United States v. McHorseUnited States v. McHorse
Michael C. Gross, San Antonio, Texas, for Defendant-Appellant.
BALDOCK, Circuit Judge.
Defendant John Carl McHorse is a forty-five year old resident of Taos Pueblo, New Mexico. A jury convicted him on four counts of aggravated sexual abuse of a child less than twelve years of age, in violation of
I.
Defendant is the uncle of the victims named in the indictment. The indictment refers to the victims as Jane Doe A, Jane Doe B, and Jane Doe C. The victims’ father is the brother of Defendant’s common law wife. The indictment alleged that between 1992 and 1994, Defendant engaged in sexual acts with the three victims, all of whom were under twelve years of age at the time.
Jane Doe A, fourteen years of age at the time of trial, testified that she was eight years old when Defendant began sexually abusing her. The abuse occurred on weekends when she and her half-sister, Jane Doe B, visited their aunt and Defendant. Defendant played games like strip poker with the girls, showed them “porno” movies, and gave them alcoholic beverages to drink. The abuse continued through Jane Doe A’s eleventh birthday. According to Jane Doe A, Defendant fondled her on numerous occasions, and eventually raped her with his wife’s assistance.
Jane Doe B was thirteen years old at the time of trial. She corroborated Jane Doe A’s testimony. Jane Doe B testified that she and her half-sister frequently visited her aunt and Defendant at their home in Taos Pueblo. She stated that Defendant began sexually abusing her when she was “seven or eight.” Like Jane Doe A, Jane Doe B testified that Defendant fondled her on numerous occasions and told her “whatever goes on in this house stays in this house.”
Jane Doe C, the youngest sister, was nine years old at the time of trial. She visited her aunt and Defendant less frequently than her sisters. She testified that she did not like going to Defendant’s house because he touched her underneath her clothing and “did stuff to me.” When asked where Defendant touched her, Jane Doe C circled the genital region of a human drawing. She stated she didn’t tell anyone because “if I told anyone, he’d kill my mom and dad.” She further stated that she did not like the taste of licorice because Defendant would give her licorice after he touched her.
In addition to the testimony of the three victims named in the indictment, the government introduced the testimony of two
As part of its case-in-chief, the government also introduced the testimony of six additional individuals. Three of those witnesses testified to facts relating to Jane Does A, B, and C. Alisha Jordan, Jane Doe B’s older cousin, testified that during the period of abuse, Jane Doe B confided in her, but made her promise not to tell anyone. Psychotherapist Jorna Rory White, assistant clinical director of the Taos Child Sexual Abuse Program, began counseling Jane Does A, B, and C in the fall of 1997. During counseling, each victim related to White the sexual abuse that occurred at Defendant’s home, to which White testified in detail. Pediatrician Renee Ornelas of the University of New Mexico physically examined Jane Does A and B in the spring of 1997. Doctor Ornelas testified that neither girl showed signs of sexual abuse. She further testified, however, that because of young girls’ propensity to heal quickly, her findings were not inconsistent with sexual abuse that occurred more than two years earlier.
Three other witnesses testified to facts relating to the uncharged,
Defendant’s sole defense was fabrication. Defendant’s twenty-three year old son, Justin McHorse, first testified on his father’s behalf. On cross-examination, Justin stated that his father would never sexually abuse a child. Ruling that Justin had become a character witness for Defendant, the district court allowed the government to ask about additional instances of Defendant’s alleged sexual misconduct. Specifically, the government asked Justin if he was aware that Defendant’s daughter, Jennifer McHorse, and Defendant’s younger half-sister, Catherine Glerup, had accused Defendant of sexually abusing them.
After two long-time acquaintances of Defendant from Taos Pueblo, Ethel Lujan and Ruby Archuleta, testified for Defendant, he testified on his own behalf. Defendant categorically denied having sexually abused anyone. He stated that a long-standing feud with his wife’s family was likely the reason for the allegations against him. When asked on cross-examination if he was good to his nieces, Defendant responded “I’m good to everyone.” Over objection, the district court then allowed the government to ask a series of leading questions relating to Defendant’s alleged sexual abuse of his younger half-sister. Defendant denied sexually abusing his half-sister.
II.
supercede[s] in sex offense cases the restrictive aspects of
Federal Rule of Evidence 404(b) . In contrast to Rule 404(b)’s general prohibition of evidence of character or propensity, the new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing “on any matter to which it is relevant.” This includes the defendant’s propensity to commit sexual assault or child molestation offenses, and assessment of the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.
140 Cong. Rec. S12990-02 at S12990 (daily ed. Sept. 30, 1994) (statement of Sen. Dole); 140 Cong-Rec. H8968-01 at H8991 (daily ed. August 21, 1994) (statement of Cong. Molinari).
A.
Defendant proffers five arguments why the district court erred in admitting evidence of his alleged sexual abuse of Jane Does D and E, pursuant to
[W]hen reviewing a trial court’s decision to admit Rule 414 evidence for constitutional error, the appellate court must engage in a case-specific inquiry only, asking whether the evidence in the case was so prejudicial in the context of the proceeding as a whole that the defendant was deprived of the fundamental fairness essential to the concept of due process.
