United States v. Terry Harlan , 815 F.3d 1100 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1552
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Terry L. Harlan
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 20, 2015
Filed: February 16, 2016
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Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
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RILEY, Chief Judge.
A jury found Terry Lee Harlan, a Native American man, guilty of domestic
assault in Indian country by an habitual offender in violation of 18 U.S.C. § 117. The
district court1 sentenced Harlan to 41 months imprisonment. Harlan appeals his
conviction and sentence. With jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND2
Harlan lived with his girlfriend Marlene Freemont, a Native American woman,
in his trailer home on the Omaha Indian Reservation. Freemont moved out for two
weeks early in 2014 and spent some time with another man. When Harlan and
Freemont got back together in March, Freemont lied about seeing another man for
fear Harlan would hit her. Harlan, who earlier had seen Freemont with the man, got
mad about the lie and hit the windshield of the car he and Freemont were sitting in.
On March 6, 2014, the evening Freemont returned, she and Harlan drank beer
together and Freemont, a long-time methamphetamine user, got high. Harlan
eventually went to bed, but Freemont stayed up all night drinking beer into the next
day. Harlan stayed sober for a while the next day, but began drinking with Freemont
again in the evening. Both were drunk by 8:00 p.m., and Freemont was still high on
meth from the day before.
Harlan’s sister, Andrea Harlan, and Harlan’s thirteen-year-old daughter, K.H.,
joined the couple at the trailer later that night. Harlan and Freemont adjourned to the
bedroom to keep drinking and watch television. Harlan got mad when Freemont
mentioned the other man she dated and pushed Freemont into the closet with both
hands. Despite Freemont’s pleas for Harlan to stop, he grabbed her by the hair and
struck her face and head about eight times. Freemont fell to the floor, and Harlan
kicked her body twice.
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
2
“We present the facts in the light most favorable to the jury’s verdict.” United
States v. Fuller, 557 F.3d 859, 862 (8th Cir. 2009).
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When Harlan stopped, Freemont reached for her shoes and sweater so she
could leave, but Harlan tossed them aside and began hitting her again, asking whether
she intended to see another man. Harlan then ordered Freemont to lay on their bed
while he went to sleep. After Harlan passed out, Freemont left the trailer to report the
beating to the police. On her way out, Freemont asked Andrea if she had seen
Freemont’s sweater. She had not, so, despite the cold weather, Freemont left the
trailer wearing only a short-sleeved shirt and sweat pants. As she left, Freemont told
Andrea to tell Harlan that Freemont was going to report what Harlan had done.
No one was at the police station when Freemont arrived. She was able to flag
down an officer from a nearby town who contacted Omaha Nation Law Enforcement
Services, the department with jurisdiction over assaults between Native Americans
on the reservation. Officer William Webster responded and took Freemont’s
statement and examined her injuries. Officer Webster called an ambulance so a
member of the rescue squad could evaluate Freemont’s injuries and arranged for
Freemont to spend the night in jail to sleep off her substantial intoxication.
After her release early the next morning, Freemont sought treatment at Indian
Health Services Hospital in Winnebago, Nebraska, reporting she had been assaulted.
Physician assistant Carmel Berglin, who has extensive experience treating assault
victims, examined Freemont. Freemont told Berglin that Harlan punched her in the
face and chest and grabbed her right arm.
Berglin observed multiple contusions, including a bruise over Freemont’s right
cheek bone, and tenderness on Freemont’s face and head. Berglin also noted a large
contusion on Freemont’s forearm, a bruise on her chest, and tenderness along her ribs.
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After the assault, Freemont stayed with her mother. When Freemont did return
to the trailer to see Harlan, he told her he was sorry and would not hit her again, but
there was nothing he could do about what he had done.
On June 18, 2014, a grand jury charged Harlan with domestic assault in Indian
country by an habitual offender. See 18 U.S.C. § 117. The indictment charged that
Harlan had multiple prior convictions for domestic assault, including, as relevant
here, a 2002 tribal-court conviction for simple assault and a 2003 federal conviction
for assault resulting in serious bodily injury. On October 27, 2014, Harlan filed a
motion in limine challenging the admissibility of his 2002 tribal-court conviction.3
Harlan argued the prior conviction was for attempt, not assault. The district court
denied the motion.
Harlan’s jury trial began on November 17, 2014. The government first called
Freemont, who described the assault in vivid detail. Berglin testified Freemont’s
injuries were entirely consistent with her description of the assault. On cross-
examination, Berglin opined some—but not all—of Freemont’s injuries could have
resulted from a fall.
