Submitted: November 15, 2018
from United States District Court for the District of North
Dakota - Bismarck
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
found Lonnie Dale Spotted Bear guilty of four counts of
sexual abuse involving three young female relatives. On
appeal, he challenges the district court'sdecision to allow
the government to play video recordings of their forensic
interviews for the jury. We affirm.
S.H., and M.S. accused Spotted Bear of molesting them at his
home. As part of the investigation into their accusations, a
specially trained social worker conducted a videotaped
interview with each victim. After the investigation
concluded, the government charged Spotted Bear with two
counts of aggravated sexual abuse of a child under 12, one
count of attempted aggravated sexual abuse of a child under
12, and one count of abusive sexual contact with a child
under 12. See 18 U.S.C. §§ 2241(c),
Bear's defense was that the three girls fabricated the
allegations due to an unrelated family disagreement and then
embellished them in response to pressure and coaxing by
investigators. During Spotted Bear's trial, all three
girls testified and described the abuse. To respond to the
fabrication defense, the government played a portion of each
girl's forensic interview for the jury. Their responses
during the interviews were generally consistent with their
answers at trial.
Bear never objected at trial to the portions of the
recordings that the government played for the jury. Only now,
on appeal, does he claim that they were inadmissible because
they contained hearsay. See Fed. R. Evid. 802. In
the absence of an objection, we review only for plain error,
which requires Spotted Bear to show that the district court
made a "clear or obvious" error that affected his
substantial rights and that the error "seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings." United States v. White
Bull, 646 F.3d 1082, 1091 (8th Cir. 2011) (citation
omitted); see also Fed. R. Crim. P. 52(b).
analyze N.H.E.'s interview first, because the
circumstances leading to its admission are different than for
the other recordings. From the outset, Spotted Bear's
theory was that N.H.E.'s trial testimony was an
embellished version of what she had said during her forensic
interview, which itself embellished upon her original
allegations. In his opening statement, for example, Spotted
Bear's counsel claimed that investigators encouraged
N.H.E. "to say more stuff." And later, while
cross-examining N.H.E., Spotted Bear's counsel asked
whether she had "added some more things that [she]
didn't tell [the forensic interviewer]." He followed
up by inquiring whether, during the forensic interview, she
had "added to [her] story." N.H.E. answered yes to
both questions but did not explain what she added. This line
of questioning, especially in light of Spotted Bear's
theory of witness manipulation, could have left the jury with
the mistaken impression that N.H.E. had significantly changed
criminal defendant creates a false or misleading impression
on an issue, we have held the government may "clarify,
rebut, or complete [the] issue" with what would
"otherwise [be] inadmissible evidence, including hearsay
statements." United States v. Eagle, 515 F.3d
794, 801 (8th Cir. 2008). The government played the recording
to allow the jury to judge for itself whether N.H.E. had in
fact changed her story since her forensic interview. Cf.
United States v. Smith, 591 F.3d 974, 982 (8th Cir.
2010) (holding that a defendant opened the door to the
playing of a recording of a child-sex-abuse victim's
forensic interview by asking the interviewer about alleged
inconsistencies between the victim's trial testimony and
her interview). Having opened the door to this evidence,
Spotted Bear cannot now complain about its
admission. Accordingly, the district court did not
err, much less plainly err, when it allowed the government to
play the recording of N.H.E.'s forensic interview for the
jury. See Eagle, 515 F.3d at 801; United States
v. Womochil, 778 F.2d 1311, 1315 (8th Cir. 1985).
remaining two recordings call for a different analysis
because Spotted Bear's counsel did not open the door to
their admission through his questioning of S.H. or M.S.
Still, Spotted Bear failed to object to either recording, so
he must satisfy the plain-error test to receive any relief.
For two reasons, he has not met his burden of showing that
the recordings affected his substantial rights. See
United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004) (stating that courts must "demand strenuous
exertion" from defendants before granting relief on
the recordings were largely "cumulative of other
government evidence." United States v. Worman,
622 F.3d 969, 977 (8th Cir. 2010). S.H.'s sister, for
example, testified at length about S.H.'s abuse, and
N.H.E. separately told the jury that S.H. had confided in her
about the abuse, even before either girl had told her
parents. The jury also learned about the specifics of
M.S.'s abuse from two sources other than the recording:
M.S.'s own trial testimony as well as the testimony of
her mother. Her mother's testimony, in particular, echoed
M.S.'s forensic interview, including the crucial fact
that Spotted Bear molested her at his home on Thanksgiving.
To be sure, some of this other evidence may also have been
hearsay, but the fact that Spotted Bear does not challenge it
means that we can consider it in evaluating whether he was
prejudiced. See United States v. Peneaux, 432 F.3d
882, 895 (8th Cir. 2005).
the evidence of Spotted Bear's guilt was strong overall.
See United States v. Gayekpar, 678 F.3d 629, 638
(8th Cir. 2012); see also United States v.
Ramos-Caraballo, 375 F.3d 797, 804 (8th Cir. 2004)
("Especially [when] there is strong evidence of guilt,
some improper repetition of testimony . . . in a generalized
effort to bolster the witness matters little."
(brackets, internal quotation marks and citation omitted)).
Specifically, the jury heard that Spotted Bear engaged in a
lengthy pattern of sexual abuse, that all three of his
victims were female relatives under the age of 12, and that
he molested them in a similar fashion. Cf. United States
v. Never Misses A Shot, 781 F.3d 1017, 1027 (8th Cir.
2015) (stating that "evidence that the defendant
committed similar sexual assaults or child molestations"
can be used to prove guilt). In the end, the ...