United States v. Philip No Neck ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1705
___________
United States of America, *
*
Appellee, *
* On Appeal from the United States
v. * District Court for the District
* of South Dakota.
Philip No Neck, *
*
Appellant. *
___________
Submitted: October 17, 2006
Filed: January 10, 2007
___________
Before MELLOY, BEAM, BENTON, Circuit Judges.
___________
BEAM, Circuit Judge.
A jury convicted Philip No Neck of one count of aggravated sexual abuse in
violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(A) and three counts of the
lesser-included offense of abusive sexual contact in violation of 18 U.S.C. § 2244.
These convictions arose from the alleged abuse of his two children. On appeal, No
Neck claims (1) there was insufficient evidence supporting the specific
charges–namely that the prosecution did not prove that No Neck actually touched his
son or daughter in a sexually improper way with his hand as the charges required and
thus the district court1 erred in denying No Neck's motion for judgment of acquittal;
(2) that there was no factual basis to support a jury instruction on the lesser-included
offenses; (3) the district court erred in excluding testimony that the children's mother
had accused others of similar sexual abuse; and (4) that the ultimate sentence was
unreasonable. We affirm.
I. BACKGROUND
In 1998, Lori Whirlwind Horse (Lori) and No Neck lived in a trailer home
outside of Kyle, South Dakota. Their son and daughter lived with them as well. No
Neck and Lori were never married. While Lori worked nights, No Neck would care
for the children. At the time of trial, the children were eight and seven.
On March 27, 2002, Lori took the daughter to a health clinic because she
noticed the girl exhibiting inappropriate behavior and identified redness around her
vaginal area. A physician's assistant examined the girl and said the redness was
"abnormal." Lori applied medicated cream to the affected area.
On April 30, 2002, Lori returned to the clinic with the daughter with another
complaint regarding the persistent redness in the vaginal area, and occurrences of
burning either during or after urination. Again, a medicated cream was prescribed.
The record does not indicate that sexual abuse was a consideration at either of these
visits.
Over a year later, on June 9, 2003, Lori took the daughter back to the clinic with
similar complaints of a vaginal rash and burning urination. This time Dr. Salahuddin,
a rheumatologist, saw the girl. Dr. Salahuddin conducted a urinalysis and found an
e-coli infection. He did not physically examine the girl during this visit and when
1
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota.
-2-
Lori raised concerns about possible sexual abuse, the doctor referred her to Pine Ridge
Hospital and the appropriate state agencies. Lori did not take the daughter to the
hospital after this visit nor did she contact any state agency.
In February 2004, Lori verbalized to No Neck her fear that No Neck was
sexually assaulting their children. No Neck started counseling at a mental health
center and Lori participated, too. In March 2004, Lori took the children to the hospital
for the first time for examinations of sexual abuse. At this point law enforcement
became involved. In April 2004, during separate visits, Dr. Strong, a pediatrician in
Rapid City, examined both children based on a referral received from the FBI. During
the examination of the daughter, the girl was extremely frightened and nearly
hysterical, almost as if (according to Dr. Strong) she had been recently assaulted.
However, there were no lacerations or scars in the girl's vaginal area and her exam was
within "normal [medical] limits."
Dr. Strong examined the couple's son around that same time as well and
discovered a scar along his anal verge, about one-third to one-half inch in length. At
some point in the past there had been a tear in his anal opening. The boy had a history
of constipation and diarrhea and, while Dr. Strong testified that constipation was one
possible source of the anal fissure, it was "medically unlikely" that this was the cause
of the injury given the width of the scar. Dr. Strong believed the scar was indicative
of a penetrating injury. Dr. Strong did not medically diagnose either child as having
been sexually abused but testified that her findings were consistent with that history.
Both children testified at trial. Neither child wanted to speak of the alleged acts
in detail and used general terms in response to many of the attorneys' questions. The
boy basically testified that No Neck hurt "[m]y butt"–the part he uses to go to the
bathroom. He indicated that No Neck hurt the "inside" of him using the front part of
No Neck's genitalia where No Neck goes "potty," his "[p]ee pee," and that act made
the boy feel bad.