3
In support of his motion in limine, Harlan entered into the record Omaha
Tribal Code § 5-4-4(a) (2013), which states, in relevant part, “A person is guilty of
simple assault if he . . . attempts to cause or purposely, knowingly, or recklessly
causes bodily injury to another; or . . . attempts by a show of force or violence to put
another in fear of imminent serious bodily injury.” When asked at oral argument why
the record did not include the 2002 version of the tribal statute under which Harlan
pled guilty, Harlan explained the Tribal Code was revised in 2003 and he was unable
to find the 2002 version. Relying on the alignment between the language in the
charging documents and the current version of § 5-4-4, Harlan maintains the statutes
were renumbered but the elements of simple assault did not change. We accept the
parties’ use of the record version.
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The government next called Freemont’s sister Delilah Freemont (Delilah), who
had an intimate relationship with Harlan more than a decade earlier. While they were
together, Harlan assaulted Delilah multiple times. Over Harlan’s renewed objection,
the district court admitted three exhibits showing two of Harlan’s prior assault
convictions. Exhibits 1 and 2 described Harlan’s 2003 federal conviction for
assaulting Delilah and causing serious bodily injury. Exhibit 3 documented Harlan’s
2002 tribal-court conviction for simple assault on Delilah. After briefly
acknowledging her past relationship with Harlan, Delilah stated that a week after the
assault on Freemont, Delilah observed injuries on Freemont consistent with
Freemont’s description of the assault.
Harlan’s sister Andrea testified that on the night of the charged assault, she
returned to the trailer where she lived with Harlan and Freemont. Andrea stated she
and K.H. watched television in the living room when Harlan and Freemont went to
the bedroom. Both Harlan and Freemont were drinking alcohol, and Harlan needed
help to the bedroom because he was physically impaired by the alcohol. Andrea soon
heard arguing. When she went to the bedroom to investigate, Andrea learned Harlan
was mad because Freemont would not go to bed and let him sleep.
Andrea denied hearing anything suggesting a physical struggle, assault, or
someone falling down. Andrea testified Freemont later came out of the bedroom
asking for a sweater, but left without one when Andrea told her she did not have one.
Andrea did not notice any bleeding or other signs of a fight when Freemont left the
trailer and testified Freemont did not mention any injuries and did not ask for any
help. Freemont did not return, but the police arrived thirty to forty minutes later to
investigate.
K.H. testified next. K.H. observed Harlan and Freemont drinking and talking
at the kitchen table the night of the assault. Shortly after K.H. helped Harlan to the
bedroom, K.H. heard yelling and went to the bedroom to see what was happening.
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K.H. asked Harlan, who appeared to be mad, why he was yelling, and he replied
Freemont would not let him sleep.
K.H. made at least two or three trips to the bedroom to investigate the yelling.
At one point, K.H. observed Harlan sitting on the bed with Freemont standing nearby.
When Harlan moved, Freemont raised her hands to defend herself. K.H. asked why
she reacted that way, and Freemont replied she thought Harlan was going to hit her
as he had before. K.H. never saw a physical altercation between Harlan and Freemont
and did not hear anyone falling down. K.H. did observe Freemont crying, but
Freemont explained she was sad about a friend who died. K.H. did not think
Freemont looked like she was hurt. Like Andrea, K.H. recalled Freemont later asking
for a sweater and leaving the trailer without a sweater even though it was cold. K.H.
stated the police arrived about thirty minutes after Freemont left.
Officer Webster testified he took a report from Freemont the night of the
assault. Recalling Freemont was not dressed appropriately for the cold weather that
night, Officer Webster testified she appeared to be intoxicated and afraid. Freemont
told Officer Webster that Harlan had assaulted her, and showed him the injuries to her
right cheek and forehead. After taking Freemont to jail and arranging for a medical
evaluation, Officer Webster went to Harlan’s trailer. Visibly intoxicated, Harlan
denied having a physical altercation with Freemont, and Officer Webster did not see
any marks on Harlan’s hands. Officer Webster arrested Harlan, who needed
assistance to walk to the squad car.
The government entered certain factual stipulations about Harlan’s prior
convictions and his trailer’s location in Indian country before resting its case. Harlan
did not testify or call any witnesses. On November 19, 2014, the jury found Harlan
guilty.
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Before sentencing, Harlan moved for a sentence below the advisory United
States Sentencing Guidelines (Guidelines) range based on his poor physical health.4
The government resisted the motion, highlighting Harlan’s history of assaultive
conduct and observing his health problems did not prevent him from getting drunk
and assaulting Freemont.
After reviewing Harlan’s brief and hearing the parties’ arguments, the district
court denied Harlan’s motion. Troubled by Harlan’s failure to accept responsibility
for the assault and his lack of remorse for hurting Freemont, the district court
sentenced Harlan to 41 months—the bottom of the advisory Guidelines range. Harlan
appeals, challenging the admission of his tribal-court conviction, the sufficiency of
the evidence, and his sentence.
