U.S. v. Shillingstad

• Decision Date: 29 March 2011
• Docket Number: No. 10–1283.,10–1283.
• Citation: 632 F.3d 1031
• Parties: UNITED STATES of America, Appellee,v.Allen C. SHILLINGSTAD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

632 F.3d 1031

84 Fed. R. Evid. Serv. 980

UNITED STATES of America, Appellee,

v.Allen C. SHILLINGSTAD, Appellant.

No. 10–1283.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 19, 2010.Filed: Feb. 22, 2011.Rehearing and Rehearing En Banc Denied March 29, 2011.

Zachary W. Peterson, argued, Aberdeen, SD, for appellant.Eric D. Kelderman, AUSA, argued, Pierre, SD, for appellee.Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.COLLOTON, Circuit Judge.

A jury convicted Allen C. Shillingstad of assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3), and assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6). At sentencing, the district court ¹ departed upward from the advisory guidelines and sentenced Shillingstad to 80 months' imprisonment. Shillingstad appeals his conviction, arguing that the district court abused its discretion by admitting evidence of his prior tribal convictions under Federal Rule of Evidence 404(b) and by excluding evidence of a prior inconsistent statement made by the victim. Shillingstad also challenges his sentence. We affirm.

I.

We recite the evidence in the light most favorable to the verdict. Shillingstad lived with his girlfriend, Theresa White Bull, at the home of his mother, Charmayne Eagleman, in Wakpala, South Dakota. Wakpala is located within the Standing Rock Indian Reservation. During the late-evening hours of December 14, 2008, Shillingstad and White Bull, who had been drinking alcohol, were in their bedroom in Eagleman's basement.

At some point, the two began to argue, and Shillingstad hit White Bull on the head with a plate. Shillingstad then retrieved a two-by-four board and displayed it in a threatening manner as he stood above White Bull, who was seated in a chair. He then struck White Bull on the forearm with the board as she was raising her arm in defense. While White Bull remained seated, Shillingstad struck her leg with the board. White Bull then attempted to go upstairs, but Shillingstad came from behind and pushed her down.

At this point, two National Park Service rangers, who had responded after Eagleman had called 911, entered the basement. Shillingstad and White Bull told the rangers that White Bull sustained her injuries by falling down the stairs. After one ranger removed Shillingstad from the room, White Bull recanted her previous statement and explained to the second ranger that Shillingstad had struck her with the board.

Paramedics then transported White Bull to the hospital by ambulance. White Bull received stitches to her head, and was later transported to a hospital in Bismarck, North Dakota, where she underwent knee surgery. One of her treating physicians in Bismarck, Dr. Phillip Gattey, determined that she had suffered a subdural hematoma and a tibial tuberosity fracture. At trial, Gattey testified that such a fracture would not have resulted from a fall alone, and would have required some measure of direct force.

Shillingstad was charged with assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3), and assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6). After a trial, a jury returned a verdict of guilty as to both counts, and Shillingstad disputes on appeal several of the district court's evidentiary rulings. At sentencing, the court departed upward from the advisory guideline range, pursuant to USSG § 4A1.3(a)(1), finding that Shillingstad's criminal history category underrepresented the likelihood that he would commit future crimes. The resulting sentencing range was 70 to 87 months. The court imposed a sentence of 80 months' imprisonment and three years of supervised release on each count, to be served concurrently. Shillingstad appeals the conviction and sentence.

II.

Shillingstad contends that three of the district court's evidentiary rulings constitute reversible error. We review the court's rulings for abuse of discretion. United States v. Davidson, 449 F.3d 849, 853 (8th Cir.2006).

A.

We first address Shillingstad's argument that the district court erred in admitting evidence of his prior tribal convictions for assaulting White Bull pursuant to Rule 404(b). Prior to trial, the government argued that the evidence was probative of Shillingstad's intent and the absence of an accident. The district court ruled that the evidence was admissible because it was permitted by Rule 404(b) and not excluded by Rule 403. The government inquired about the convictions during its examinations of White Bull, Eagleman, and Shillingstad.