-3-
The girl also testified that she was hurt by No Neck. She described the
incidents by saying that No Neck hurt her "back" by touching her. She reluctantly
revealed that her "back" was the part she sits on–her butt. She testified that No Neck
touched her on the "middle front," too. Her testimony was that No Neck used what
felt like a "stick," although she did not see it, to touch her in both of these parts.
No Neck argues that neither child ever testified directly about No Neck using
his hands to touch or penetrate them. No Neck's daughter did, however, testify that
No Neck used his hands to hold her down. No Neck's son indicated on direct
examination that he did not remember what No Neck did with his hands and in
response to defense questioning, testified that when No Neck touched his son with No
Neck's "[p]ee pee," No Neck did not do anything with his hands.
No Neck points out that even though Lori and No Neck "separated" in March
2004, she continued contact with No Neck and even allowed the children to spend
time with him as late as August 2004. Lori did not want the authorities to know of
these visits at the time but Lori was investigated for allowing the kids contact with No
Neck. And, at the time Lori left No Neck, she thought that No Neck was seeing other
women and she gave him an ultimatum about quitting his job and staying home with
his family. Finally, at trial, the district judge refused to allow evidence that Lori had
also accused her brother of molesting her children in the past–allegations the brother
claims were false.
II. DISCUSSION
A. Denial of Motion for Judgment of Acquittal
We employ a strict standard of review regarding denials of motions for
acquittal, viewing the evidence in the light most favorable to the guilty verdict,
resolving all evidentiary conflicts in favor of the government, and accepting all
-4-
reasonable inferences supported by the evidence. United States v. Littrell, 439 F.3d
875, 880 (8th Cir.), cert. denied, 127 S. Ct. 331 (2006). We will not lightly overturn
the jury's verdict and will reverse only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt. United States v. Howard, 413 F.3d 861,
864 (8th Cir. 2005).
The criminal acts charged in the indictment are anatomically specific. United
States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir. 1991) (acknowledging the
specificity of the charges and carefully reviewing the evidence, ultimately determining
the government did not meet its burden). As to his daughter, No Neck was charged
with committing aggravated sexual abuse based on three different sexual acts: (1)
touching, not through the clothing, of her vagina by the hand (Count I); (2)
penetration, however slight, of her vagina with his hand (Count II); and (3)
penetration, however slight, of her anus with his hand (Count III). On each of these
three charges, the jury ultimately found No Neck guilty of the lesser-included offense
of abusive sexual contact2 in violation of 18 U.S.C. § 2244. As to his son, No Neck
was charged with committing aggravated sexual abuse based on two different sexual
acts: (1) touching, not through the clothing, of his penis by the hand (Count V);3 and
2
The "sexual contact" contemplated by 18 U.S.C. § 2244 means "the intentional
touching, either directly or through the clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C. § 2246(3).
3
We question, but do not answer, why the government included the words "by
the hand" in Counts I and V. The definition of "sexual act" contained in section
2246(2)(D) is not as specific–it merely requires the government to prove the
"intentional touching, not through the clothing, of the genitalia of another person."
Regardless, "[w]hen an indictment includes all of the essential elements of an offense,
but also treats other, superfluous matters, the superfluous allegations may be
disregarded and the indictment is proper." United States v. Wells, 127 F.3d 739, 743
(8th Cir. 1997); United States v. McIntosh, 23 F.3d 1454, 1457 (8th Cir. 1994)
("Allegations in the indictment that are not necessary to establish a violation of a
-5-
(2) penetration, however slight, of the anus with No Neck's penis (Count VI). The
jury acquitted No Neck on Count V and found him guilty of Count VI.
No Neck claims the government failed to show that he used his hands in
committing four of the five charged offenses as charged in the indictment. He further
claims that the resulting guilty verdict on the lesser-included offenses for Counts I, II,
and III can only be seen as one resting upon mere speculation and suspicions of guilt
arising from the very nature of the charges themselves. And, as to the guilty verdict
on Count VI, aggravated sexual abuse, No Neck argues the prosecution did not prove
penetration of the son's anus.
