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United States v. Lasley

United States Court of Appeals, Eighth Circuit

February 27, 2019

United States of America Plaintiff - Appellee
v.
Orlando James Lasley Defendant-Appellant

          Submitted: October 24, 2018

          Appeal from United States District Court for the District of Nebraska

          Before ERICKSON, BEAM, and GRASZ, Circuit Judges.

          PER CURIAM.

         Orlando 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.

          I. Background

         Lasley 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.

         In July 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.

         On 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.

         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 ruling.

         During 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.

         Lasley 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.

         II. Analysis

         A.Constructive Amendment of the ...


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