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United States v. Strong

United States Court of Appeals, Eighth Circuit

June 27, 2016

United States of America, Plaintiff- Appellee
v.
Christopher Michael Strong, Sr., Defendant-Appellant

          Submitted: February 11, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

          BEAM, Circuit Judge.

         Christopher Strong was convicted of aggravated sexual abuse for assaulting his girlfriend, Fawnda Parkhurst, and forcing her to have sex with him over the course of a three-day period, during which he held her against her will. Prior to trial, Strong moved in limine to exclude evidence of a prior sexual assault he committed against his former wife. The district court[1] admitted the evidence under Federal Rule of Evidence 413. Also prior to trial, Strong provided adequate notice of his intent to call an accident reconstructionist, Daniel Lofgren (the expert). At trial, however, the judge excluded the expert's testimony. Strong was sentenced to 360 months in prison, which included an enhancement for abduction and an upward adjustment for physical restraint. For the reasons discussed below, we affirm.

         I. BACKGROUND

         Strong and Parkhurst began dating in November 2013. The couple lived together with Strong's father on the Red Lake Indian Reservation in northern Minnesota. Strong quickly became controlling and physically abusive. Between June 6 and June 8, 2014, Strong forced Parkhurst to remain in their home confined to the bedroom, where he then beat her, raped her, and threatened to kill her. Parkhurst testified that when she tried to leave, Strong grabbed her by her hair and threw her to the floor. She had bite marks and bruises all over her body. Because it was graduation weekend, there were numerous visitors to the Strong house, but Parkhurst was confined in the bedroom.

         On June 8, 2014, Parkhurst escaped while Strong was in the bathroom. She ran out of the house, but Strong caught up to her. He grabbed her and began dragging her back to the house. Strong then pushed her in front of a moving car on the highway, and Parkhurst was severely injured. She had a compound fracture to her leg. The driver that hit her did not stop, but a passerby, Carla Martin, stopped to render aid. Parkhurst crawled into Martin's car; Strong also joined Parkhurst in the backseat. Red Lake Police Department Criminal Investigator Paul Smith met Parkhurst at the hospital and assisted medical staff in bringing her into the emergency room. She told Smith that Strong had pushed her in front of the car and testified that she started telling another officer, Alexandra Dow, about the sexual assault. Dow did not recall Parkhurst mentioning the sexual assault but did remember Parkhurst telling her about the events leading up to the crash. Strong was then arrested, and Parkhurst was airlifted to a hospital in Fargo, North Dakota, where she was rushed into surgery for her broken leg. Because of the emergency surgery, there was no time for a Sexual Assault Nurse Exam (SANE).

         Strong was indicted and charged with aggravated sexual abuse, kidnapping, assault resulting in serious bodily injury, and strangulation. Prior to trial, Strong moved in limine to exclude evidence of a prior sexual assault on his then-wife, which the government intended to offer under Federal Rule of Evidence 413. In 2009, Strong pled guilty to assault resulting in serious bodily injury after he brutally attacked and sexually assaulted his wife, Clarissa Smith. The 2009 case is very similar to this case. Both victims were romantically involved with Strong, subjected to controlling behavior, sexually assaulted in the same fashion, and held captive for several days. Strong argued that admission of evidence of the 2009 assault was highly likely to unfairly prejudice the non-sexual-assault charges in this matter. To prevent such prejudicial spillover, the district court severed the aggravated-sexual-abuse count, which is the sole proceeding on appeal, and allowed evidence regarding the 2009 assault.

         Prior to trial, Strong provided adequate, timely notice of his intent to call the expert who planned to testify that "it is not possible to determine whether or not the alleged victim was pushed in front of a moving vehicle prior to being struck by the vehicle." At trial, the district court called a sidebar, which was not recorded. The judge then excluded the expert's testimony for two reasons: (1) because the testimony would not have been helpful to the jury, and (2) because the court considered the testimony extrinsic evidence offered to impeach Parkhurst's testimony that Strong pushed her in front of the car that struck her.

         The jury found Strong guilty of aggravated sexual abuse on December 18, 2014. The Presentence Report (PSR) recommended a total offense level of 40 based on the following: a base offense level of 30 under United States Sentencing Guideline (U.S.S.G.) § 2A3.1(a)(2) for criminal sexual abuse; a 4-level specific-offense-characteristic enhancement for permanent or life-threatening bodily injury pursuant to U.S.S.G. § 2A3.1(b)(4); a 4-level specific-offense-characteristic enhancement for abduction of the victim pursuant to U.S.S.G. § 2A3.1(b)(5); and a 2-level upward adjustment for physical restraint pursuant to U.S.S.G. § 3A1.3. The PSR noted that Strong had a criminal history category of III. The recommended Guidelines range was 360 months to life imprisonment. At sentencing on May 7, 2015, Strong objected to the 4-level enhancement for abduction and the 2-level adjustment for physical restraint, arguing that it was impermissible double counting. The district court overruled Strong's objections and sentenced him to 360 months' imprisonment.

         Strong now appeals arguing that the district court (1) wrongly refused to curtail the introduction of prior sexual-assault evidence, (2) wrongly excluded his expert witness's accident reconstruction testimony, and (3) erred when it simultaneously applied sentencing enhancements for abduction and physical restraint because the enhancements were allegedly based on the same conduct, which constitutes impermissible double counting.

