United States v. Cyrus Free ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3207
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Cyrus Allan Free
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 15, 2020
Filed: October 1, 2020
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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury found Cyrus Allan Free guilty of the following offenses: aggravated
sexual abuse of a minor under the age of twelve years old, in violation of 18 U.S.C.
§§ 2241(c) and 1153 (count I); sexual abuse of a minor between the ages of twelve
and sixteen years old, in violation of 18 U.S.C. §§ 2243(a) and 1153 (count III); and
abusive sexual contact, in violation of 18 U.S.C. §§ 2244(a)(3) and 1153 (count V).
The district court1 sentenced Free to life imprisonment on count I, 180 months’
imprisonment on count III, and 24 months’ imprisonment on count V, with the
sentences to run concurrently. Free argues that the district court abused its discretion
in excluding certain evidence, that the evidence was insufficient to support his
conviction on count I, and that his sentence is substantively unreasonable. He also
raises a claim of ineffective assistance of counsel, which we do not address because
it is premature. See United States v. Oliver, 950 F.3d 556, 566 (8th Cir. 2020) (“We
review ineffective-assistance claims on direct appeal only ‘where the record has been
fully developed, where not to act would amount to a plain miscarriage of justice, or
where counsel’s error is readily apparent.’” (quoting United States v. Thompson, 690
F.3d 977, 992 (8th Cir. 2012))). We affirm.
G.M. lived with her grandmother, Veronica Free, for most of her life. Cyrus
Free moved into the home when G.M. was five. Although he was not married to
Veronica, G.M. referred to Free as her grandfather. During the school day on April
19, 2017, when G.M. was fourteen years old, she told a friend that her grandfather
had been raping her. The allegations were eventually relayed to a school
administrator, who then called child protective services.
School administrators brought G.M. to a child protective services office on
April 20, 2017, where she reported that Free had sexually abused her. G.M. then was
taken to the emergency room and thereafter transferred to a different hospital for an
examination by a Sexual Assault Nurse Examiner. G.M. reported that her grandfather
had last assaulted her on April 18, 2017, when he engaged in vaginal intercourse
while wearing a condom. G.M. left for a school trip to Washington D.C. soon
thereafter.
1
The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska.
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While executing a search warrant, a law enforcement officer discovered a used
condom and wrapper in the garbage can outside Veronica Free’s home. DNA
analysis revealed that the condom contained a DNA profile consistent with a mixture
of two individuals, Free and G.M. Free was eventually arrested and charged with the
offenses set forth above, among others.
G.M. testified at trial that Free began molesting her when she was eight years
old. According to G.M., “he started putting his fingers inside [her] vagina, and it just
kept getting worse over the years.” Free began trying to have vaginal intercourse
with G.M. when she was nine years old, but was physically unable to penetrate her
until she was eleven. G.M. testified that he would instead anally penetrate her and
would often force her to perform oral sex on him. When G.M. became older, Free
would regularly have vaginal intercourse with her, sometimes using a condom. He
told her not to tell anyone about the sexual abuse, threatening to hurt her grandmother
and siblings if she did so. G.M. stated that her grandmother twice entered a room
while G.M. was performing oral sex on Free. Veronica Free testified that Free
sometimes slept in G.M.’s room and that she once had walked into a room to find
Free lying on the bed, with G.M. sitting on her knees by Free’s waist.
G.M. testified on cross-examination that she had been accepted into a special
school program, in which students took advanced classes, went on annual trips, and
received college scholarships. G.M. testified that she sometimes got into trouble, but
the district court disallowed questions regarding whether Veronica and Cyrus Free
had found marijuana in G.M.’s bedroom and whether they had made G.M. take an
over-the-counter drug test.
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Free was found guilty on all counts.2 At sentencing, the district court
determined that Free’s total offense level was 43, that his criminal history category
was V, and that his sentencing range under the U.S. Sentencing Guidelines
(Guidelines) was life imprisonment.
Free argues that the district court abused its discretion in excluding evidence
that G.M. had kept drugs in her bedroom and had tested positive for marijuana use
shortly before she disclosed that Free had been sexually abusing her. See United
States v. Battle, 774 F.3d 504, 512 (8th Cir. 2014) (standard of review). Relevant
evidence of a prior act is not admissible to prove a person’s character in order to show
that on a particular occasion she acted in accordance with the character. Fed. R. Evid.
404(b)(1). Such evidence may be admissible, however, to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Fed. R. Evid. 404(b)(2). Evidence is relevant if it tends to make
a fact more or less probable and the fact is of consequence in determining the action.
