United States v. Kevin Bassham

United States Court of Appeals
For the Eighth Circuit
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No. 18-1509
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kevin Leon Bassham
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 14, 2019
Filed: March 6, 2019
[Unpublished]
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Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
While serving a term of supervised release, Kevin Leon Bassham was accused
of touching the breast of an eleven-year-old girl who is diagnosed with an intellectual
delay. The district court1 revoked Bassham’s supervised release and sentenced him
to 24 months’ imprisonment followed by one year of supervised release. Bassham
appeals, arguing that the court clearly erred in determining that he violated a
condition of his supervised release and that his 24-month sentence is substantively
unreasonable. We affirm.
In October 1997, a jury convicted Bassham of being a felon in possession of
firearms, possession of stolen firearms, aiding and abetting the commission of a bank
robbery, and conspiracy to commit a bank robbery. Bassham was sentenced to 240
months’ imprisonment and three years of supervised release. He began serving his
term of supervised release in February 2015, which was revoked in July 2016 because
he failed to follow the probation office’s instructions and comply with his supervised
release terms. The district court sentenced him to eight months’ imprisonment
followed by a two-year term of supervised release. In January 2018, while again on
supervised release, the United States Probation Office filed a petition alleging that
Bassham had committed the new law violation of indecent contact with a minor,
thereby violating his release conditions.
The district court heard evidence on the allegation at a revocation hearing in
February 2018. The government first called the victim, then-twelve-year-old K.O.
She testified that she and her mother had rented the upstairs apartment of a building
owned by her mother’s ex-boyfriend, Gregory Schminkey, who lived in the
downstairs apartment. K.O. had permission to move freely throughout the home. On
one occasion, K.O. went downstairs to change her cat’s litter box. Bassham, a friend
of Schminkey’s, was also in the apartment. K.O. testified that she changed the litter
box and then sat on the couch in the living room, whereupon Bassham joined her and
reached his hand under her clothing, touching her breast. She recounted that
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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Bassham touched her twice but said that she did not recall the second time. She
testified that she had told the school nurse about the incident and that she had
reported only one touching in a different interview.
The court then heard from K.O.’s school nurse, Shukrije Ramku, who had
initially met with K.O. to discuss parental abuse and K.O.’s black eye. Ramku
testified that K.O. told her that her mother had kicked her in the ribs. When asked if
anything else was going on at home, K.O. told Ramku that Bassham had twice
touched her in “this area,” pointing to her breasts. Brenda Bartz, from the Iowa
Department of Human Services, also spoke with K.O. and later observed her
interview at the UnityPoint Child Protection Center (CPC). Bartz testified that K.O.
said Bassham had touched her “here” and waved her hand over her breast area. K.O.
told Bartz that the contact was “skin to skin” and had happened twice. Bartz also
testified that K.O. is diagnosed with an intellectual delay and receives special
education at school. When asked about K.O.’s reputation for truthfulness, Bartz
testified that K.O. was “very matter of fact” in her interviews, that she had never
known K.O. to be dishonest with her, and that “both [K.O.’s teacher and school
principal] indicated that she was a very truthful person.” Bartz also recalled
discussing potential parental abuse and K.O. stating that her mom accidentally gave
her a black eye.
Deputy Douglas VanBennekom with the Iowa County Sheriff’s Office testified
that he and Bartz had interviewed Bassham, who denied touching K.O.’s breasts.
Bassham told VanBennekom that he and K.O. regularly hugged and that K.O.’s
mother was verbally and possibly physically abusive towards her. VanBennekom
also testified that he had interviewed K.O.’s mother, who had accused K.O. of
stealing and lying in the past. The government also played a video of K.O.’s CPC
interview, which both Bartz and VanBennekom had observed from a different room,
wherein she recounted that the defendant touched her breasts with his hand while they
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were seated on the living room couch. K.O. mentioned only one incident during this
interview.
