Submitted: December 14, 2018
Appeal
from United States District Court for the District of South
Dakota - Aberdeen
Before
LOKEN and ERICKSON, Circuit Judges, and MAGNUSON, [1] District
Judge.
ERICKSON, Circuit Judge.
In
October 2017, a jury found Chavez Spotted Horse guilty of
three counts of Child Abuse, in violation of 18 U.S.C. §
1153 and SDCL § 26-10-1, as well as three counts of
Assault with a Dangerous Weapon, in violation of 18 U.S.C.
§§ 1153 and 113(a)(3). Spotted Horse appeals,
asserting that the district court[2] erred in four ways: (1) by
defining "dangerous weapon" too broadly in its jury
instructions; (2) in refusing to instruct the jury on
reasonable use of disciplinary force by a guardian, which is
a defense to child abuse under South Dakota law; (3) by
excluding evidence of his reason for disciplining his niece
P.M.; and (4) by denying his subsequent motion for a
mistrial. We affirm.
I.
Background
Between
October 2014 and December 2016, P.M. and her older brother
C.S.H. lived with their uncle Spotted Horse in Little Eagle,
South Dakota. Little Eagle is located on the Standing Rock
Indian Reservation. The children had volunteered to live with
Spotted Horse because their grandmother and legal guardian
could no longer handle the number of grandchildren living in
her house.
On
December 1, 2016, the staff at Little Eagle Day School
reported to the Bureau of Indian Affairs that they had
noticed facial bruises and scratches consistent with child
abuse on P.M., a fifth grader at the school. Special Agent
Sheri Salazar responded. Agent Salazar interviewed the girl
and examined her injuries. The agent also observed
"several abrasions and contusions to her back in
different stages of healing," and bruises on her arms,
hands, shoulders, and legs.
Agent
Salazar then took P.M. to Indian Health Services in Fort
Yates, North Dakota, where P.M. was examined by a
pediatrician, Dr. Sara Jumping Eagle. Dr. Jumping Eagle
observed that P.M. had "numerous bruises [and]
contusions" at "various stages of healing
throughout her entire body"-specifically mentioning
injures to P.M.'s left ear, both sides of her face, one
of her hands, and her back, thighs, and upper arms.
Suspecting abuse, Dr. Jumping Eagle referred P.M. to Sanford
Hospital in Fargo, North Dakota, to see another pediatrician
and have additional tests done to rule out a possible brain
injury. Dr. Jumping Eagle also recommended that P.M. be
monitored because "as the bruising healed it could also
go into her bloodstream and affect her kidneys."
Finally, Dr. Jumping Eagle recommended a follow-up
appointment because of a finding on one of P.M.'s X-rays.
P.M.
told investigators that Spotted Horse hit her with four
different objects on three separate days during the past
week. On November 27, 2016, Spotted Horse confronted P.M.,
accusing her of improper behavior with boys at school. When
P.M. refused to answer his questions, Spotted Horse beat her
with a plastic spoon. The next day, Spotted Horse resumed his
interrogation of P.M. about her conduct with boys. This time
he beat her across the back with a wooden back scratcher
until it broke. Spotted Horse then commanded C.S.H. to find
something else that he could use to discipline P.M. C.S.H.
delayed, hoping that Spotted Horse would relent, but when
commanded again, C.S.H. reluctantly returned with a plastic
blind wand. Spotted Horse struck P.M. numerous times across
the back with the blind wand as she screamed, cried, and
begged him to stop. Unsatisfied with P.M.'s answers, the
questioning resumed two days later, on November 30. When P.M.
once again refused to provide answers that Spotted Horse
deemed appropriate, he became enraged, grabbed a plastic
hanger, and beat her across the back until the hanger broke.
On
January 19, 2017, Spotted Horse was indicted on three counts
of child abuse and three counts of assault with a dangerous
weapon for striking P.M. with the spoon, blind wand, and
hanger.[3] Prior to trial, Spotted Horse filed a
notice of his intent to introduce evidence of his motive for
administering the discipline to P.M. because he believed that
the motive "was a basis for Defendant to reasonably
believe it was necessary to discipline her in that
manner." Spotted Horse noted that the case was not a
case covered by Federal Rule of Evidence 412 but that he was
giving notice pursuant to the rule to avoid any later claims
by the United States. The specific evidence that Spotted
Horse sought to introduce was testimony "that he was
informed that P.M. was kissing an older boy and letting [the
boy] touch her inappropriately or sexually . . . to explain
why [Spotted Horse] disciplined her." He also filed a
supplemental Rule 412 notice seeking to introduce testimony
that "P.M. told [him] that she was sexually abused while
in a foster home in Missouri before she moved to South
Dakota."
The
district court took up the notices in the final pretrial
conference on October 16, 2017, and after a brief discussion
ruled the testimony mentioned in the supplemental notice
inadmissible. The government sought clarification of the
court's ruling especially related to the original Rule
412 notice. The court advised that some of the conduct
described in the original notice was admissible, noting:
"[T]he fact that he thought that she was hanging around
with too many boys or something of that nature or kissing a
boy or something, that would be [properly] subject to
discipline, perhaps."
The
case came on for trial the next day. At the conclusion of
C.S.H.'s testimony, the court held a bench conference
about testimony related to P.M.'s behavior with boys at
school. The prosecution and defense each indicated their
"impression that we were going to be allowed to get into
the fact that the defendant believed that she may have been
kissing or inappropriately contacting older boys."
During the bench conference, the court clarified its ruling,
directing, "But when you get into the question of
whether or not this child allowed some boys to sexually touch
her, to molest her, to commit a crime, that's barred by
Rule 412, in my opinion, unless, of course, its exclusion
would violate the constitutional rights of the
defendant." Defense counsel moved for a mistrial
"because this is a ruling, middle of trial, contrary to
what the ruling was yesterday. And that . . . now affects how
I can present my defense." The court denied the motion
for a mistrial and reiterated, "I'm telling you that
you're not going to ask her whether she was sexually -
whether she has been sexually touched by anybody. . . . If
she is kissing boys under the bleachers, that's
fine." Defense counsel renewed the motion during a
chambers conference at the end of the day, and the court
again denied the motion.
Spotted
Horse elected to testify on his own behalf. In that
testimony, he admitted to hitting P.M. with the objects but
explained that he believed the discipline was necessary.
Specifically Spotted Horse testified that he was merely
disciplining P.M. for misbehaving and that he resorted to
physical discipline only as a last resort after lesser forms
of discipline, such as verbal correction, grounding, and
extra chores, proved ineffective. Spotted Horse testified
that he was concerned about P.M. bothering and kissing boys
at school and that he was trying to stop her behavior from
escalating into something more ...