Applying our strict standard of review, and after a detailed review of the
evidence in this case, we affirm the district court's denial of No Neck's motion for
acquittal on each count. During trial, the government attempted to elicit testimony
from the daughter about No Neck's use of his hands during the alleged incidents.
Although she indicated that No Neck used his hands to hold her down, she denied that
he ever used his hands or fingers to touch her. However, she did testify that No Neck
touched her "middle front." Viewing this evidence in the light most favorable to the
guilty verdict, and recognizing that No Neck was convicted on the lesser-included
offenses in Counts I, II, and III, this evidence supports even the greater charge in
Count I for touching, not through the clothing, of the vagina. Section 2246(2)(D) does
not require the government to prove specifically that No Neck used his hands.
As to the evidence of penetration required by Counts II and III, when
questioned by the government whether "[i]n the front did it go inside?" she answered,
"[n]o" and followed up that it was "[o]utside." When they discussed potential
penetration of her anus, the girl testified that "[n]o" something did not go in "that part
where the poop comes out" but "yes" he hurt the "[m]iddle" part of her butt, "the part
statute are surplusage and may be disregarded if the remaining allegations are
sufficient to charge a crime.").
-6-
way in there." They did not, however, discuss what in fact hurt "the part way in
there." Notwithstanding, on appeal, the discussion of No Neck hurting "the part way
in there" is sufficient evidence to support the greater charge in Count III of
penetration, however slight, of the anus by a hand or a finger or by any object as
required by 18 U.S.C. § 2246(2)(C).4 And, even though there was no evidence of
penetration to support his conviction on Count II of penetration of the vagina, there
was sufficient evidence to support a charge on the lesser-included offense of sexual
contact with her vagina, the offense on which he was convicted.5 Accordingly, the
district court did not err in denying No Neck's motion for acquittal on Count II.
As to Count VI, which required evidence of penetration, however slight, of No
Neck's son's anus with No Neck's penis, No Neck's son testified that No Neck hurt
"my butt"–the part he uses to go to the bathroom. Construing the evidence as we
should, he indicated that No Neck hurt the "inside" of him using the front part of No
Neck's genitalia where No Neck goes "potty," his "[p]ee pee," and that act made the
boy feel bad. This testimony, alone, supports the jury's verdict notwithstanding the
fact that the government additionally presented supporting medical evidence of a scar
along the boy's anal verge that was consistent with a history of sexual abuse. For
these reasons, we affirm the district court's denial of No Neck's motion for acquittal
on Count VI.
We find error, though, on Count V, which required proof of intentional
touching, not through the clothing, of the son's penis. When asked which part of him
was hurt by No Neck, No Neck's son testified, only, "[m]y butt." The boy's testimony
centered on how No Neck hurt his butt during the entirety of his direct and cross
4
By statute, the penetration does not have to be effected by the hand. Again, the
government unnecessarily limited itself in the indictment.
5
The indictment is, for legal purposes, sufficient notice to No Neck that he may
be called to defend a lesser-included charge. Walker v. United States, 418 F.2d 1116,
1119 (D.C. Cir. 1969).
-7-
examinations, and even answered "[n]o" when asked "did he touch you any other
places?" and "[y]es" when asked "[n]ot in front of you, in the back of you?" There
was no testimony from the boy regarding any touching, through the clothing or
otherwise, of the boy's penis as Count V requires. Thus, the district court erred in
denying No Neck's motion for acquittal on this count. However, because the jury
ultimately acquitted No Neck on Count V, which required proof of intentional
touching, not through the clothing, of the son's penis, the district court's error is
harmless.
In the end, we look to the statutory elements contained in the statutes
themselves. Because the statute did not require proof of touching with the hands
specifically, No Neck's arguments in this regard are unavailing. Accordingly, we
affirm the district court in its denial of No Neck's motion for judgment of acquittal.
B. Instructions on Lesser-Included Offenses
No Neck challenges the instruction on the lesser-included offense of sexual
contact as to each count charged in the indictment. We review jury instructions under
an abuse of discretion standard. United States v. Beckman, 222 F.3d 512, 520 (8th
Cir. 2000). There was no abuse of discretion here. "It is undisputed that abusive
sexual contact is a lesser-included offense of aggravated sexual abuse." United States
v. Two Bulls, 940 F.2d 380, 381 (8th Cir. 1991). No Neck's arguments to the contrary
are therefore without merit and we affirm.