Bassham called Schminkey, who testified that he was Bassham’s coworker and
let Bassham park in his driveway on workdays. Thus, Bassham frequently visited his
home. He testified that Bassham and K.O. had a “daughter and father” relationship
and that K.O.’s mother was verbally and physically abusive towards her. He testified
that he had known K.O. to lie and steal, and mentioned two occasions when K.O.
stole his property and lied about doing so.
At the conclusion of evidence, the court revoked Bassham’s supervised release
and imposed its 24-month sentence, stating that it found K.O. to be credible and that
the government had proved by a preponderance of the evidence that Bassham
committed the offense of indecent contact with a child in violation of Iowa Code
§ 709.12(1)(a). See United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003)
(“If the government proves by a preponderance of the evidence that a defendant
violated a condition of supervised release . . . the district court has discretion to
revoke supervised release.”).
Bassham argues that the court clearly erred by crediting K.O.’s testimony and
thus in finding that he had committed a new law violation. He contends that K.O.
offered inconsistent statements regarding the incident and her mother’s abusive
behavior, that she had lied and stolen her landlord’s possessions in the past, that she
was only twelve years old and developmentally disabled at the time of the hearing,
and that her testimony regarding the incident was incomplete. We review for clear
error the court’s fact-finding as to whether a violation occurred, id., and will reverse
a revocation decision “only if we have ‘a definite and firm conviction that the District
Court was mistaken.’” United States v. Petersen, 848 F.3d 1153, 1156 (8th Cir. 2017)
(quoting United States v. Boyd, 792 F.3d 916, 919 (8th Cir. 2015)).
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We conclude that the court did not clearly err in crediting K.O.’s testimony.
It explained:
Challenges to the credibility of this child were not successful. In her
school, she had a reputation for truthfulness, and as I watched her
testify, she was, as the teachers would say, was very matter of fact about
it; didn’t embellish, answered the questions. The inconsistency about
whether this happened one time or two times was explained and so the
Court was not bothered about that at all. It seems to me that the only
person challenging this child might be her own mother, which is sad, but
given the history and characteristics of the mother as revealed in the
evidence, I’m not particularly surprised.
Credibility determinations are the province of the district court at revocation hearings
and as such are “virtually unreviewable on appeal.” Carothers, 337 F.3d at 1019(quoting United States v. Hernandez, 281 F.3d 746, 748 (8th Cir. 2002)). The
evidence presented, including that K.O. recounted the incident four times, that she
told a predominantly consistent story each time, and that she is known to be truthful
at school does not leave us with a “definite and firm conviction” that the court
mistakenly found her to be credible. Id.Bassham also argues that the court abused its discretion in imposing a 24-
month sentence by failing to fully and fairly consider the 18 U.S.C. § 3553(a) factors.
See Peterson, 848 F.3d at 1157 (standard of review). Bassham contends that the court
ignored the “tepid nature of the Government’s evidence,” his lack of other violations
while on supervised release, and his gainful employment since August 2017. A
district court abuses its discretion if it “fails to consider a relevant factor that should
have received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors.” Id. (quoting United States v. Lozoya, 623 F.3d 624, 626
(8th Cir. 2010)).
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We conclude that the district court did not abuse its discretion. It explained
that it had carefully considered the § 3553(a) factors and particularly those applicable
to revocation proceedings; that Bassham was originally convicted of several serious
crimes; that he has had “a very serious life of crime and serious criminal behavior
while in the community”; that the offense at issue “against a 12-year-old
learning-disabled or learning-challenged child is really reprehensible”; that the victim
likely lacked proper supervision and support from her mother and was therefore
vulnerable; that Bassham had never been successful on supervision; that “he was able
to maintain, as far as we know, a fairly stable existence, but that was for a period of
less than 1 year”; and, finally, that “[t]here’s nothing to offer him in the community
at this stage that hasn’t already been offered.” This is not the unusual case in which
a sentence is substantively unreasonable. See Petersen, 848 F.3d at 1157.
The judgment is affirmed.
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