Submitted: December 14, 2018
from United States District Court for the District of South
Dakota - Aberdeen
LOKEN and ERICKSON, Circuit Judges, and MAGNUSON, [*] District Judge.
convicted Dashown Raymond Keys of four counts of aggravated
sexual abuse of a child and two counts of abusive sexual
contact of a child, in Indian country, in violation of 18
U.S.C. §§ 1152, 2241(c), 2246(2), 2244(a)(5), and
2246(3). Keys appeals the conviction, arguing the district
court abused its discretion by admitting
evidence of a prior sexual assault, improperly commenting
during one victim's testimony, and limiting the testimony
of a defense witness. He further argues the district court
abused its discretion in imposing a 540-month prison
sentence. Concluding there was no abuse of discretion, we
the period in question, February 2013 to September 2015, Keys
lived in the home of Heidi and Rossi Haynes, Keys's
uncle, on the Sisseton-Wahpeton Sioux Tribe's reservation
in Agency Village, South Dakota. During most of that period,
Keys shared a bedroom with I.C., Heidi Haynes's minor
daughter. On many occasions, I.C. and her younger sister,
R.C., would invite friends for sleepovers in that bedroom,
including J.V. and H.L.
returned to his family in Milwaukee in early January, 2016. A
few days later, I.C., then 12 years old, told her mother that
Keys had sexually abused her. Heidi took I.C. to the Sisseton
hospital emergency room. Law enforcement was notified, and a
child abuse investigation began. I.C. told investigators that
Keys had sexually abused her beginning in early 2013. J.V.
told investigators that Keys had sexually abused her on
multiple occasions when she spent the night with I.C. H.L.
told investigators that Keys sexually abused her while
sleeping over at I.C.'s house. This prosecution followed.
The superseding indictment charged Keys with three counts of
aggravated sexual abuse and one count of abusive sexual
contact with I.C., and with one count of aggravated sexual
abuse and one count of abusive sexual contact with J.V.
trial, I.C. testified that the abuse began when she was nine
years old. It occurred more times than she could count when
she and Keys shared a bedroom. The abuse included repeated
instances of vaginal touching, attempted digital penetration,
oral sex, anal intercourse, and attempted vaginal
intercourse. J.V. testified, by marking anatomical exhibits,
that Keys pulled her pants down and attempted vaginal and
anal intercourse when she stayed overnight in the bedroom
Keys and I.C. shared. After a three-day trial, a jury
convicted Keys of all six counts of aggravated sexual abuse
and abusive sexual contact.
appeal, Keys argues the district court abused its discretion
in making three evidentiary rulings, and the cumulative
prejudicial effect of these errors warrants a new trial. We
review evidentiary rulings for abuse of discretion. We
reverse only "if the district court's evidentiary
rulings constitute a clear and prejudicial abuse of
discretion." United States v. Never Misses A
Shot, 781 F.3d 1017, 1027 (8th Cir. 2015). "We will
not overturn a conviction based on the cumulative effect of
trial errors unless there is substantial prejudice to the
defendant." United States v. Jewell, 614 F.3d
911, 929 (8th Cir. 2010).
H.L.'s Trial Testimony. At trial, the government
called H.L. as a witness after I.C. testified. Over
Keys's objection, H.L. testified that, during a
sleep-over with I.C. and R.C. in the shared bedroom, Keys
woke her up during the night by "rubbing my
bottom," whispering "I love you" in her ear,
moving his hand to her front private part, and pressing his
private part against her bottom. Keys argues the district
court abused its discretion by admitting this testimony under
Rules 413 and 403 of the Federal Rules of Evidence. See
United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001)
(standard of review).
of prior bad acts is generally not admissible to prove a
defendant's character or propensity to commit crime.
Fed.R.Evid. 404(b). However, "Congress altered this rule
when it adopted Rules 413 and 414 of the Federal Rules of
Evidence. Now, in sexual assault and child molestation cases,
evidence that the defendant committed a prior or similar
offense may be considered for its bearing on any matter to
which it is relevant, including the defendant's
propensity to commit such offenses." Gabe, 237
F.3d at 959 (quotation omitted). A prior sexual assault is
relevant to a charged offense if it is "committed in a
manner similar to the charged offense." United
States v. Crow Eagle, 705 F.3d 325, 327 (8th Cir. 2013)
(quotation omitted). If relevant, evidence of a prior sexual
assault is admissible "unless its probative value is
substantially outweighed by one or more of the factors
enumerated in Rule 403, including the danger of unfair
prejudice." Gabe, 237 F.3d at 959 (quotation
omitted). "District courts are given broad discretion in
gauging the possibility of unfair prejudice under Rule
403." United States v. Medicine Horn, 447 F.3d
620, 622 (8th Cir. 2006).
evidence of Keys's sexual assault of H.L. was clearly
relevant. It was committed in a similar manner and during the
same time period as the child sex abuse Keys was charged with
committing against I.C. and J.V. All three victims were young
girls between the ages of 9 and 12; all testified that Keys
touched their anal and vaginal areas with his hands or penis
at night in the shared bedroom. See Crow Eagle, 705
F.3d at 328 ("the methods of assault were
similar"); United States v. Holy Bull, 613 F.3d
871, 873-74 (8th Cir. 2010); Gabe, 237 F.3d at
959-960 ("almost identical" child sexual abuse
committed twenty years before trial admissible).
argues that, regardless of relevance, the district court
abused its Rule 403 discretion because the probative value of
H.L.'s testimony was substantially outweighed by the
danger of unfair prejudice. However, like most relevant Rule
413 evidence, H.L.'s testimony is prejudicial "for
the same reason it is probative -- it tends to prove
[Keys's] propensity to molest young children."
Gabe, 237 F.3d at 960. We have repeatedly held that,
under Rule 413, that is not "unfair prejudice."
See, e.g., United States v. Horn, 523 F.3d
882, 888 (8th Cir. 2008).
J.V.'s Testimony. After I.C. and H.L. testified, the
government called eleven-year-old J.V. On direct exam, after
preliminary questions, government counsel addressed the two
charges relating to J.V.:
Q . . . J.V. you know why you're here
today, right ?
Q Okay. I want to ask you on those times
that you slept over at the house that I.C. and [Keys] stayed
at, did anything happen ...