Submitted: June 15, 2018
from United States District Court for the District of North
Dakota - Bismarck
KELLY, ARNOLD, and STRAS, Circuit Judges.
ARNOLD, Circuit Judge.
Bravebull and her adult daughter, Tyann, were charged with
assault with a dangerous weapon, namely, shod feet, and
assault resulting in serious bodily injury, see 18
U.S.C. §§ 1153, 113(a)(3), (6), for their attack on
Theresa Seewalker. They were charged with committing the
offenses both individually and by aiding and abetting the
other's commission of the offenses. See 18
U.S.C. § 2. Though Tyann pleaded guilty to assault
resulting in serious bodily injury, Bravebull pleaded not
guilty and took the matter to trial. The jury found Bravebull
guilty of both offenses, but the verdict did not specify
whether the jury found her guilty because she committed the
offenses herself, because she aided and abetted Tyann, or
both. The district court sentenced Bravebull to 84 months in
prison on both counts, to run concurrently.
appeal, Bravebull maintains that a "panoply of
errors" infected the proceedings below, though the
record does not show that she raised any of her concerns to
the district court. She first argues that the prosecutor
improperly elicited what she characterizes as expert
testimony during voir dire when he questioned a venireman
about the dangers of shod feet, and then improperly referred
to that questioning during his opening statement and closing
argument as if the venireman's statements were evidence.
Bravebull also maintains that the prosecutor intimated that
Bravebull had stipulated that the shoe or shoes worn here
were dangerous weapons. Because Bravebull did not raise an
objection before the district court, we review her arguments
for plain error. See United States v. Paul, 217 F.3d
989, 1003 (8th Cir. 2000).
that any error the prosecutor committed here was not plain.
For an error to be plain, it "must be clear or obvious,
rather than subject to reasonable dispute." Puckett
v. United States, 556 U.S. 129, 135 (2009). Our review
of the trial transcript shows that the prosecutor may have
strayed close to troublesome territory by discussing with the
venireman his experience as a taekwondo instructor and his
views on shoes as dangerous weapons, and then (maybe)
referring to this discussion during his opening statement and
closing argument. But Bravebull acknowledges that this is an
issue of first impression and has identified no statute,
rule, or case prohibiting the prosecutor's actions, or
more importantly, alerting the district court that it needed
to correct any error sua sponte. Any such error, moreover,
was not so "clear or obvious" as to obviate the
need for some kind of pre-existing legal authority.
also independently reviewed the trial transcript, and we
disagree that the prosecutor represented that defense counsel
had stipulated that the shoes here were dangerous weapons.
The prosecutor stated that defense counsel had stipulated to
other elements of the crimes, such as, for instance, that
Seewalker had suffered serious bodily injury and that the
assaults were committed by Indians against Indians in Indian
country. After discussing what he believed the evidence would
show, only then did he say, "As we talked about in jury
selection, a foot -- we agreed that a foot could be a weapon
based upon how it was used." The subject of that
sentence, "we," obviously referred to the
prosecutor and the members of the jury, not the prosecutor
and defense counsel.
next point on appeal, Bravebull argues that the evidence was
insufficient to show that the shoes Bravebull and Tyann wore
were dangerous weapons. The parties appear to agree that the
evidence showed that both women wore shoes during the attack
and that no one testified at trial about the specific shoes
they wore. Bravebull argues that, though some shoes can be
dangerous weapons, others, like Nike sandals, cannot.
Bravebull did not raise this point to the district court, so
we review her argument for plain error. See United States
v. Samuels, 874 F.3d 1032, 1036 (8th Cir. 2017).
is no plain error here because the jury could have properly
inferred that Tyann, Bravebull, or both of them were wearing
shoes that qualified as dangerous weapons during the attack.
The court instructed the jury that a dangerous weapon
"is any object used in a manner likely to endanger life
or inflict serious bodily harm." The parties stipulated
that Seewalker had suffered serious bodily injury, and all
agree that Bravebull and Tyann were wearing some kind of
shoes during the attack. One witness testified that Bravebull
and Tyann had unleashed an onslaught of full
"wind-up" kicks to Seewalker's head-which is
where she sustained her serious injuries. We can hardly say
that it was plainly erroneous for the district court to allow
the dangerous-weapon question to reach the jury in this case.
also maintains that the charges of assault with a dangerous
weapon and assault resulting in serious bodily injury are
multiplicitous, that is, they charged the same offense, and
the Double Jeopardy Clause forbids conviction on both
charges. Federal Rule of Criminal Procedure 12(b)(3)(B)(ii)
requires defendants to raise multiplicity challenges before
trial, and when they do not, the challenge is untimely.
Courts do not consider untimely multiplicity challenges
unless the defendant shows good cause for the tardiness. Fed.
R. Crim. P. 12(c)(3). Bravebull has not shown good cause, so
we decline to address her argument. See United States v.
Fry, 792 F.3d 884, 888-89 (8th Cir. 2015).
takes issue with the district court's jury instruction on
aiding and abetting, arguing that it omitted any requirement
that she must have actually aided and abetted Tyann.
Relatedly, she argues that the evidence was insufficient to
show that she actually aided and abetted Tyann. Bravebull
brought neither issue to the district court's attention,
so we review these arguments for plain error. See United
States v. Stanley, 891 F.3d 735, 739 (8th Cir. 2018);
Samuels, 874 F.3d at 1036. Even if there was
insufficient evidence that Bravebull aided and abetted Tyann
and that the jury instruction on aiding and abetting was
faulty, we do not think that the district court plainly erred
because sufficient evidence shows that Bravebull committed
the offenses herself, see United States v. Dreamer,
88 F.3d 655, 658 (8th Cir. 1996), a point that Bravebull does
not challenge on appeal. "When the district court
submits to the jury two or more grounds for conviction, for
one of which there was insufficient evidence, and it is
impossible to tell on what grounds the jury decided the
defendant's guilt, we cannot reverse the jury's
general verdict of guilty." Id.
Bravebull asserts that the district court erred by not giving
her requested jury instruction on intoxication, which she
proposed before trial. Since Bravebull did not preserve an
objection on this point, we review her contention for plain
error. See Stanley, 891 F.3d at 739. Bravebull bears
the burden to show that there was a plain error below.
See United States v. Adejumo, 772 F.3d 513, 538 (8th
Cir. 2014). We cannot tell why the district court failed to
give the instruction because the charge conference was not on
the record. Once the parties went on the record, defense
counsel did not raise any objection to the court's
failing to give the instruction despite numerous
opportunities to do so. Our reading of the record and
evaluation of the attendant circumstances would support a
conclusion that Bravebull had ...