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The district court sentenced End of Horn to concurrent sentences of 293 months' imprisonment for each count of sexual abuse and another concurrent sentence of 120 months' imprisonment for the assault. During the drive, End of Horn and Brave Crow got into an argument. We therefore assume that the evidentiary ruling was erroneous, and we consider whether admission of the evidence affected End of Horn's substantial rights. But when speaking with Brave Crow's daughter Miranda, End of Horn claimed that he and Brave Crow stopped to pick up hitchhikers when a group of four men and a woman knocked him out, and that he could not find Brave Crow when he regained consciousness. End of Horn also disputes the district court's decision to depart upward from the advisory guideline range of 151 to 188 months to a sentence of 293 months.The discussion became heated, and Brave Crow attempted to jump out of the moving vehicle. H.'s testimony was sufficient to support the convictions. Because statements to friends about abuse are not “testimonial” statements that implicate the Sixth Amendment right to confront witnesses against the accused, United States v. Brave Crow declined to identify her attacker for law enforcement or for her own daughters—unlikely behavior if she had been assaulted by strangers on the roadway. The district court cited four separate provisions in support of its upward departure: USSG § 4A1.3 (inadequacy of criminal history category), § 5K2.1 (conduct resulting in death), § 5K2.8 (extreme conduct), and § 5K2.21 (dismissed and uncharged conduct). Section 4A1.3(a)(1) provides that a district court may depart upward when “reliable information indicates that the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.” Here, the district court cited five convictions in state court for which End of Horn received no criminal history points, six convictions in tribal court that were not counted, and a larceny offense while serving in the military. The district court thus did not abuse its discretion in relying on § 4A1.3 and End of Horn's criminal history as a factor in support of its upward departure.Later in the morning of September 27, Officer Tracy Whitaker of the National Park Service was dispatched to the residence of End of Horn's father in Wakpala in response to an assault report. Because the interval between assault and death was twenty-one months, the court set aside the verdict on the murder count. The definition of “sexual act” includes “contact between the penis and the vulva or the penis and the anus.” 18 U. There, she saw an ambulance crew treating Brave Crow for facial injuries. later reported the sexual abuse in a questionnaire that she filled out at a youth treatment facility. The court then sentenced End of Horn on the remaining counts, and he appeals. End of Horn challenges the sufficiency of the evidence to support the sexual abuse convictions. Whitaker asked End of Horn how Brave Crow was hurt, and End of Horn said that he and Brave Crow had been attacked by hitchhikers. A grand jury charged End of Horn with second-degree murder and assault resulting in serious bodily injury based on the attack on Brave Crow. By agreement of the parties, the cases were consolidated for trial. The governing statutes prescribe criminal punishment for any Indian in Indian country who “knowingly engages in a sexual act with another person” when the other person “has attained the age of 12 years but has not attained the age of 16 years” and “is at least four years younger than the person so engaging.” 18 U. Whitaker attempted to locate the site of the alleged attack, but could not find evidence of an assault by hitchhikers. A separate grand jury charged him with multiple counts of sexual abuse of a minor arising from his contact with S. A jury convicted End of Horn of assault, murder, and four counts of sexual abuse. As the argument carried on, Robert and Fernandez tried unsuccessfully to intervene, and the passengers eventually decided to walk to Wakpala rather than wait longer for a ride. The court, citing the residual hearsay exception of Federal Rule of Evidence 807, allowed Mellette to testify that Brave Crow told him after the roadside assault that “Stoney beat the shit out of her.” Over objection, Mellette testified: “She told me that she had been drinking, her and Stoney, and she said Stoney beat the shit out of her. The government defends the ruling by pointing to other evidence at trial that supports a finding that End of Horn assaulted Brave Crow. Our assessment is that the evidence of guilt was strong and that the hearsay testimony from Mellette likely did not have more than a very slight effect on the verdict. The degree of force used against Brave Crow supported an inference that the perpetrator intended to cause death or knowingly risked that result. Kornmann, United States District Judge for the District of South Dakota.3.

Testimony of Robert End of Horn and Quinton Fernandez, passengers in Brave Crow's car, established that they left End of Horn and Brave Crow alone on the side of a road near Wakpala on the morning of the incident.

Little Dog left because she was afraid of End of Horn. End of Horn asserts that no reasonable jury could have convicted him because there was no physical evidence of the alleged abuse, and because S. H.'s willingness to be alone with him after alleged incidents of abuse conflicted with her claims. He first contends that the district court committed procedural error in calculating an advisory sentencing range when it added four levels because S.

She did not report the incident to authorities, but later told one of Brave Crow's daughters what she had seen. 1979) (per curiam), concluded that the second-degree murder charge required proof that Brave Crow's death occurred within a year and a day of the assault. No physical evidence was necessary: “a victim's testimony alone can be sufficient to support a guilty verdict.” United States v. 2013) (internal quotation omitted); see United States v.

Before SMITH and COLLOTON, Circuit Judges, and GRITZNER,1 District Judge. The evidence on the assault charge, which we recount in the light most favorable to the verdict, concerned an incident that occurred early in the morning on September 27, 2008. To admit Mellette's testimony under the residual exception, there must be a reason why a declarant's statement to her former spouse about an assault by a new intimate partner is inherently trustworthy. 353, 376 (2008), we apply the harmless-error standard for non-constitutional errors. Yet he told the second officer that the hitchhikers fled after he hit one of them, and that he searched for Brave Crow when he saw that she was not in the car before leaving the scene.

Stoney End of Horn was convicted by a jury on four counts of sexual abuse of a minor and one count of assault resulting in serious bodily injury, all occurring in Indian country. The night before, End of Horn was out drinking with his girlfriend, Pauline Brave Crow, in Mobridge, South Dakota, and he agreed to give his cousin (Robert End of Horn) and two of Robert's friends (Quinton Fernandez and Elizabeth Mellette) a ride to Wakpala in Brave Crow's car. When neither the government nor the district court has articulated such a theory, we are not disposed to develop one on our own. When End of Horn spoke to a physician's assistant at the emergency room of the hospital, he reported that he and Brave Crow encountered an apparently disabled vehicle on the highway and pulled over to help, at which point two men grabbed Brave Crow and dragged her out into a field.

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