Fed. R. Evid. 401.
Free contends that the excluded evidence would have helped prove his theory
that G.M. falsely accused him of rape to prevent him from punishing her. He argues
that “[t]he fact that Free might have been disciplining G.M. for misconduct was
crucial to explaining why G.M. might have a reason to lie about the abuse.”
Appellant’s Br. 21. We agree that the evidence of Free’s discipline of G.M. was
relevant, in that it had a tendency to make it more probable that G.M. leveled a false
accusation against Free to retaliate against him and to avoid future punishment. The
district court did not limit defense counsel’s inquiry into Free’s discipline of G.M.,
however, leaving counsel free to ask whether G.M. was concerned that Free would
punish her for misconduct by forbidding her from attending the school trip to
2
The district court vacated Free’s convictions on counts II and IV as potentially
lesser included offenses of counts I and III.
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Washington D.C. The district court disallowed only questions regarding G.M.’s
having marijuana in her room and being required to take a drug test. Any evidence
of G.M.’s drug use would not have tended to prove the alleged motives of retaliation
and avoiding punishment. We thus find no abuse of discretion in the district court’s
decision to exclude the evidence.
Free next argues that the evidence was insufficient to convict him of count I
of the indictment, which alleged that Free had knowingly engaged in a sexual act and
had caused G.M. to engage in a sexual act before she attained the age of twelve years,
in that he “did digitally penetrate G.M.’s vaginal opening with his finger.” We
review the sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the verdict and giving the verdict the benefit of all reasonable inferences.
United States v. Fool Bear, 903 F.3d 704, 708 (8th Cir. 2018). We will reverse a
conviction “only if no reasonable jury could have found the defendant guilty beyond
a reasonable doubt.” Id. (quoting United States v. Tillman, 765 F.3d 831, 833 (8th
Cir. 2014)).
Free contends that the government failed to prove that any sexual act occurred
before G.M. turned twelve years old. See id. at 710 (“Age is a necessary element of
the offense: the victim must be ‘another person who has not attained the age of 12
years.’” (quoting 18 U.S.C. § 2241(c))). As set forth above, G.M. testified that the
abuse began when she was eight and that she knew that the digital penetration began
before she was twelve because, despite his attempts to do so, Free was unable to have
vaginal intercourse with her until she was eleven. G.M.’s testimony on her age and
the sexual act was unequivocal:
Q: I want to go back to when you were talking about him putting his
fingers into you. Did that take place before you turned 12 years
old?
A: Yes.
...
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Q: Okay. And how did you know that it was his finger as opposed
to an object or some other body part?
A: Because he was putting his hand in that area and he told me he
was going to do it.
A reasonable jury thus could rely on G.M.’s testimony to find that Free digitally
penetrated G.M. before she was twelve years old. See Fool Bear, 903 F.3d at 710
(holding that victim’s testimony was sufficient to prove that she was younger than
twelve when the aggravated sexual abuse occurred); United States v. DeCoteau, 630
F.3d 1091, 1097 (8th Cir. 2011) (“[A] victim’s testimony alone can be sufficient to
prove aggravated sexual abuse.”); see also United States v. Never Misses A Shot, 781
F.3d 1017, 1025 (8th Cir. 2015) (“[I]t is for the jury, not a reviewing court, to
evaluate the credibility of witnesses and to weigh their testimony.” (quoting United
States v. Mallen, 843 F.2d 1096, 1099 (8th Cir. 1988))).
Finally, Free argues that he should have been sentenced to the mandatory
minimum sentence of thirty years’ imprisonment, see 18 U.S.C. § 2241(c), which
would “put [him] into his eighties when he is released.” Appellant’s Br. 27. He
contends that because he would be statistically unlikely to recidivate at that age, the
life sentence imposed by the district court is greater than necessary to serve federal
sentencing goals under 18 U.S.C. § 3553(a). The record reveals that the district court
gave due consideration to defense counsel’s well-thought-out, well-presented
argument for a lesser-than-life sentence, and we conclude that it did not abuse its
discretion in determining that Free’s age did not warrant a downward variance from
the advisory Guidelines sentence. See United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc) (standard of review); see also United States v. King, 898
F.3d 797, 810 (8th Cir. 2018) (“The district court’s decision not to weigh mitigating
factors as heavily as [the defendant] would have preferred does not justify reversal.”
(internal quotation marks and citation omitted)).
The judgment is affirmed.
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