Id. at 883 (internal brackets and quotations omitted).
Applying this standard, we conclude that the
B.
Next Defendant argues that
C.
Aside from his Due Process and Equal Protection arguments, Defendant argues that evidence of his alleged sexual abuse of Jane Does D and E was inadmissible under
Therefore, we reason from Guardia, and conclude that like
In this case, Defendant undoubtedly was accused of the offense of child molestation. The evidence relating to Defendant’s sexual abuse of Jane Does D and E was evidence that Defendant committed other offenses of child molestation. Thus, the admissibility of the evidence in question turns solely on its relevancy. The
Moreover, Defendant’s alleged conduct towards Jane Does D and E closely resembles that conduct alleged against Jane Does A, B, and C. See id. Like Jane Does A, B, and C, Jane Doe E is Defendant’s young niece. Defendant allegedly abused her in the same manner as he abused her cousins when she visited him and her aunt at their home. Similarly, Jane Doe D was Defendant’s young neighbor. Defendant allegedly abused Jane Doe D in the same, albeit less frequent, manner as the other victims when she came to his home to play with his son. Therefore, the district court properly concluded that the testimony of these witnesses was probative of Defendant’s guilt, and the evidence satisfied Rule 414(a)’s three requirements.
D.
Defendant next argues that the district court erred in admitting the
In Enjady, 134 F.3d at 1433, we set forth a series of matters for the district court to consider in performing the
Rule 403 balancing in the sexual assault context requires the court to consider “1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence. When analyzing the probative dangers, a court considers: 1) how likely is it such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such evidence will distract the jury from the central issues of the trial; and 3) how time consuming it will be to prove the prior conduct.”
(quoting M. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 Am.Crim. L.Rev. 57, 59 n.16 (1995)). In Castillo, 140 F.3d at 884, we further instructed the district courts that “[b]ecause
In this case, the district court properly required the government to proffer its
I believe that I will limit you to the testimony relating to the children—the two children, ... [Jane Does D and E], under the 403 balancing. The Court has considered the factors set out in the Enjady case. If the witnesses testify as counsel has indicated, the prior act will have been proved.... It seems to me that ... how probative the evidence is of a material fact, it is admitted to prove that the two children are probably more probative of the circumstances arising out of this case or upon which this case is based than ... is the half-sister.... Given the instruction that I intend to give, ..., I conclude that by restricting the evidence to two of the witnesses as opposed to all three, and together with ... the extent to which such evidence will distract the jury from the central issues of the case, I believe it will be less likely to distract the jury with the children from the issues of the case than to deal with the half-sister situation.
Based upon our review of the record, we do not believe the district court abused its discretion under
E.
Defendant’s fifth and final argument against the
We review claims under the Confrontation Clause de novo. United States v. Tome, 3 F.3d 342, 351 (10th Cir.1993), rev’d on other grounds, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995).
In other words, the demands of the Confrontation Clause are satisfied where a defendant has the opportunity to reveal weaknesses in the witness’ testimony. Tome, 3 F.3d at 352. In this case, Defendant had the opportunity to use Jane Doe E’s lack of memory to attack her credibility as a witness. But because Jane Doe’s testimony was minimally, if at all harmful to Defendant, he had little, if anything to attack. Cf. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (Confrontation Clause ensures right of a defendant to face those who testify against him). Defendant chose not to cross-examine Jane Doe E because cross-examination may have jogged her memory, resulting in testimony damaging to Defendant. Accordingly, we conclude that Jane Doe’s failure to recall the alleged incidents of sexual abuse against her coupled with Defendant’s strategy choice not to cross-examine her regarding her lack of memory did not violate Defendant’s rights under the Confrontation Clause.
Similarly, the testimony of Drs. Endres and Kethler did not violate the Confrontation Clause or
More importantly in this case, Jane Doe E’s out-of-court statements fell within the
III.
Turning from his
We review the admission of evidence at trial for abuse of discretion. United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997). Defendant contends the district court improperly admitted the evidence under
The evidence, if admissible at all, was admissible under
Under
Regardless of the defense’s proffered explanation for calling Justin, it is apparent he became a witness to his father’s good character, and in essence opined that his father’s character was such that he was incapable of committing any crimes of this nature. In response to this opinion testimony, the government was entitled to demonstrate that Justin was not fully informed as to his father’s character by inquiring into Justin’s knowledge of two discrete specific instances of conduct allegedly involving Defendant’s daughter and half-sister. See John W. Strong, McCormick on Evidence, § 191, at 816 (1992) (“The prosecution may cross-examine a witness who has testified to the accused’s reputation in order to probe the witness’s knowledge ... specifically as to whether the witness ‘has heard’ that the defendant has committed particular prior criminal acts that conflict with the reputation vouched for.... Likewise, if a witness gives his opinion of defendant’s character, then the prosecution can allude to pertinent bad acts by asking whether the witness knew of these matters in forming his opinion.“).
