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United States v. Johnson

United States Court of Appeals, Eighth Circuit

June 29, 2017

United States of America Plaintiff- Appellee
Denny Johnson, Sr. Defendant-Appellant

          Submitted: March 10, 2017

         Appeal from United States District Court for the District of South Dakota - Aberdeen

          Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Following a jury trial, Denny Johnson was sentenced to thirty years in prison for physically assaulting and raping his estranged wife. Johnson now challenges four of the district court's[1] evidentiary rulings at trial, as well as the court's application of sentencing enhancements for obstruction of justice and vulnerable victim. We affirm.

         I. Background

         Johnson and D.M. were married nearly seven years and had three young children together when D.M. filed for divorce in August 2013. D.M. and the children moved out of the couple's home in Kenel, South Dakota, and into her parents' home in nearby Dupree.[2] Seeking to mend her marriage, in September D.M. moved back in with Johnson, leaving the children with her parents. The two stayed together through the fall, but in early December D.M. informed Johnson that she had decided to proceed with the divorce. D.M. continued living with Johnson, although she began sleeping in a separate bedroom.

         D.M. alleged that, between December 1, 2013 and January 10, 2014, Johnson continually entered her bedroom while she tried to sleep and raped her both vaginally and anally. If she resisted, D.M. claimed that Johnson would strangle her, squeezing his forearm around her neck until her vision blurred. D.M. would later testify that during those weeks she felt trapped, too frightened to call out for help, and too weak to regain her car keys, cell phone, and money from Johnson's control.

         D.M. attempted escape in late December 2013. As she opened the front door to the house, Johnson slammed the door shut and pulled her back inside by her jacket. He then threw D.M. to the floor, kicked her repeatedly in an area of her back that had previously been injured, struck her in the forehead with metal, used a knife to cut off all the clothes from her body, and instructed her to kill herself in front of him. When she refused, Johnson urinated on her naked body. He then forced her into the shower, turned on cold water, and began pouring powdered bathroom cleaner, dishwashing soap, body wash, shampoo, bleach, and dirty mop water on her. He held up a mirror to D.M. and said, "Look how ugly you look when you cry, " before shattering the mirror in the tub. When Johnson's cousins arrived at the house, Johnson forced D.M. to stay in the bedroom and told her he would kill her if she cried out for help. After the cousins left, Johnson raped D.M., forcibly contorting her body to reenact the positions he claimed he had experienced with other women.

         On January 10, 2014, D.M. and Johnson made a deal: she would give him her 1997 Chevrolet Blazer in exchange for him allowing her to leave. After signing over the title, D.M. immediately ran outside, got into her Chevrolet Cavalier, and drove to a gas station to call 911 and report Johnson. D.M. prepared a written statement for law enforcement summarizing much of what she would later testify to at trial. Johnson was indicted in the U.S. District Court for the District of South Dakota and charged with five counts of aggravated sexual abuse, kidnapping, assault with a dangerous weapon, assault of a spouse by strangulation, and domestic assault by a habitual offender.

         The charges in the indictment related solely to the incidents that allegedly occurred in December 2013 and January 2014. At trial, evidence was also presented that Johnson had two tribal court convictions for physically assaulting D.M. The first conviction arose from a conflict between Johnson and D.M. in April 2004 in which Johnson ripped out parts of D.M.'s hair, leaving a bald spot and visibly swollen scalp. Johnson also sat on D.M.'s stomach and pushed on her chest because he had heard that doing CPR on a living person stops the heart. When their two-year-old son tried to help his mother, Johnson hit him in the stomach, knocking the child to the floor. Johnson subsequently pled guilty in the Cheyenne River Sioux Tribal Court, Eagle Butte, to two counts of aggravated assault, domestic violence, and endangering the welfare of a child. The second conviction arose in December 2006, around two weeks before the couple's wedding. Johnson came home intoxicated, kicked in the bedroom door, and kicked over the Christmas tree. He then slapped D.M. in the face, leaving her cheek swollen. She took her children and fled to the neighbors' house to call the police. For this incident, Johnson pled guilty to simple assault and domestic violence.

         The government also offered expert testimony from Kristine Heeren-Graber, the executive director of the South Dakota Network Against Family Violence and Sexual Assault. Heeren-Graber testified about the common emotional and behavioral characteristics that domestic violence victims often display. Her testimony was based on the Duluth Model, which she described as a scientific study highlighting the power and control that propels abusive domestic relationships (the "power-and-control wheel"). She explained that the power-and-control wheel represents the various attributes of a physically and/or sexually abusive relationship. In the middle, there is power and control, surrounded by terms describing how abusers use power and control to trap their victims in violence, including intimidation, isolation, denial, blame, and economic abuse. Heeren-Graber also explained the "cycle of violence, " which divides domestic abuse into three stages. The cycle begins with tension-building between the abuser and victim, followed by an explosion of violence, and ending with a honeymoon phase that gives the victim hope until the tension begins stewing once more. Finally, Heeren-Graber discussed typical victim responses to domestic violence, including how women often remain in abusive relationships without reporting the abuse to authorities. Throughout her testimony, Heeren-Graber did not discuss any emotional or behavioral characteristics specific to D.M. and offered no opinion as to D.M.'s credibility or whether D.M. had in fact been sexually abused.