C. Evidentiary Challenge
On appeal, No Neck also challenges the district court's exclusion of evidence
that he sought to introduce during his case-in-chief. We review this ruling for an
abuse of discretion. United States v. Claxton, 276 F.3d 420, 422 (8th Cir. 2002).
-8-
Questioning her credibility, No Neck sought to introduce evidence that Lori had
also previously accused her brother of sexually abusing the children. The prosecution
objected to the testimony and the district court sustained the objection, saying, "I am
not going to open up this can of worms. . . . I'm sorry, it's too late; too little too late."
The credibility of an accuser is generally relevant. See United States v. Turning
Bear, 357 F.3d 730, 734-35 (8th Cir. 2004) (remanding for new trial because the
district court improperly excluded testimony calling into question the truthfulness of
one of the defendant's child accusers and victims). Even though Lori did not claim to
have direct evidence of the alleged abuses, she certainly was the accuser who initially
brought these allegations to light. Her credibility, therefore, was relevant. The district
court abused its discretion in refusing to allow No Neck the opportunity to question
Lori's prior accusations during his case-in-chief. At the very least, No Neck had the
right to ask Lori if she had, in fact, previously falsely accused her brother of a similar
offense. Fed. R. Evid. 608(a), (b).
The court's error here, however, was harmless in light of the victims' testimony.
No Neck is not entitled to relief if this error was "so unimportant and insignificant that
[it] may . . . be deemed harmless" beyond a reasonable doubt. Chapman v. California,
386 U.S. 18, 22 (1967). The government's case rested largely on the testimony of No
Neck's children. The exclusion of the evidence regarding Lori's truthfulness does not
diminish the gravamen of the children's testimony. The jury could have discounted
Lori's testimony entirely and arrived at the same result in this case. "[T]he guilty
verdict actually rendered in this trial was surely unattributable to the error." Sullivan
v. Louisiana, 508 U.S. 275, 279 (1993).
D. Reasonableness of Sentence
Our standard of review regarding reasonableness claims is for abuse of
discretion. United States v. Shepard, 462 F.3d 847, 875 (8th Cir.), cert. denied, 2006
-9-
WL 3245008 (U.S. Dec. 11, 2006). However, we review the district court's
application of the guidelines de novo. United States v. Huber, 462 F.3d 945, 949 (8th
Cir. 2006).
No Neck claims that in arriving at the advisory guideline sentence, the district
court improperly imposed the cross-reference contained at section 2A3.4(c)(1). And,
in doing so, his sentences on the lesser-included offenses for abusive sexual contact
were lengthened to what they would have been if the jury had convicted him on
aggravated sexual abuse charges. No Neck objected to the application of the cross-
reference in the PSR, claiming that the cross-reference is unavailable given the jury's
findings and rejection of the greater offenses.
The district court did not err in applying the 2A3.4(c)(1) cross-reference on
Counts I, II and III. Section 2A3.4(c)(1) states that "[i]f the offense involved criminal
sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. §
2241 or § 2242), apply § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal
Sexual Abuse)." Discussed in detail above, there was evidence adduced at trial of acts
punishable under 18 U.S.C. § 2241 for aggravated sexual abuse and defined at 18
U.S.C. § 2246(2), even though the jury convicted No Neck of the lesser-included
offense of abusive sexual contact. Acquitted conduct may be used for sentencing
purposes if proved by a preponderance of the evidence. United States v. Whatley, 133
F.3d 601, 606 (8th Cir. 1998). Therefore, the cross-reference was appropriately
applied by the district court and the ultimate sentence was reasonable.
Finally, the imposition of a lifetime of supervised release, also challenged by
No Neck, was not an abuse of discretion here. The court appropriately considered the
offense charged, the presentence report and all of the evidence presented at trial and
made an informed decision.
-10-
III. CONCLUSION
For the reasons stated herein, we affirm.
______________________________
-11-