United States v. Earth, 011121 FED8, 19-1555

Docket Nº:19-1555
Opinion Judge:MELLOY, Circuit Judge.
Party Name:United States of America Plaintiff- Appellee v. Crystal Earth Defendant-Appellant
Judge Panel:Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
Case Date:January 11, 2021
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

United States of America Plaintiff- Appellee


Crystal Earth Defendant-Appellant

No. 19-1555

United States Court of Appeals, Eighth Circuit

January 11, 2021

Submitted: May 15, 2020

Appeal from United States District Court for the District of South Dakota - Pierre

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

A jury found Defendant Crystal Earth guilty of assault with a dangerous weapon under 18 U.S.C. § 1153 and § 113(a)(3). On appeal, Earth challenges several evidentiary rulings, a jury instruction, and the sufficiency of the evidence. We affirm.

I. Background

Earth stabbed her cousin, Wade Sharpe Butte (Sharpe Butte), after an argument in her home on the Rosebud Indian Reservation, near White River, South Dakota. Earth was charged in a two-count indictment. Count One charged Earth with assault with a dangerous weapon, in violation of 18 U.S.C. § 1153 and § 113(a)(3). Count Two charged Earth with assault resulting in serious bodily injury, in violation of 18 U.S.C. § 1153 and § 113(a)(6).

At trial, the defense conceded that Earth stabbed Sharpe Butte but argued that she did so in self-defense. Testimony showed that, on February 25, 2018, Earth was at her home with Sharpe Butte, John Michael Black Elk (Black Elk), Kevin Lee (Lee), and her sister, Alyssa Standing Elk (Standing Elk). Several of the individuals present had been drinking alcohol all day. After midnight, when everyone was quite intoxicated, Sharpe Butte and Earth started to argue. They argued in the bathroom and one of the bedrooms before they ran down a hallway to the kitchen in the back of the house. At some time prior to 3:00 a.m. on February 26, Earth stabbed Sharpe Butte four times, in the torso and face, with her kitchen knife.

At trial, Sharpe Butte testified under a material witness warrant. He was largely unable to remember the events surrounding his stabbing. Earth testified that she and Sharpe Butte had been arguing and that Sharpe Butte had chased her into the kitchen. She testified that Sharpe Butte was aggressive and took off his shirt to prepare to fight. She also testified that, at some point, Sharpe Butte started hitting her arms, at which point she was afraid of him. Earth testified that her sister, Standing Elk, handed her a knife and Earth stabbed Sharpe Butte to defend herself. Standing Elk testified that she believed Sharpe Butte may have been harming her sister so she went to the kitchen and yelled at him to get off of Earth. Standing Elk also testified that when she yelled at Sharpe Butte, he turned around and was covered in blood. Standing Elk testified that she did not hand Earth a knife, contradicting Earth's testimony. Standing Elk made clear that she was not a direct eyewitness to the stabbing, although she was nearby when it must have occurred. Black Elk and Lee also testified about the arguments that preceded the stabbing. They were both in another room of the house when the stabbing occurred and provided no direct eyewitness account of the incident.

At trial, evidence was presented as to what happened after the stabbing. Earth, Standing Elk, Black Elk, and Lee walked to Black Elk's house, leaving Sharpe Butte wounded in Earth's house. From Black Elk's house, Earth called 911 and told the dispatcher, falsely, that Sharpe Butte had stabbed himself and her. She asked for 911 to check on him. Meanwhile, Sharpe Butte walked to the home of his aunt, Rebecca Sharpe Butte (Rebecca), who is Earth and Standing Elk's mother. Rebecca made a separate call to 911and reported the stabbing to the dispatcher.

Multiple officers responded to the scene. Officer Chad Roe arrived at Rebecca's and, after briefly interviewing Sharpe Butte about how he became injured, drove Sharpe Butte to meet an ambulance. In the ambulance, EMT Katherine O'Brien also asked Sharpe Butte about the source of his injuries before stabilizing him for transport. At the hospital, Sharpe Butte was immediately brought to the trauma room and assessed by Dr. Joseph Lozano. Sharpe Butte told Dr. Lozano that he had been with his cousin and had been caught by surprise and cut with a knife. Dr. Lozano diagnosed Sharpe Butte with lacerations and puncture wounds to his chin, left shoulder, left chest wall, and left center chest. Sharpe Butte had a blood alcohol content of 0.347 and rated his pain 6/10. The doctor's testimony indicated that Sharpe Butte's injuries were consistent with being stabbed with a knife. The wounds required various types of sutures and medications. The medical testimony further showed that Sharpe Butte did not suffer from defensive wounds on his arms or hands.