II. DISCUSSION
A. Harlan’s Tribal-Court Conviction
Section 117(a)(1) provides in relevant part,
Any person who commits a domestic assault within . . . Indian country
and who has a final conviction on at least 2 separate prior occasions in
Federal, State, or Indian tribal court proceedings for offenses that would
be, if subject to Federal jurisdiction . . . any assault, sexual abuse, or
serious violent felony against a spouse or intimate partner . . . shall be
fined under this title, imprisoned for a term of not more than 5 years, or
both.
(Emphasis added). Over Harlan’s objection, the district court admitted evidence that
in 2002, Harlan pled guilty in tribal court to assaulting Delilah in Indian country
4
Harlan suffers from a number of health problems, including diabetes,
hypertension, end-stage renal disease, coronary artery disease, congestive heart
failure, cerebral palsy, and anemia chronic disease. He needs dialysis several times
per week and takes a long list of medications.
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while they were in an intimate relationship. The district court concluded the phrase
“any assault” in § 117(a)(1) unquestionably included Harlan’s simple-assault
conviction under the tribal code. Harlan argues the district court erred in admitting
his 2002 tribal-court conviction based on an erroneous interpretation of 18 U.S.C.
§ 117(a)(1).5
We review de novo issues of statutory interpretation. See, e.g., United States
v. Woodard, 694 F.3d 950, 953 (8th Cir. 2012); United States v. Boaz, 558 F.3d 800,
806 (8th Cir. 2009). “We review the district court’s evidentiary rulings, including its
rulings on motions in limine, for an abuse of discretion.” United States v. Parish, 606
F.3d 480, 486 (8th Cir. 2010).
Harlan contends the district court abused its discretion in denying his motion
in limine and admitting evidence of his 2002 simple-assault conviction as a predicate
offense for § 117(a)(1) because, in Harlan’s view, a closer examination of the
charging documents reveals Harlan pled guilty to a charge of “Attempt and not
[actual] Assault.” Pointing to language in the criminal complaint stating he
“attempt[ed] to cause bodily injury” to Delilah Freemont, Harlan asserts “prior
convictions for Attempt cannot be used as predicate offenses to fulfill the necessary
elements to prove a violation of 18 U.S.C. § 117.” Harlan misunderstands the nature
of criminal assault.
5
On December 14, 2015, the United States Supreme Court granted certiorari to
consider “whether reliance on valid uncounseled tribal-court misdemeanor
convictions to prove Section 117(a)’s predicate-offense element violates the
Constitution.” See United States v. Bryant, 769 F.3d 671, 673 (9th Cir. 2014), cert.
granted, No. 15-420, 2015 WL 5822186 (U.S. Dec. 14, 2015). We have held it does
not. See United States v. Cavanaugh, 643 F.3d 592, 594 (8th Cir. 2011); accord
United States v. Shavanaux, 647 F.3d 993, 998 (10th Cir. 2011). The Ninth Circuit
recently decided it does. See Bryant, 769 F.3d at 673. That issue is not before us
because Harlan did not raise the issue on appeal.
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In construing § 117(a), we start with “the language employed by Congress.”
Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979). Neither § 117 nor any other
provision of the chapter where § 117 resides defines the term “assault.” See
18 U.S.C. ch. 7. “[W]here a federal criminal statute uses a common-law term of
established meaning without otherwise defining it, the general practice is to give that
term its common-law meaning.” United States v. Turley, 352 U.S. 407, 411 (1957).
“‘Common law assault embraces two different crimes: [(1)] attempted battery, that
is, an intended effort to cause bodily harm to another which falls short of success
. . . regardless of whether the intended victim knows of the attempt,’” and (2) any “act
which is intended to, and reasonably does, cause the victim to fear immediate bodily
harm; such ‘menacing’ constitutes assault even if no physical harm is attempted,
achieved, or intended.” United States v. Olson, 646 F.3d 569, 573-74 (8th Cir. 2011)
(alteration omitted) (quoting United States v. Lee, 199 F.3d 16, 18 (1st Cir. 1999)).
The offense underlying Harlan’s 2002 tribal-court conviction for simple-assault
readily fits the first part of the common-law definition. See Anderson v. Crawford,
265 F. 504, 507 (8th Cir. 1920) (“While a battery always included an assault, assaults
often fall short of a battery. An assault is an attempt, which, if consummated, would
result in a battery.”). The district court did not err in denying Harlan’s motion in
limine and in allowing the government to use his simple-assault conviction as a
predicate offense under § 117(a).
