United States v. Stoney End of Horn

• Decision Date: 15 July 2016
• Docket Number: No. 15-2150, No. 15-2151,15-2150
• Citation: 829 F.3d 681
• Parties: United States of America, Plaintiff–Appellee, v. Stoney End of Horn, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Stoney End of Horn, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

829 F.3d 681

United States of America, Plaintiff–Appellee

v.Stoney End of Horn, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Stoney End of Horn, Defendant–Appellant.

No. 15-2150

No. 15-2151

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2016

Filed: July 15, 2016

Counsel who presented argument on behalf of the appellant was Terry Jay Sutton, of Watertown, SD.

Counsel who presented argument on behalf of the appellee was Troy R. Morley, AUSA, of Pierre, SD.

Before SMITH and COLLOTON, Circuit Judges, and GRITZNER,¹ District Judge.

COLLOTON

, Circuit Judge.

Stoney End of Horn was convicted by a jury on four counts of sexual abuse of a minor and one count of assault resulting in serious bodily injury, all occurring in Indian country. The district court² sentenced End of Horn to concurrent sentences of 293 months' imprisonment for each count of sexual abuse and another concurrent sentence of 120 months' imprisonment for the assault. End of Horn appeals his convictions and sentences. We affirm.

I.

The evidence on the assault charge, which we recount in the light most favorable to the verdict, concerned an incident that occurred early in the morning on September 27, 2008. The night before, End of Horn was out drinking with his girlfriend, Pauline Brave Crow, in Mobridge, South Dakota, and he agreed to give his cousin (Robert End of Horn) and two of Robert's friends (Quinton Fernandez and Elizabeth Mellette) a ride to Wakpala in Brave Crow's car.

During the drive, End of Horn and Brave Crow got into an argument. The discussion became heated, and Brave Crow attempted to jump out of the moving vehicle. End of Horn stopped the car and continued to argue with Brave Crow. End of Horn hit Brave Crow in the face with his open palm, and the two got out of the car. As the argument carried on, Robert and Fernandez tried unsuccessfully to intervene, and the passengers eventually decided to walk to Wakpala rather than wait longer for a ride. They left Brave Crow and End of Horn at the side of the road.

Some time later, Jackie Little Dog, a childhood friend of Brave Crow, encountered Brave Crow's vehicle on the side of the road to Wakpala. Little Dog testified that when she stopped behind the parked car, she saw End of Horn hitting Brave Crow's head and face. Little Dog left because she was afraid of End of Horn. She did not report the incident to authorities, but later told one of Brave Crow's daughters what she had seen.

Later in the morning of September 27, Officer Tracy Whitaker of the National Park Service was dispatched to the residence of End of Horn's father in Wakpala in response to an assault report. There, she saw an ambulance crew treating Brave Crow for facial injuries. Whitaker asked End of Horn how Brave Crow was hurt, and End of Horn said that he and Brave Crow had been attacked by hitchhikers. Whitaker attempted to locate the site of the alleged attack, but could not find evidence of an assault by hitchhikers.

Brave Crow suffered a serious fracture, known as a LeFort III fracture, in the bones of her face. She sustained broken bones in her upper jaw and face, facial swelling and bruising on the left side of her face, and bruising under both eyes. Brave Crow was “very, very quiet” when interviewed, and she did not identify her assailant when hospitalized. Brave Crow's injuries required multiple surgeries. Her health deteriorated, and she eventually died on June 25, 2010, as a result of complications from injuries

caused by the assault.

The evidence concerning sexual abuse centered on the testimony of S.N.H., a relative of Brave Crow and a twelve-year-old minor during the relevant period. S.N.H. lived with End of Horn and Brave Crow in McLaughlin, South Dakota. She testified about an incident that occurred when Brave Crow was in the hospital for a stroke in February 2010. According to S.N.H., she woke up to discover End of Horn rubbing her vagina. End of Horn then pulled up her shirt and bra and licked her nipples before inserting his penis into her vagina.

S.N.H. also testified that End of Horn engaged in vaginal intercourse with her once a month from April through July 2010 while they were staying at the house of End of Horn's father in Wakpala. The sexual contact eventually ended. S.N.H. later reported the sexual abuse in a questionnaire that she filled out at a youth treatment facility.

