United States v. Sylvan Godfrey ( 2015 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-2954
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Sylvan Godfrey
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of South Dakota - Pierre
    ____________
    Submitted: March 9, 2015
    Filed: May 4, 2015
    [Unpublished]
    ____________
    Before WOLLMAN, BEAM, and COLLOTON, Circuit Judges.
    ____________
    PER CURIAM.
    Sylvan Godfrey was convicted on one count of aggravated sexual abuse of a
    child, in violation of 
    18 U.S.C. §§ 1153
    , 2241(c), and 2246(2)(D). Godfrey appeals,
    challenging the district court’s1 admission of evidence of an earlier sexual assault by
    Godfrey. We affirm.
    From 2004 to 2007, sisters R.H. and T.H. lived with relatives near Bonesteel,
    South Dakota. During the summer of 2006 or 2007, their cousin Jasmine took them
    to a party at an apartment in Milk’s Camp Housing, tribal housing near Bonesteel.
    Jasmine became very intoxicated. R.H., who was then three or four years old, and
    T.H., who was then seven years old, went to sleep on a bed in a back bedroom, where
    Godfrey and one or more other men were sleeping. Godfrey sexually assaulted R.H.
    that night.
    In 2013, Godfrey was charged with two counts of aggravated sexual abuse of
    a child. The first count alleged sexual contact between Godfrey’s penis and R.H.’s
    vulva. The second count alleged sexual contact between Godfrey’s fingers and hand
    and R.H.’s genitalia. Before trial, the government filed a notice of intent to introduce
    evidence of Godfrey’s prior sexual assault of a thirteen- or fourteen-year-old girl,
    A.R.
    A two-day jury trial commenced. R.H. testified that Godfrey’s hand touched
    her “private part,” which she described as the body part a girl uses to urinate, and that
    she began to cry, causing T.H. to wake up. T.H. testified that she saw Godfrey on top
    of R.H. and that both were naked from the waist down. T.H. indicated that Godfrey’s
    penis was touching R.H.’s “private part.” T.H. testified that when she got out of bed
    to go to the bathroom and find Jasmine, Godfrey also got out of bed. He then threw
    R.H.’s pants to R.H. and told her to put them on.
    1
    The Honorable Roberto A. Lange, United States District Judge for the District
    of South Dakota.
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    The government then called a retired detective to testify regarding Godfrey’s
    admissions related to two incidents of sexual assault that occurred during the summer
    of 2001: (1) that Godfrey had placed his hand between A.R.’s legs and had sexual
    thoughts while his hand was on her vagina and (2) that Godfrey had become sexually
    aroused when A.R. placed her hand on his penis and rubbed her vagina on his
    buttocks. The district court determined that evidence of the first incident was
    admissible under Federal Rule of Evidence 413, but that evidence of the second
    incident would be unfairly prejudicial and thus was not admissible. After the district
    court gave a limiting instruction to the jury, the detective testified as follows:
    A:     [Godfrey] stated that [he and A.R.] were wrestling, and he put his
    hands between her leg[s] to lift her, and at that point he realized
    his hand was against her clothed vagina. And he said he left it
    there on purpose, and he had sexual thoughts while his hand was
    there.
    Q:     Did Mr. Godfrey indicate how long he left his hand against A.R.’s
    clothed vagina?
    A:     Initially, he said a minute or more, and then a short time later said
    it was probably 30 seconds.
    The jury found Godfrey not guilty on count one and guilty on count two.
    Godfrey argues that the district court abused its discretion in admitting the
    detective’s testimony. See United States v. Gabe, 
    237 F.3d 954
    , 959 (8th Cir. 2001)
    (standard of review). In sexual-assault cases, proof of prior offenses of sexual assault
    is generally admissible against the defendant. See Fed. R. Evid. 413(a). Moreover,
    “[t]he evidence may be considered on any matter to which it is relevant,” 
    id.,
     and thus
    may be used to show “the defendant’s propensity to commit such offenses,” Gabe,
    
    237 F.3d at 959
    . See also United States v. Crawford, 
    413 F.3d 873
    , 875 (8th Cir.
    -3-
    2005) (per curiam) (“Assuming the prior offenses are relevant, Rule 413 supersedes
    Rule 404’s prohibition against character evidence.”).
    Godfrey contends that evidence of the sexual assault involving A.R. was not
    relevant to the offense involving R.H. He argues that the assaults were different
    because they involved girls of different ages and because—unlike the sexual assault
    of R.H.—the sexual assault of A.R. “occurred incident to playful wrestling,” during
    which Godfrey “apparently did not have sexual thoughts initially.” “Evidence is
    relevant if: (a) it has any tendency to make a fact more or less probable than it would
    be without the evidence; and (b) the fact is of consequence in determining the action.”
    Fed. R. Evid. 401. We have said that “[a] relevant sexual assault is one committed
    in a manner similar to the charged offense.” United States v. Rodriguez, 
    581 F.3d 775
    , 796 (8th Cir. 2009) (citing Crawford, 
    413 F.3d at 875-76
    ). The evidence of
    Godfrey’s admission regarding A.R. meets the test for relevancy set forth in Rule 401,
    and we agree with the district court’s analysis that the two assaults were similar:
    There is the fact that A.R. at the time is a minor . . . . The touching is of
    the vagina, albeit over the clothing. It is a touching that is identified as
    being for sexual gratification by Mr. Godfrey.
    The different ages of the girls and the somewhat different circumstances of the
    assaults do not render the evidence regarding the sexual assault of A.R. irrelevant.
    See, e.g., United States v. Hollow Horn, 
    523 F.3d 882
    , 887-89 (8th Cir. 2008)
    (holding that the district court did not abuse its discretion in admitting evidence of
    defendant’s rape of a twenty-year-old woman in a case involving defendant’s abusive
    sexual contact of a seven-year-old girl and a ten-year-old girl).
    Godfrey also argues that the evidence should have been excluded as unfairly
    prejudicial. “The court may exclude relevant evidence if its probative value is
    substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.
    -4-
    Godfrey’s admission is probative because it tends to prove Godfrey’s propensity to
    assault girls by placing his hand on their vaginas for sexual gratification. Despite the
    especially prejudicial nature of propensity evidence, such evidence is admissible
    under Rule 413. See Crawford, 
    413 F.3d at 876
     (“[T]here is ‘strong legislative
    judgment that evidence of prior sexual offenses should ordinarily be admissible.’”
    (quoting United States v. LeCompte, 
    131 F.3d 767
    , 769 (8th Cir. 1997))). Godfrey
    has not shown “unfair prejudice, that is, an undue tendency to suggest decision on an
    improper basis.” Gabe, 
    237 F.3d at 960
     (quoting United States v. Yellow, 
    18 F.3d 1438
    , 1442 (8th Cir. 1994)). Moreover, the district court limited the danger of unfair
    prejudice by instructing the jury that Godfrey “is on trial only for the crimes charged
    in the Indictment. The testimony of prior misconduct does not mean that the
    defendant is guilty of the offenses charged in the Indictment.” We thus conclude that
    the district court did not abuse its discretion in admitting evidence regarding the
    sexual assault of A.R.
    We have considered Godfrey’s pro se letter to the court, in which he argues that
    his attorney failed to interview potential witnesses. We ordinarily do not consider
    claims of ineffective assistance of counsel on direct appeal, United States v. Looking
    Cloud, 
    419 F.3d 781
    , 788-89 (8th Cir. 2005), and we decline to do so here.
    The judgment is affirmed.
    ______________________________
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