B. Sufficiency of the Evidence
Harlan next contends the evidence was inconsistent and insufficient to convict
him of assaulting Freemont in violation 18 U.S.C. § 117. Questioning Freemont’s
perception, memory, and credibility, Harlan emphasizes (1) Freemont was under the
influence of drugs and alcohol; (2) Berglin testified some of Freemont’s injuries
possibly could have come from a fall; (3) Harlan was “drunk and disabled” and had
no marks on his hands; and (4) Andrea and K.H. did not see the assault or any injuries
before Freemont left the trailer. According to Harlan, “[s]uch facts could easily lead
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a reasonable jury to conclude that the injuries [Freemont] sustained were due to
multiple falls into fixed, hard objects, as opposed to the result of an assault committed
by Harlan.”
That may be true, but it is not the proper inquiry on appeal. The question we
must answer is not whether the jury could have reasonably decided the case
differently, but whether “no reasonable jury could have found [Harlan] guilty beyond
a reasonable doubt.” United States v. Carlson, 787 F.3d 939, 943 (8th Cir. 2015). In
deciding that question, we view the “evidence in the light most favorable to the jury’s
verdict, resolv[e] conflicts in the government’s favor, and accept[] all reasonable
inferences that support the verdict.” United States v. Dunn, 723 F.3d 919, 924 (8th
Cir. 2013). “We do not weigh the evidence or the credibility of the witnesses.”
United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir. 2007). “[T]he jury has sole
responsibility for resolving conflicts or contradictions in testimony, and we must
resolve credibility issues in favor of the verdict.” United States v. Spears, 454 F.3d
830, 832 (8th Cir. 2006).
In that light, the evidence adduced at trial was more than sufficient to support
the jury’s guilty verdict. Despite her intoxication, Freemont provided the jury with
a detailed account of the altercation she had with Harlan, the beating he gave her, and
the injuries he inflicted. Leaving the trailer when Harlan fell asleep, Freemont
promptly reported the assault to Officer Webster, who testified Freemont appeared
to be afraid. Officer Webster verified Freemont’s reported injuries and investigated
the assault. As soon as she could, Freemont sought treatment at the hospital. Berglin
testified Freemont’s injuries to her head, face, chest, ribs, and arm were entirely
consistent with Freemont’s report that Harlan punched her about eight times, grabbed
her right arm, and kicked her while she was down. Although no one else witnessed
the actual assault, testimony from Andrea and K.H. also bolstered Freemont’s
account. Both Andrea and K.H. heard Harlan yelling at Freemont for a long period
of time. K.H., who went back to the bedroom several times to investigate, testified
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that when Harlan moved, Freemont raised her hands to defend herself, explaining she
was afraid Harlan would hit her again. It was reasonable for the jury to credit
Freemont’s corroborated testimony and find Harlan guilty of domestic assault.
C. Substantive Reasonableness
Harlan last argues his sentence was substantively unreasonable because the
district court did not vary downward “from the advisory guidelines range for Harlan’s
various serious health problems.” We review the substantive reasonableness of a
sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
“A district court abuses its discretion and imposes an unreasonable sentence when it
fails to consider a relevant and significant factor, gives significant weight to an
irrelevant or improper factor, or considers the appropriate factors but commits a clear
error of judgment in weighing those factors.” United States v. Miner, 544 F.3d 930,
932 (8th Cir. 2008). Harlan’s within-Guidelines sentence is presumptively
reasonable. See Gall, 552 U.S. at 51. Harlan fails to rebut that presumption.
Harlan acknowledges the district court considered his myriad health problems
in imposing his sentence, but complains the district court should have given more
weight to that factor. “The fact the district court did not give [Harlan’s health
problems] as much ‘weight’ as [Harlan] would have preferred does not justify
reversal.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). “The district
court has wide latitude to weigh the [18 U.S.C.] § 3553(a) factors in each case and
assign some factors greater weight than others in determining an appropriate
sentence.” Id.
Here, the district court sentenced Harlan at the bottom of the Guidelines range
after considering various factors such as Harlan’s health, his history of criminal
assault, the seriousness of domestic violence, Harlan’s failure to accept responsibility
for his actions, and his lack of remorse for harming Freemont. “‘[T]he court carefully
explained the reasons for its sentence and its refusal to vary downward, and we see
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no indication that the court improperly weighed the sentencing factors.’” United
States v. Wanna, 744 F.3d 584, 589 (8th Cir. 2014) (quoting United States v. Von
Crutcher, 529 F. App’x 802, 803 (8th Cir. 2013) (unpublished per curiam)). Harlan’s
sentence is substantively reasonable.
III. CONCLUSION
We affirm Harlan’s conviction and sentence.
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