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United States v. Hawkghost

United States Court of Appeals, Eighth Circuit

September 10, 2018

United States of America Plaintiff- Appellee
Lawrence James Hawkghost, also known as Lawrence James Dubray, Jr., also known as Lawrence James Smith Defendant-Appellant

          Submitted: May 17, 2018

          Appeal from United States District Court for the District of Nebraska - Omaha

          Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.


         Lawrence Hawkghost, an enrolled member of the Rosebud Sioux Tribe, appeals his conviction for three counts of abusive sexual contact with A.W., a minor and enrolled member of the Ponca Tribe of Nebraska. Hawkghost argues the district court[1] made erroneous evidentiary rulings. We affirm.

         I. BACKGROUND

         Hawkghost is married to A.W.'s grandmother, Marlene, and A.W. lived in close proximity to Hawkghost and Marlene on the Santee Sioux reservation between 2013 and 2014, when A.W. was 12 then turned 13 and in the sixth grade. In December 2015 interviews with an FBI investigator and a representative from the Child Advocacy Center (CAC), A.W. alleged that in January 2014, while in a bathroom at Marlene's house, Hawkghost rubbed her buttocks and genital area, over her clothing. This was the only allegation A.W. made at that particular point in time, and during these two interviews A.W. stated that this was the entire extent of what Hawkghost had done to her. Based upon this report, on September 21, 2016, Hawkghost was charged in a single indictment with sexual contact with a minor. In November 2016, as the charge was pending, A.W. was again interviewed, but by a different CAC interviewer.[2] During that interview, A.W. indicated that other incidents, previously undisclosed, had been perpetrated by Hawkghost during the time she lived near Hawkghost (all when she was in the sixth grade). She stated that Hawkghost took her hand and pressed it against his penis, skin to skin. In another incident, A.W. indicated that Hawkghost began kissing A.W. on a bed and he began rubbing his erect penis, through clothing, against A.W.'s genital area. During this same incident, he fondled her breasts, skin to skin. In December 2016, based upon this new information, the grand jury returned a superseding indictment, adding three additional counts of abusive sexual contact with a minor.

         Defense counsel wanted to pursue a defense that because Kitto and Sheridan had abused A.W. between the time she made the December 2015 and November 2016 allegations against Hawkghost, she was transferring her trauma from the other assaults and placing it on Hawkghost. Hawkghost argues this transfer theory is bolstered by the fact that during the November 2016 CAC interview, A.W. did not disclose the contemporaneous abuse by Sheridan she had recently endured. At a pretrial hearing, the government moved to exclude the evidence of the other two assualts under Federal Rule of Evidence 412. After a hearing, the district court ruled in limine under both Rule 412 and Rule 403 that Hawkghost was prohibited from cross-examining A.W. about the abuse perpetrated by Sheridan, and the CAC and FBI interviewers about Kitto and Sheridan.[3] The court reserved further ruling for trial, and then at trial the court upheld its previous ruling that Hawkghost was prohibited from raising the issue of the unrelated assaults on A.W. On May 10, 2017, the jury returned a guilty verdict on three of the four counts in the indictment, and in September 2017, Hawkghost was sentenced to fifteen months on each count, to be served consecutively. Hawkghost appeals, challenging the Rules 403 and 412 rulings.


         We review the district court's evidentiary rulings for an abuse of discretion, and its rulings on the constitutional right of the defendant to present a complete defense de novo. United States v. Pumpkin Seed, 572 F.3d 552, 558 (8th Cir. 2009). On appeal, Hawkghost argues that the evidence is admissible under the exception in Rule 412(b)(1)(C), [4] and additionally cites United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993), in support of his arguments that he should be allowed to explore evidence of A.W.'s other sexual abuse. Hawkghost further contends that the district court abused its discretion in applying Rule 403 (excluding evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues and misleading the jury).

         Rule 412, known colloquially as the "rape shield" rule, states in pertinent part:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition. (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: . . . (C) evidence whose exclusion would violate the defendant's constitutional rights.

Fed. R. Evid. 412.

         We have recently applied Rule 412 to exclude similar evidence. In United States v. Never Misses a Shot, 781 F.3d 1017 (8th Cir. 2015), the defendant in a child molestation case wanted to introduce evidence that the victim was also molested by another adult, for the purpose of supporting the defendant's theory that another actor caused the victim's "sexual knowledge, experience, and trauma, and as a result, [the victim] was projecting false allegations of sexual abuse onto [the defendant]." Id. at1028. The Never Misses a Shot defendant wanted the evidence admitted under the exception in ...

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