In addition, Officer Andrew Red Bear arrived at Earth's house, where Earth and Standing Elk had returned. Earth told Officer Red Bear that Sharpe Butte had stabbed her but explained that she did not have a wound because a girdle she had been wearing protected her. At trial, Earth admitted this was a lie. After assessing the scene, Officer Red Bear arrested Earth for violations of the tribal criminal code and brought her to the Adult Corrections Facility in Rosebud. At the jail, Earth was assessed for injuries and treated for an abrasion on one of her knees. Earth reported no other injuries and no other injuries were discovered. Earth was assigned a tribal public defender, Annemarie Michaels. At Earth's federal trial, Michaels testified that on February 28 she visited Earth in jail and saw that Earth's arms were "covered in bruises." Michaels testified that she requested jail officials take photos of Earth's injuries. A corrections officer testified that no such request was received and no photos were taken.

At the close of the government's case, Earth moved for judgment of acquittal, which the district court[1] denied. The jury convicted Earth on Count One and acquitted her on Count Two. Following the verdict, Earth again moved for judgment of acquittal, which the district court denied. The court sentenced Earth to 42 months of imprisonment and 3 years of supervised release. On appeal, Earth challenges several evidentiary rulings, a jury instruction, and the sufficiency of the evidence.

II. Discussion

A. Hearsay

Earth argues the district court erred by admitting hearsay statements at trial. We review a district court's rulings regarding the admission of hearsay evidence for an abuse of discretion. United States v. Brun, 416 F.3d 703, 706 (8th Cir. 2005).


First, Earth argues the court erred by allowing a 911 dispatcher and Officer Roe to testify about Rebecca Sharpe Butte's statements. Over Earth's objection, the district court admitted testimony about, and a recording of, Rebecca stating that "[Earth] stabbed [Sharpe Butte]" and "those girls are gone, but we're trying to see where they're running." The district court also admitted testimony about Rebecca stating to Officer Roe: "She is running, though." The district court provided a contemporaneous limiting instruction to the jury, explaining that Rebecca's statements were admitted for the limited purpose of understanding what the dispatcher and officer heard and how they reacted. During the final instructions to the jury, the court again instructed the jurors that they "may not take anything that Rebecca Sharpe Butte said during the 911 call or while with Officer Roe for the truth of the matters asserted."

The government offered Rebecca's statements to show their effect on the listeners and to introduce the origins of the investigation. Because the government did not introduce her statements to prove the truth of the matters asserted, the statements were not hearsay and were properly admitted into evidence. See Fed.R.Evid. 801(c); United States v. Wright, 739 F.3d 1160, 1170 (8th Cir. 2014) ("[A] statement offered to show its effect on the listener is not hearsay." (alteration in original) (quoting United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013))); see also United States v. Running Horse, 175 F.3d 635, 638 (8th Cir. 1999) ("Preliminary information concerning the origin of an investigation, admitted only for that purpose, is not hearsay."). To the extent Earth raises Confrontation Clause concerns, they are not applicable here. Rebecca testified at the trial and was subjected to cross-examination. The court did not abuse its discretion in admitting her statements.


Next, Earth argues the court erred by allowing EMT Katherine O'Brien and Dr. Lozano to testify about statements Sharpe Butte made during his medical treatment. EMT O'Brien testified that, after she moved Sharpe Butte to the ambulance, she asked him if he had been drinking and he said, "Yes. Lots. All day." EMT O'Brien also testified that she asked Sharpe Butte what happened and he said that he had been sleeping and, when he woke, "the bitch was stabbing me." EMT O'Brien testified that Sharpe Butte did not identify who stabbed him. Dr. Lozano testified that Sharpe Butte went directly to the trauma room upon arriving at the hospital. The doctor testified that Sharpe Butte explained the source of his injuries by stating "he was caught by surprise" and "got cut with a knife." Later, when asked by the government about Sharpe Butte's "attitude or demeanor about what happened," Dr. Lozano testified that Sharpe Butte "was surprised at the attack" and kept saying something like "[y]ou've got to be kidding me."

Over Earth's repeated objections, the district court admitted the above testimony under Federal Rule of Evidence 803(4). Rule 803(4) allows for the admission of a hearsay statement that "(A) is made for-and is reasonably pertinent to-medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause." Earth...

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