An additional basis exists to allow cross-examination of Justin regarding the allegations of Defendant’s daughter. Defense counsel’s last question to Justin on direct examination was: “Justin, has your father ever taken any inappropriate sexual actions with you or your brother, Angelo?” Justin answered, “No, never.” By phrasing this question to exclude the daughter, Defendant’s third child and Justin’s sister, defense counsel left the jury with the impression that Defendant had never been accused of molesting any of his children. The government was entitled to expound on the question to give the jury a more complete understanding of the circumstances. See United States v. Vasquez, 858 F.2d 1387, 1392 (9th Cir.1988) (testimony allowed on cross-examination that refers to matters “reasonably related to issues the defendant put in dispute by his testimony on direct“).
Defendant also put his own character at issue by unswervingly insisting he “was good to everyone.” Contrary to Defendant’s assertion on appeal, the prosecutor did not place Defendant in a situation where regardless of his answer Defendant would be offering evidence of his character. The prosecutor’s questions were confined to Defendant’s treatment of Jane Does A, B, and C; Defendant’s broad answers to these questions prompted questioning regarding his daughter and half-sister.
Finally, any error in permitting the questioning was harmless in light of the totality of the evidence. The few questions regarding Defendant’s daughter and half-sister were brief and only a very small portion of much lengthier cross-examinations, particularly in Defendant’s case. The prosecution did not refer to the daughter, who did not testify at trial, in his closing argument. Moreover, the daughter and half-sister were collateral figures in this case. The charges against Defendant were based only on the allegations of Jane Does A, B, and C. The district court emphasized in its jury instructions that a verdict of guilty could not be based on evidence of uncharged offenses but only on proof beyond a reasonable doubt that Defendant committed the charged acts against Jane Does A, B, and C. Finally, the evidence of Defendant’s guilt was substantial, if not overwhelming. See Anaya, 117 F.3d at 448 (“[E]rror in the admission of exclusion of evidence is harmless if it
IV.
In addition to his evidentiary challenges, Defendant argues for the first time on appeal that the district court’s limiting instruction regarding the
In a criminal case in which the defendant is accused of ... an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant. However, evidence of a prior offense on its own is not sufficient to prove the defendant guilty of the crimes charged in the indictment. Bear in mind as you consider this evidence at all times, the government has the burden of proving that the defendant committed each of the elements of the offense charged in the indictment. I remind you that the defendant is not on trial for any act, conduct, or offense not charged in the indictment.
Because Defendant did not object to the instruction below, we review for plain error.
The instruction is proper. It begins by tracking the language of
V.
Defendant also argues that the district court violated his Sixth Amendment right to a fair trial by failing to declare a mistrial after one of Defendant’s witnesses, Ethel Lujan, informed the court that during the trial she overheard a discussion between two jurors in the ladies’ restroom. Lujan testified in chambers that while she was in the restroom, she heard one juror state to another, “I’m a school teacher. I’m very disturbed about what I’m hearing.” The district court denied Defendant’s motion for a mistrial, stating:
I conclude that although there was a comment by a juror about her reaction to what she had heard, that this does not constitute a decision on the merits or a decision as to the guilt of innocence of the defendant, only that she was very disturbed about it. And it does not, in my analysis, create an issue regarding the question of whether or not the defendant had been prejudiced by such premature discussion, if it’s really a discussion.
The Constitution guarantees a defendant a fair trial, not a perfect one. United States v. Mitcheltree, 940 F.2d 1329, 1334 (10th Cir.1991). In this case, Defendant has shown no actual bias on the part of the juror. Nor does the evidence “compel an imputation of inherent bias to the juror as a matter of law.” That the juror was disturbed by the testimony in this case tells us nothing about her attitudes toward Defendant and his guilt or innocence. Nor does it tell us anything about her attitudes toward the witnesses’ credibility. The court’s questioning of the juror may have only made matters worse and the court properly exercised its discretion in declining to question her. See United States v. Bradshaw, 787 F.2d 1385, 1388-91 (10th Cir.1986) (district court has discretion in determining whether an evidentiary hearing is necessary on allegations of juror misconduct). The district court did not abuse its discretion in denying Defendant’s motion for a mistrial.
VI.
Finally, Defendant argues that the district court erred in denying his motion for a continuance which he presented to the court the morning of trial. In his motion, Defendant asserted that he needed additional time to review discovery materials which the government had just recently provided. We review the denial of a motion for a continuance of trial for an abuse of discretion. United States v. Simpson, 152 F.3d 1241, 1251 (10th Cir.1998). We will find an abuse of discretion “only if the district court’s decision was arbitrary or unreasonable and materially prejudiced the defendant.” Id.
Contrary to Defendant’s assertion, the district court did not deny his motion for a continuance outright. The court granted Defendant a half day continuance, which was all that was warranted. Defendant had requested and obtained three prior continuances. His fourth motion came on the morning of trial, two weeks after the jury had been selected, and as the jury, government, and district court waited to proceed. Defendant has not shown that he was prejudiced by the district court’s ruling.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.