         Johnson attempted to rebut the government's expert testimony with evidence of D.M.'s prior bad acts. In a notice filed before the trial began, Johnson stated his intent to introduce testimony that (1) in October 2013 D.M. assaulted Johnson and trashed his home, (2) in November 2013 D.M. punched Johnson in the jaw resulting in Johnson going to the hospital, and (3) on various other dates witnesses have seen D.M. physically abuse Johnson. In response, the government pointed to the facts that D.M. was not on trial and was never convicted of any of the alleged prior bad acts. The government argued that, under Federal Rules of Evidence 401 and 403, introducing evidence of D.M.'s prior acts would only confuse the issues and waste the court's time. The district court granted the government's motion to exclude the evidence on the ground that admitting the evidence would create mini-trials because, if Johnson offered evidence of D.M.'s prior misconduct, the government would be allowed to offer rebuttal evidence of Johnson's same aggressive trait. See Fed.R.Evid. 404(a)(2)(B).

         The jury found Johnson guilty of two counts of aggravated sexual abuse, 18 U.S.C. §§ 1153, 2241(a); one count of assault with a dangerous weapon, 18 U.S.C. §§ 1153, 113(a)(3); one count of simple assault, 18 U.S.C. §§ 1153, 113(a)(5); and one count of domestic assault by a habitual offender, 18 U.S.C. § 117.[3] The presentence report determined that Johnson's base offense level under the Sentencing Guidelines was 30. The report recommended increasing the base level by ten because (1) the offense involved rape by the use of force, see USSG § 2A3.1(b)(1); (2) Johnson knew or should have known that D.M. was a vulnerable victim, see USSG § 3A1.1(b)(1); (3) D.M. was physically restrained in the course of the offense, see USSG § 3A1.3; and (4) Johnson willfully obstructed or impeded justice, see USSG § 3C1.1. The district court overruled Johnson's objections and imposed all four offense level enhancements.

         Based on a total offense level of 40 and a criminal history category of I, Johnson's Sentencing Guidelines range was 292 to 365 months imprisonment. The district court imposed individual sentences for each of the convictions to be served concurrently, resulting in a total effective sentence of 360 months followed by five years of supervised release.

         II. The Evidentiary Rulings

         We first consider Johnson's appeal of four of the district court's evidentiary rulings. "Evidentiary rulings are reviewed for abuse of discretion, and we afford deference to the district judge who saw and heard the evidence." United States v. Espinosa, 585 F.3d 418, 430 (8th Cir. 2009) (internal quotation marks omitted). We will reverse "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. Picardi, 739 F.3d 1118, 1124 (8th Cir. 2014) (internal quotation marks omitted). We will not reverse a harmless error. United States v. Missouri, 535 F.3d 844, 848 (8th Cir. 2008) (citing Fed.R.Civ.P. 61).

         A. Expert Testimony of Kristine Heeren-Graber

         The district court rejected Johnson's request for a Daubert hearing concerning Heeren-Graber's qualifications to testify as an expert. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Johnson argues that a Daubert hearing would have established that Heeren-Graber had insufficient knowledge to testify about the Duluth Model and the cycle of domestic violence. He further asserts that Heeren-Graber's testimony was not necessary to help the jury understand the evidence, and that the testimony merely vouched for D.M.'s credibility. Finally, Johnson argues in the alternative that the testimony was irrelevant and unduly prejudicial under Federal Rules of Evidence 401 and 403.

         Under Federal Rule of Evidence 702, expert testimony is admissible if the expert's "knowledge, skill, training, experience or education will assist a trier of fact in understanding an area involving specialized subject matter." United States v. Molina, 172 F.3d 1048, 1056 (8th Cir. 1999). The district court enjoys "broad latitude" in determining the reliability of expert testimony, Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142 (1999), and "[t]here is no requirement that the [d]istrict [c]ourt always hold a Daubert hearing prior to qualifying an expert witness, " United States v. Kenyon, 481 F.3d 1054, 1061 (8th Cir. 2007) (first alteration in original) (internal quotation marks omitted). Indeed, when the district court is satisfied that the testimony is "reasonably based on [the expert's] education, training, and experience, the court does not abuse its discretion by admitting the testimony without a preliminary hearing." Id.

         After careful review of the record, we conclude that the district court did not err in admitting the testimony of Heeren-Graber without a Daubert hearing. Heeren-Graber has nearly thirty years of experience as a licensed social worker specializing in domestic violence and sexual assault. The trial transcript shows that, contrary to Johnson's suggestion, Heeren-Graber has a wealth of knowledge about the Duluth Model and the cycle of violence. Through detailed answers on direct examination, Heeren-Graber articulated the three steps in the cycle of violence-tension-building, explosion, and honeymoon-and described how the cycle often worsens over time in most abusive ...

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