Contact occurs "upon penetration, however, [sic] slight." While Plenty Arrows argues that there is no evidence of penetration, the government contends that the jury could appropriately have taken into account the victim's young age in evaluating the testimony and could have inferred from the victim's statements that penetration had occurred.

The government relies on United States v. St. John, 851 F.2d 1096 (8th Cir.1988), in which this court upheld a conviction upon a challenge to the sufficiency of the evidence. Although the young incest victim in St. John at times denied that he had had sexual intercourse with his mother, he also stated that he had " 'humped' " with his mother and had been touched with the " 'bad touch' " by her. Id. at 1099.

In this case, the victim stated that Plenty Arrows touched him "from my back of my behind." The government tried to clarify by asking "back of your behind?", to which the victim answered "yes." The government made no further effort to elicit what the victim meant by this--whether he was referring to his buttocks, anus, or to some other part of his anatomy. While it is indeed likely, as the government argues, that a young child would not be familiar with or use the word "anus," the testimony here is too vague to support the inference that contact involving penetration occurred between the penis and anus. The statute is anatomically specific, and the testimony lacks the necessary specificity. Although the government is entitled to all reasonable inferences supporting the verdict, we cannot sustain a conviction "based on a mere suspicion or possibility of guilt." United States v. Robinson, 782 F.2d 128, 129 (8th Cir.1986).

The government's reliance on St. John is unavailing, as the evidence in that case was much more detailed. The victim "marked anatomically correct diagrams to demonstrate what had taken place," id. at 1099, and he also demonstrated the abuse to a psychologist (who later testified) by using anatomically correct dolls. Id. at 1097-98.

The evidence in the case before us lacks this degree of specificity and falls short of the requirements of the statute. We thus conclude the evidence is insufficient to sustain a finding of aggravated sexual abuse under the definition of sexual act in 18 U.S.C. § 2245(2)(A).

The government argues alternatively that Plenty Arrows' conviction on aggravated sexual abuse can be sustained under section 2245(2)(B), which defines a sexual act as "contact between the mouth and the penis." Plenty Arrows again asserts that the evidence is insufficient because there is no testimony to prove that the aggravated sexual abuse occurred "on or about" December 28, 1988, as alleged in the indictment.

The victim testified that Plenty Arrows put his penis in the victim's mouth, but was unable to state when that occurred. When the prosecutor asked: "Was that at home over that Christmas vacation, too?", the victim replied: "I don't know." The prosecutor made no further attempt to question the victim about when the oral sodomy occurred, and no other evidence was introduced on this issue.

The government argues that the jury might have found that the abuse occurred on any date between October 1986 and July 1990--the only period of time that Plenty Arrows had access to the victim--and that any date during that period would be reasonably near the December 1988 date in the indictment. ¹

If the date is not a material element of the crime charged, "a variance between the date in the indictment and the proof is not fatal if the proof shows that the acts charged were committed on a date within the statute of limitations and prior to the return date of the indictment." United States v. Joyner, 539 F.2d 1162, 1164-65 (8th Cir.) (emphasis added), cert. denied, 429 U.S. 983, 97 S.Ct. 499, 50 L.Ed.2d 593 (1976); accord United States v. Collins, 690 F.2d 670, 673 (8th Cir.1982).

The indictment was returned on September 20, 1989. The victim's testimony provided no limitation as to the period of time when the oral sodomy occurred. Thus, the act could have occurred, as the government acknowledges, at any time up until the trial in July 1990 if Plenty Arrows had access to the victim during that time. The government does concede, in its brief, that the victim was around Plenty Arrows up until the time of trial.

A verdict cannot be based on an act that could have occurred after the return of the indictment, and the jury had no basis for inferring that the act occurred before that date. We thus conclude that the evidence was insufficient to establish aggravated sexual abuse under the definition of sexual act in section 2245(2)(B).

Plenty Arrows next contends that the evidence was not only insufficient to establish aggravated sexual abuse, but was also insufficient to establish attempted aggravated sexual abuse, which is similarly prohibited under section 2241(c). Plenty Arrows argues that the act of placing a penis against the back or buttocks is not a substantial step toward the consummation of the crime of anal sodomy. The government argues that the testimony established attempted anal sodomy and that Plenty Arrows offered no proof of innocent purpose or abandonment of his attempt.

The requisite elements of attempt are: "(1) an intent to engage in criminal conduct, and (2) conduct constituting a 'substantial step' toward the commission of the substantive...