896 F.3d 897
8th Cir.2018Background
- Pamela Bravebull and her adult daughter Tyann were charged under 18 U.S.C. §§ 1153, 113(a)(3), (6) for assault with a dangerous weapon (shod feet) and assault resulting in serious bodily injury; Tyann pleaded guilty, Bravebull went to trial.
- Jury convicted Bravebull on both counts; verdict did not specify whether convictions rested on her own acts, aiding and abetting Tyann, or both.
- Bravebull raised multiple claims on appeal that were largely unpreserved at trial; appellate review applied the plain-error standard where appropriate.
- Appellate challenges included: prosecutor’s voir dire questioning and remarks about shoes as weapons; purported stipulation that shoes were dangerous weapons; sufficiency of evidence that shoes were dangerous weapons; multiplicity/Double Jeopardy; aiding-and-abetting instruction and evidence; and failure to give an intoxication instruction.
- Trial evidence: both women wore shoes; witness testified to repeated full "wind-up" kicks to the victim’s head causing serious bodily injury; jury instructed that a dangerous weapon is any object used in a manner likely to endanger life or inflict serious bodily harm.
Issues
| Issue | Bravebull's Argument | Government's Argument | Held |
|---|---|---|---|
| Prosecutor’s voir dire and remarks (expert testimony/evidence) | Prosecutor elicited/relied on venireman’s taekwondo-based view that shod feet are dangerous weapons and referenced it as evidence in opening/closing. | Any deviation was not governed by controlling authority and was not plain error; remarks were not a clear legal violation. | No plain error; not "clear or obvious" misconduct requiring reversal. |
| Prosecutor implied defendant stipulated shoes were weapons | Prosecutor suggested a stipulation that shoes were dangerous weapons. | Prosecutor only noted stipulations to other elements; "we" referred to prosecutor and jury, not defense counsel. | No; record does not show a stipulation by defense counsel. |
| Sufficiency: were the shoes dangerous weapons? | Insufficient evidence because no testimony identified the specific shoes and some shoes (e.g., sandals) cannot be weapons. | Jury could infer shoes were used in a manner to be dangerous given testimony of forceful kicks to the head; court’s instruction defined dangerous weapon by use. | No plain error; evidence supported submitting dangerous-weapon question to jury. |
| Multiplicity / Double Jeopardy | Two counts (dangerous weapon assault and assault causing serious bodily injury) are the same offense. | Multiplicity arguments must be raised pretrial under Fed. R. Crim. P. 12; Bravebull did not timely raise it or show good cause. | Not addressed on merits; untimely and forfeited. |
| Aiding-and-abetting instruction and sufficiency | Instruction omitted explicit requirement of actual aiding/abetting; insufficient evidence to show she aided and abetted Tyann. | Even if aiding-and-abetting instruction or evidence were flawed, independent evidence showed Bravebull committed the crimes herself. | No plain error because independent grounds supported the convictions; verdict stands. |
| Failure to give intoxication instruction | Court refused requested intoxication instruction pretrial. | Defense abandoned or withdrew the instruction at conference; record does not show plain error or preserve objection. | No plain error; record unclear and defendant not entitled to relief. |
Key Cases Cited
- Puckett v. United States, 556 U.S. 129 (2009) (plain‑error standard requires error to be clear or obvious)
- United States v. Paul, 217 F.3d 989 (8th Cir. 2000) (preservation and review principles)
- United States v. Samuels, 874 F.3d 1032 (8th Cir. 2017) (plain‑error review for sufficiency challenges not raised below)
- United States v. Dreamer, 88 F.3d 655 (8th Cir. 1996) (general verdict rule where multiple grounds submitted to jury)
- United States v. Fry, 792 F.3d 884 (8th Cir. 2015) (timeliness of multiplicity challenges under Rule 12)
- United States v. Stanley, 891 F.3d 735 (8th Cir. 2018) (plain‑error review for omitted jury instructions)
- United States v. Adejumo, 772 F.3d 513 (8th Cir. 2014) (defendant bears burden to show plain error on appeal)