Submitted: October 24, 2018
from United States District Court for the District of
ERICKSON, BEAM, and GRASZ, Circuit Judges.
James Lasley appeals from his assault convictions, arguing
that the district court erred by admitting certain evidence
and by constructively amending the indictment through a
supplemental jury instruction. We agree the jury instruction
constructively amended the indictment, and therefore vacate
Lasley's conviction and remand for a new trial.
and his girlfriend Marlena Griffin ("Marlena")
lived in the garage of his mother's house on Skunk Hollow
Road in Macy, Nebraska. Lasley and Marlena had dated for four
to five years and lived together for a couple of years. On
the night of June 3, 2017, Marlena suffered an eye injury and
a broken arm that she alleged Lasley inflicted on her. Lasley
conceded that he inflicted the eye injury but disputed that
he broke her arm.
2017, a grand jury indicted Lasley on two counts: (1) assault
resulting in serious bodily injury, in violation of 18 U.S.C.
§§ 113(a)(6) and 1153, and (2) assault of an
intimate partner and dating partner resulting in substantial
bodily injury, in violation of 18 U.S.C. §§
113(a)(7) and 1153.
September 11, 2017, Lasley filed a motion in limine, which in
relevant part sought to entirely exclude testimony from
Marlena's sister Renee (because she was only disclosed as
a witness on September 7, 2017) or at least to exclude her
testimony about what a minor, J.B., told her, on the basis it
was inadmissible hearsay and excludable under Fed.R.Evid.
403. The district court denied the motion without prejudice
to renewing the objection at trial.
began on September 12, 2017. Several witnesses testified
about the night in question, but the only corroboration for
Marlena's version of events was her sister Renee's
recollection of a statement by J.B. Specifically, Renee
recalled that J.B. said, "You need to go check on your
sister at my grandma's 'cause my uncle was beating
her up behind my grandma's." At a sidebar, Lasley
objected to the evidence, and the Government argued it could
demonstrate the statement was an excited utterance, or
alternatively, could offer the statement as an explanation of
"why [Renee] did what she did at the residence."
The district court stated that after hearing Marlena's
testimony, it had no reason to believe that J.B. witnessed
anything in the bedroom such that it would be an excited
utterance, but the district court would admit the statement
as a basis for Renee's later conduct with a limiting
instruction to that effect. Lasley objected to the latter
deliberations at the end of trial, the jury asked the
district court: "The jury would like to know does [sic]
the face injury enough to convict on Both counts or is the
arm one count and eye another count." The district court
answered, over Lasley's objection, "You may consider
any injuries allegedly suffered by Marlena Griffin in
connection with both counts." After further
deliberation, the jury found Lasley guilty on both counts.
timely appealed, asserting the district court erred in
overruling both of his objections discussed above. He seeks a
new trial on the bases that (1) the district court's
answer to the jury's question constructively amended the
indictment and (2) J.B.'s statement offered through
Renee's testimony was inadmissible hearsay that
substantially affected the verdict.
A.Constructive Amendment of the ...