United States v. Lonnie Dale Spotted Bear ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-1008
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Lonnie Dale Spotted Bear
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of North Dakota - Bismarck
____________
Submitted: November 15, 2018
Filed: April 11, 2019
____________
Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
____________
STRAS, Circuit Judge.
A jury found Lonnie Dale Spotted Bear guilty of four counts of sexual abuse
involving three young female relatives. On appeal, he challenges the district court’s 1
decision to allow the government to play video recordings of their forensic
interviews for the jury. We affirm.
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
N.H.E., S.H., and M.S. accused Spotted Bear of molesting them at his home.
As part of the investigation into their accusations, a specially trained social worker
conducted a videotaped interview with each victim. After the investigation
concluded, the government charged Spotted Bear with two counts of aggravated
sexual abuse of a child under 12, one count of attempted aggravated sexual abuse of
a child under 12, and one count of abusive sexual contact with a child under 12. See
18 U.S.C. §§ 2241(c), 2244(a)(5).
Spotted Bear’s defense was that the three girls fabricated the allegations due
to an unrelated family disagreement and then embellished them in response to
pressure and coaxing by investigators. During Spotted Bear’s trial, all three girls
testified and described the abuse. To respond to the fabrication defense, the
government played a portion of each girl’s forensic interview for the jury. Their
responses during the interviews were generally consistent with their answers at trial.
Spotted Bear never objected at trial to the portions of the recordings that the
government played for the jury. Only now, on appeal, does he claim that they were
inadmissible because they contained hearsay. See Fed. R. Evid. 802. In the absence
of an objection, we review only for plain error, which requires Spotted Bear to show
that the district court made a “clear or obvious” error that affected his substantial
rights and that the error “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” United States v. White Bull, 646 F.3d 1082,
1091 (8th Cir. 2011) (citation omitted); see also Fed. R. Crim. P. 52(b).
We analyze N.H.E.’s interview first, because the circumstances leading to its
admission are different than for the other recordings. From the outset, Spotted
Bear’s theory was that N.H.E.’s trial testimony was an embellished version of what
she had said during her forensic interview, which itself embellished upon her
original allegations. In his opening statement, for example, Spotted Bear’s counsel
claimed that investigators encouraged N.H.E. “to say more stuff.” And later, while
cross-examining N.H.E., Spotted Bear’s counsel asked whether she had “added
-2-
some more things that [she] didn’t tell [the forensic interviewer].” He followed up
by inquiring whether, during the forensic interview, she had “added to [her] story.”
N.H.E. answered yes to both questions but did not explain what she added. This line
of questioning, especially in light of Spotted Bear’s theory of witness manipulation,
could have left the jury with the mistaken impression that N.H.E. had significantly
changed her story.
When a criminal defendant creates a false or misleading impression on an
issue, we have held the government may “clarify, rebut, or complete [the] issue”
with what would “otherwise [be] inadmissible evidence, including hearsay
statements.” United States v. Eagle, 515 F.3d 794, 801 (8th Cir. 2008). The
government played the recording to allow the jury to judge for itself whether N.H.E.
had in fact changed her story since her forensic interview. Cf. United States v. Smith,
591 F.3d 974, 982 (8th Cir. 2010) (holding that a defendant opened the door to the
playing of a recording of a child-sex-abuse victim’s forensic interview by asking the
interviewer about alleged inconsistencies between the victim’s trial testimony and
her interview). Having opened the door to this evidence, Spotted Bear cannot now
complain about its admission. 2 Accordingly, the district court did not err, much less
plainly err, when it allowed the government to play the recording of N.H.E.’s
forensic interview for the jury. See Eagle, 515 F.3d at 801; United States v.
Womochil, 778 F.2d 1311, 1315 (8th Cir. 1985).
The remaining two recordings call for a different analysis because Spotted
Bear’s counsel did not open the door to their admission through his questioning of
S.H. or M.S. Still, Spotted Bear failed to object to either recording, so he must
2
After the government played part of N.H.E.’s interview for the jury, Spotted
Bear asked the court to play an additional segment that he believed was particularly
favorable to his defense. To the extent he now complains about the hearsay evidence
he introduced, he invited the error and cannot challenge it. See United States v.
Jewell, 614 F.3d 911, 920 (8th Cir. 2010); see also United States v. Balfany, 965
F.2d 575, 583 (8th Cir. 1992) (holding that a defendant cannot object to evidence
that he directly “elicited”).
-3-
satisfy the plain-error test to receive any relief. For two reasons, he has not met his
burden of showing that the recordings affected his substantial rights. See United
States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (stating that courts must
“demand[] strenuous exertion” from defendants before granting relief on plain-error
review).
First, the recordings were largely “cumulative of other government evidence.”
United States v. Worman, 622 F.3d 969, 977 (8th Cir. 2010). S.H.’s sister, for
example, testified at length about S.H.’s abuse, and N.H.E. separately told the jury
that S.H. had confided in her about the abuse, even before either girl had told her
parents. The jury also learned about the specifics of M.S.’s abuse from two sources
other than the recording: M.S.’s own trial testimony as well as the testimony of her
mother. Her mother’s testimony, in particular, echoed M.S.’s forensic interview,
including the crucial fact that Spotted Bear molested her at his home on
Thanksgiving. To be sure, some of this other evidence may also have been hearsay,
but the fact that Spotted Bear does not challenge it means that we can consider it in
evaluating whether he was prejudiced. See United States v. Peneaux, 432 F.3d 882,
895 (8th Cir. 2005).
Second, the evidence of Spotted Bear’s guilt was strong overall. See United
States v. Gayekpar, 678 F.3d 629, 638 (8th Cir. 2012); see also United States v.
Ramos-Caraballo, 375 F.3d 797, 804 (8th Cir. 2004) (“Especially [when] there is
strong evidence of guilt, some improper repetition of testimony . . . in a generalized
effort to bolster the witness[] matters little.” (brackets, internal quotation marks and
citation omitted)). Specifically, the jury heard that Spotted Bear engaged in a
lengthy pattern of sexual abuse, that all three of his victims were female relatives
under the age of 12, and that he molested them in a similar fashion. Cf. United States
v. Never Misses A Shot, 781 F.3d 1017, 1027 (8th Cir. 2015) (stating that “evidence
that the defendant committed similar sexual assaults or child molestations” can be
used to prove guilt). In the end, the recordings were just “an extra helping” of what
the jury had already heard and “added nothing of substance to the government’s
case.” Ramos-Caraballo, 375 F.3d at 803–04 (citation omitted).
-4-
Accordingly, we affirm the judgment of the district court.
______________________________
-5-