         II. DISCUSSION

         A. Prior Sexual Assault Under Rule 413

         Strong argues that the district court wrongly refused to curtail the introduction of evidence of his prior sexual assault offered under Federal Rule of Evidence 413, which was unfairly prejudicial, and failed to properly apply Federal Rule of Evidence 403, which he claims would have resulted in the exclusion of evidence of the 2009 assault. We disagree. This court reviews evidentiary rulings for abuse of discretion. United States v. Crawford, 413 F.3d 873, 875-76 (8th Cir. 2005). We will "revers[e] only when an improper evidentiary ruling affected the defendant's substantial rights or had more than a slight influence on the verdict." United States v. Espinoza, 684 F.3d 766, 778 (8th Cir. 2012) (quoting United States v. Faulkner, 636 F.3d 1009, 1017 (8th Cir. 2011)).

         Rule 413 states, "In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant." Fed.R.Evid. 413(a). The rule allows the jury to consider the defendant's propensity to commit sexual crimes. Congress created this rule to encourage the prosecution of sexual offenders. United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998). Without probative evidence of prior sexual assaults, "credibility determinations . . . 'would otherwise become unresolved swearing matches.'" Id. (quoting 140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)). Thus, "there is 'strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible.'" Crawford, 413 F.3d at 876 (quoting United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997)). Nonetheless, Federal Rule of Evidence 403 should also be considered to ensure that the "probative value [of the prior sexual assault is] not . . . substantially outweighed by the danger of unfair prejudice." United States v. Hollow Horn, 523 F.3d 882, 888 (8th Cir. 2008). "Federal Rule 403 . . . defines unfair prejudice as an undue tendency to suggest . . . a decision on an improper basis[, ] commonly, though not necessarily, an emotional one . . . ." Mound, 149 F.3d at 802 (alterations in original).

         Here, evidence of the 2009 assault admitted at trial was not unfettered. The entire Rule 413 testimony is summed up in approximately twenty-one pages of a 318-page trial transcript. The FBI agent involved in the 2009 assault case briefly described the assault, the investigation, and the victim's physical condition, using photographs from the investigation to support his testimony. The victim, Clarissa Smith, also testified, but her testimony was cursory and unadorned. Strong argues that the district court allowed this evidence to "take over the trial" and states that this case is similar to United States v. Forcelle, where this court found that the evidence of a prior crime was improperly admitted under Rule 404. 86 F.3d 838, 842-43 (8th Cir. 1996). Forcelle was convicted of one count of mail fraud and six counts of interstate transportation of monies obtained by fraud. Id. at 839. To support the claims, the government offered evidence that the defendant previously stole platinum from his employer. Id. at 840. This case is not like Forcelle. The 2009 assault offered here was offered under Rule 413, not Rule 404.[2] Moreover, Rule 413 supersedes Rule 404's prohibition against character evidence. United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001) (holding that Rule 413 evidence can be considered on any matter, including propensity). This case is more similar to Hollow Horn where we allowed a prior victim "to testify pursuant to Federal Rule of Evidence 413, that [the defendant] had raped her in 1988." 523 F.3d at 887. The court determined that the "testimony [was] prejudicial to [the defendant] for the same reason it [was] probative–it tend[ed] to prove his propensity to commit sexual assaults, " which Rule 413 allows. Id. at 888. Although the testimony was prejudicial, it was not unfairly prejudicial. Id.

         The district court also properly conducted Rule 403 balancing before allowing the prior assault evidence at trial. "The court may exclude evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. In arguing there was no Rule 403 balancing performed in this case, Strong fails to acknowledge the extensive pretrial litigation. Strong filed a motion in limine and during the status conference, argued that the evidence should be excluded. The court took the issue under advisement and ruled on Strong's motion at the pretrial conference. The court specifically recognized the possibility that the Rule 413 evidence could spill over into the non-sexual-assault offenses and thus decided to sever the aggravated-sexual-abuse count. Strong argues for the first time on appeal that the court should have fashioned a different remedy, such as limiting the scope or excluding the photos. The district court took reasonable action in severing the cases and in doing so, did not abuse its discretion. Rule 413 evidence is always prejudicial, but Rule 403 only prevents unfairly prejudicial evidence. Gabe, 237 F.3d at 960. Here, there was no unfair prejudice other than the issue of spillover, which the court's decision to sever resolved. The district court further limited the alleged danger of the prior assault evidence by reminding the jury that although it could consider the evidence for any relevant matter, it could not convict Strong merely because he may have committed similar acts in the past. Thus, the district court did not abuse its discretion when it allowed evidence of Strong's 2009 assault conviction to be presented at trial.

         B. Expert Testimony

         Strong argues that the district court erred when it prohibited his expert from testifying at trial in regards to Parkhurst being struck by the car. We disagree. The district court excluded the expert's testimony for two reasons: (1) because the testimony would not have been helpful to the jury, and (2) because the court considered the evidence extrinsic evidence offered to impeach Parkhurst's testimony that Strong pushed her in front of the car that struck her. "The exclusion of expert testimony is a matter committed to the sound judicial discretion of the trial judge, and we will reverse only for an abuse of that discretion." United States v. Kime, 99 F.3d 870, 883 (8th Cir. 1996).

         "Criminal defendants have a fundamental right to present the testimony of witnesses in their defense . . . ." United States v. Turning Bear, 357 F.3d 730, 733 (8th Cir. 2004). However, there is no absolute right for criminal defendants to call every witness. Richardson v. Bowersox, 188 F.3d 973, 980 (8th Cir. 1999). A defendant's right to present witness testimony is limited by "other legitimate interests in the criminal trial process." United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)). Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles ...

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