United States v. Lawrence HawkghostUnited States v. Lawrence Hawkghost
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2978
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Lawrence James Hawkghost, also known as Lawrence James Dubray, Jr., also
known as Lawrence James Smith
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: May 17, 2018
Filed: September 10, 2018
____________
Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
____________
BEAM,
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 court1 made erroneous evidentiary rulings. We affirm.
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
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
(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.
We have recently applied
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. at 1028. The Never Misses a Shot defendant wanted the evidence admitted under the exception in
We conclude that the district court did not exclude the evidence arbitrarily. The district court reasoned that if it allowed evidence of P.S.‘s molestation, every child victim that has been molested by someone other than the defendant would be subject to questioning on the conduct of the other molestation(s). The court‘s concern for the ramifications to future abuse victims is warranted. Additionally, the court shielded P.S. from the embarrassment and shame of making her prior molestation, unrelated to the instant charge, public. For these reasons, we find no abuse of discretion in the district court‘s decision not to apply
Rule 412(b)(1)(C) in the manner [the defendant] sought, thereby excluding evidence of P.S.‘s other molestation.
Hawkghost argues that he wanted to use the proffered evidence at trial for a different purpose than the defendant in Never Misses a Shot–that instead of offering the evidence to show generalized knowledge, he wanted to show the unique facts of A.W.‘s experience, including why she reached out for help at the time that she did in November 2016, why she disclosed the specific facts that she did, and her alleged unwillingness to disclose the
Hawkghost advances that this case is controlled by Bear Stops. In Bear Stops, the six-year-old victim was sexually assaulted by three people (other than the defendant) around the same time as the alleged incident with the defendant. The district court limited evidence of this other assault under
Here, Hawkghost‘s right to present his defense was not unduly, nor unconstitutionally, hindered by his inability to cross-examine A.W. and the interviewers about later-occurring sexual abuse by other adults. There was no evidence that A.W. was exhibiting any unusual behavioral characteristics, and indeed, the primary reason proffered for use of the evidence during the offer of proof at trial was to show that A.W. was not a truthful person because she did not disclose all of her sexual abuse to the CAC counselors, and that she essentially perjured herself at trial by repeating that testimony–i.e., stating that she had nothing else to tell the CAC interviewers. However, Hawkghost‘s defense counsel was able to elicit testimony from A.W. wherein she admitted that she did not tell the entire truth to the first CAC counselor and to a law enforcement investigator because she did not disclose all the incidents of Hawkghost‘s abuse at that time (in December 2015), even though all of the abuse had already happened by that time. A.W. testified at least four times that she had lied to both law enforcement and the first CAC counselor. Hawkghost was also able to question the second CAC counselor about the unusual timing of the
accusations and the gap between them. Thus, we find Hawkghost‘s constitutional right to present a defense was not violated and the district court did not err in holding that this evidence was inadmissible under
Further, we find that the district court properly excluded the evidence and cross-examination under
III. CONCLUSION
We affirm the district court.
______________________________