A grand jury charged End of Horn with second-degree murder and assault resulting in serious bodily injury based on the attack on Brave Crow. A separate grand jury charged him with multiple counts of sexual abuse of a minor arising from his contact with S.N.H. By agreement of the parties, the cases were consolidated for trial. A jury convicted End of Horn of assault, murder, and four counts of sexual abuse. The district court, relying on Ball v. United States , 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891)

, and Merrill v. United States , 599 F.2d 240, 242 & n. 4 (8th Cir. 1979) (per curiam), concluded that the second-degree murder charge required proof that Brave Crow's death occurred within a year and a day of the assault. Because the interval between assault and death was twenty-one months, the court set aside the verdict on the murder count. The court then sentenced End of Horn on the remaining counts, and he appeals.

II.

End of Horn challenges the sufficiency of the evidence to support the sexual abuse convictions. The governing statutes prescribe criminal punishment for any Indian in Indian country who “knowingly engages in a sexual act with another person” when the other person “has attained the age of 12 years but has not attained the age of 16 years” and “is at least four years younger than the person so engaging.” 18 U.S.C. §§ 1153

, 2243(a). The definition of “sexual act” includes “contact between the penis and the vulva or the penis and the anus.” 18 U.S.C. § 2246(2)(A).

End of Horn asserts that no reasonable jury could have convicted him because there was no physical evidence of the alleged abuse, and because S.N.H.'s willingness to be alone with him after alleged incidents of abuse conflicted with her claims. No physical evidence was necessary: “a victim's testimony alone can be sufficient to support a guilty verdict.” United States v. Seibel , 712 F.3d 1229, 1237 (8th Cir. 2013)

(internal quotation omitted); see

United States v. Kenyon , 397 F.3d 1071, 1076 (8th Cir. 2005). S.N.H. explained her continued interaction with End of Horn after the sexual abuse as an effort to protect her younger sister from possible abuse. She testified that she did not report the abuse earlier because she did not want to make her mother unhappy. These were proper areas for cross-examination and argument by the defense, but ultimately S.N.H.'s credibility was a question for the jury. Kenyon , 397 F.3d at 1076 ; United States v. Kirkie , 261 F.3d 761, 768 (8th Cir. 2001). S.N.H.'s testimony was sufficient to support the convictions.

End of Horn also challenges the conviction for assault causing serious bodily injury and the concurrent sentence of 120 months' imprisonment. He argues that the district court erroneously admitted hearsay evidence from Brave Crow's former husband, Benjamin Mellette. The court, citing the residual hearsay exception of Federal Rule of Evidence 807

, allowed Mellette to testify that Brave Crow told him after the roadside assault that “Stoney beat the shit out of her.” Over objection, Mellette testified: “She told me that she had been drinking, her and Stoney, and she said Stoney beat the shit out of her. And then she turned around and said, ‘But Ben, you know, that's my personal life.’ ”

Rule 807

provides that a hearsay statement is not excluded by the rule against hearsay, even if not covered by an exception in Rule 803 or 804, if the statement (1) has “equivalent circumstantial guarantees of trustworthiness” to statements admitted under the enumerated exceptions, (2) is offered as evidence of a material fact, (3) is more probative on the point offered than any other reasonably available evidence, and (4) will best serve the general purposes of the rules of evidence and the interests of justice. We have said that this exception to the rule against hearsay “was necessary to permit courts to admit evidence in exceptional circumstances where the evidence was necessary, highly probative, and carried a guarantee of trustworthiness equivalent to or superior to that which underlies the other recognized exceptions.” United States v. Renville , 779 F.2d 430, 439 (8th Cir. 1985)

. We review the district court's ruling for abuse of discretion. United States v. Thunder Horse , 370 F.3d 745, 747 (8th Cir. 2004).

The district court is entitled to some deference in applying Rule 807

, but the court here did not address why Mellette's statement had “circumstantial guarantees of trustworthiness” equivalent to the enumerated hearsay exceptions. The government defends the ruling by pointing to other evidence at trial that supports a finding that End of Horn assaulted Brave Crow. But corroborating evidence does not provide the circumstantial guarantees of trustworthiness contemplated by the Rule. Statements admitted under the firmly rooted hearsay exceptions enumerated in Rule 803 and 804—for example, dying declarations, excited utterances, or statements made for medical treatment—are “so trustworthy that adversarial testing would add little to their reliability.” Idaho v. Wright , 497 U.S. 805, 821, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), abrogated on other grounds by

Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). According to the theory of the hearsay rule, this trustworthiness must be gleaned from circumstances that “surround the making of the statement and that render the declarant particularly worthy of belief,” not by “bootstrapping on the trustworthiness of other evidence at trial.” Id. at 819, 823, 110 S.Ct. 3139 (citing 5 J. Wigmore, Evidence § 1420, at 251 (J....