Rule 404(b) prohibits the admission of evidence of other crimes for use as character or propensity evidence, but it permits such evidence for other purposes, such as proof of intent or absence of mistake or accident. A prior offense is admissible under the rule if it is “(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) [such that] the potential prejudice does not substantially outweigh its probative value.” United States v. Thomas, 593 F.3d 752, 757 (8th Cir.2010) (internal quotations omitted).

The district court did not abuse its discretion in admitting evidence of Shillingstad's prior tribal convictions for assaulting White Bull. The offenses were relevant to the element of Shillingstad's intent and whether White Bull's injuries resulted from an accident, matters that the defense put in issue when Shillingstad testified that White Bull sustained injuries when she accidentally hit her head on a plate and fell on a concrete floor after losing her balance. See United States v. Littlewind, 595 F.3d 876, 881 (8th Cir.2010). They involved conduct that was nearly identical to the charged offenses, as the two prior offenses involved Shillingstad's throwing dishes at White Bull and striking her on the arm with an old table leg. The offenses were sufficiently close in time, having occurred in 2005 and 2006 and thus within four years of the charged conduct. See, e.g., Thomas, 593 F.3d at 758–59; United States v. Walker, 428 F.3d 1165, 1170–71 (8th Cir.2005).

The danger of unfair prejudice did not substantially outweigh the probative value of the prior tribal offenses. Shillingstad argues that even if the fact of conviction was admissible, the court should have excluded the circumstances of the offenses in order to reduce the potential for unfair prejudice. See Walker, 428 F.3d at 1170. In this case, however, the close similarity of the prior incidents made the evidence especially probative on the question of Shillingstad's intent and the absence of accident, and it was reasonable for the court to permit that evidence. See Littlewind, 595 F.3d at 881. The court gave proper limiting instructions, see Thomas 593 F.3d at 759, and we are satisfied that the court did not abuse its discretion in admitting the evidence.

B.

Shillingstad next contends that the district court erred by allowing the government to inquire about his previous tribal convictions for abusive acts against his mother, Charmayne Eagleman, who appeared as a defense witness. Shillingstad maintains that although the district court correctly excluded the evidence at a pretrial conference, it committed reversible error when it concluded that Eagleman's testimony on cross-examination opened the door to questions about Shillingstad's prior convictions.

Shillingstad contends that because his direct examination of Eagleman focused on her observations during the night in question, the government's cross-examination should have been limited to that subject matter, see Fed.R.Evid. 611(b), and proper cross-examination could not have “opened the door” to questions about his character and prior tribal offenses. In his view, it was error for the court to rule that the door was opened to otherwise inadmissible testimony on cross-examination when Shillingstad's direct examination did not elicit evidence requiring an opportunity to explain or contradict. See United States v. Durham, 868 F.2d 1010, 1012 (8th Cir.1989). He contends that the government cannot open the door for itself through questions of its own witness, because “[t]he doctrine of opening the door ... is limited to testimony that might explain or contradict the testimony offered by the opposing party on direct examination.” Id. (internal quotations omitted).

The government responds that it was Eagleman's unsolicited responses on cross-examination, not the government's questions, that opened the door and permitted an inquiry into the prior tribal offenses. When Eagleman, in response to factual questions about what happened on the night of incident, volunteered historical assertions casting blame on White Bull—i.e., that White Bull was “always accusing somebody, or something” and “[g]iving [Shillingstad] reason to get into an argument,” and that Eagleman usually called police when the two argued because she did not “want all of that stuff that [White Bull] brings around”—the court permitted the government to inquire whether Eagleman herself had made statements about “being scared of [her] son.” After Eagleman then volunteered in response to this yes-or-no question that Shillingstad “has never assaulted me or—he has said things to me verbally, is all, but he has never attempted to assault me or anything,” the court allowed the government to rebut this testimony with evidence of Shillingstad's prior convictions for abusive acts against Eagleman.

The government contends that because Eagleman was a hostile witness who volunteered nonresponsive testimony in an effort to help Shillingstad, it was proper for the court to allow the government to impeach the testimony. Shillingstad, moreover, did not seek to keep the door firmly closed to the prior convictions by moving to strike Eagleman's volunteered testimony, although it is not clear whether he properly could have done so. Se...