United States v. Joseph Valerian Parshall

United States Court of Appeals
For the Eighth Circuit
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No. 13-2991
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Joseph Valerian Parshall
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 10, 2014
Filed: January 15, 2015
[Unpublished]
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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
A jury convicted Joseph Parshall on two counts of aggravated sexual abuse of
a child under 18 U.S.C. §§ 1151, 1153(a), 2241(c), and 2246(2)(B) and (C). The
district court1 imposed the mandatory minimum sentence of 30 years in prison for
each count pursuant to 18 U.S.C. § 2241(c). Parshall appeals, arguing that there is
insufficient evidence to support his convictions, his sentence violates his Fifth and
Eighth Amendment rights, and the jury did not find the victim's age beyond a
reasonable doubt. We affirm both Parshall's conviction and sentence.
I. Background
Parshall lived with his grandmother, Darlene Beaulieu ("Darlene"), in her house
on the Red Lake Indian Reservation from approximately February to July 2011.
During that time, Parshall often babysat and was otherwise alone with then-six-year-
old A.B. at Darlene's house. A.B. was a daughter of Parshall's cousin Fawn Beaulieu
("Fawn") and a great-granddaughter of Darlene.
On July 27, 2011, A.B. overheard Fawn mention that Parshall would soon move
out of Darlene's house. A.B. then told Fawn she was "glad" Parshall was leaving.
A.B.'s statement surprised Fawn, who was unaware of any problems between A.B. and
Parshall. Fawn then asked A.B. why she was glad; in response, A.B. stated for the first
time that Parshall had touched her "private parts," a term which A.B. used to describe
her breasts, vagina, and buttocks.
Fawn immediately notified the police and took A.B. to the Red Lake Hospital.
After conducting a preliminary evaluation of A.B., the hospital staff referred A.B. to
the Family Advocacy Center of Northern Minnesota (FACNM) for a sexual assault
examination and forensic review.
The next day, July 28, 2011, FACNM Executive Director and Forensic
Interviewer Aria Trudeau conducted a forensic review of A.B. During the review A.B.
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
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stated that Parshall "went inside" both her vagina and buttocks with his "hand" and
"tongue" on multiple occasions at Darlene's house. A.B. further stated that Parshall
had instructed A.B. to keep his conduct a secret.
FACNM forensic nurse Brittany Burkel then performed a sexual assault
examination of A.B. The examination revealed no physical injuries stemming from
Parshall's alleged conduct; however, Burkel stated that her findings were not
inconsistent with A.B.'s allegations of oral sex and digital penetration because of the
nature of the tissue at issue.
On September 21, 2011, Parshall was indicted and charged with two counts of
aggravated sexual abuse of a child less than 12 years old under 18 U.S.C. §§ 1151,
1153(a), 2241(c), and 2246(2)(B) and (C): one count for his alleged oral sex with
A.B., and the other count for his alleged digital penetration of A.B. The indictment
described the victim as "under the age of twelve years" in both counts.2 Parshall
pleaded not guilty.
A jury trial was held on February 6 and 7, 2012. The district court instructed the
jury at least twice—once before trial started, and once at the end of trial—about the
elements of the crimes with which Parshall was charged. The court made clear to the
jury that "each" of the elements of the crimes, including that the victim "had not yet
attained the age of twelve years," must be established "beyond a reasonable doubt."
Several witnesses testified at trial, including A.B., Fawn, Darlene, Trudeau,
Burkel, and Parshall. A.B. testified that, while alone with Parshall at Darlene's house,
Parshall penetrated her "front private" with both his fingers and tongue and penetrated
her "back private" with his fingers. A.B.'s testimony was consistent with, among other
things, Trudeau's testimony about A.B.'s statements during the forensic review, and
2
A.B. was seven years old at the time of trial.
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Fawn's testimony about A.B.'s statements on July 27, 2011. Parshall, however, denied
A.B.'s allegations.
The jury found Parshall guilty on both counts. Parshall thereafter filed a motion
for judgment of acquittal, which the court denied.
Parshall's sentencing hearing occurred on August 12, 2013. Parshall contended
that the jury was never asked to find that A.B. was under 12 years old, and that a 30-
year sentence imposed pursuant to 18 U.S.C. § 2241(c) would violate both his Fifth
Amendment and Eighth Amendment rights. The court disagreed with Parshall's
contentions and imposed concurrent sentences of 30 years for each count, followed
by a ten-year term of supervised release.
II. Discussion
On appeal, Parshall argues that (1) the government failed to prove his guilt
beyond a reasonable doubt, (2) his sentence violated his Fifth Amendment rights, (3)
his sentence violated his Eighth Amendment rights, and (4) the jury did not find
beyond a reasonable doubt that A.B. was under 12 years old at the time of the alleged
sexual abuse.
A. Sufficiency of the Evidence
This court "'will affirm a conviction against claims of insufficient evidence
unless the evidence, viewed in a light most favorable to the conviction, is such that no
reasonable jury could have found guilt beyond a reasonable doubt.'" United States v.
DeCoteau, 630 F.3d 1091, 1096 (8th Cir. 2011) (quoting United States v. Rojas, 520
F.3d 876, 881 (8th Cir. 2008)). We review a motion for judgment of acquittal de novo.
United States v. Espinosa, 585 F.3d 418, 423 (8th Cir. 2009). To prove aggravated
sexual abuse, the government needed to show that Parshall "(1) knowingly engaged
in a sexual act with a person under the age of 12, (2) is an Indian, and (3) the offense
occurred in Indian Country." DeCoteau, 630 F.3d at 1093 n.2 (citing 18 U.S.C. §§
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1153, 2241(c)). The term "sexual act" is defined under 18 U.S.C. § 2246(2) to include
oral sex and digital penetration.
Parshall bases his sufficiency argument on his contentions that there was "no
physical evidence" and that A.B. had not complained about Parshall before July 27,
2011. Parshall testified and denied A.B.'s allegations at trial.
As a threshold matter, however, it was within the jury's province to evaluate the
credibility of the witnesses' testimony. See United States v. Frausto, 616 F.3d 767,
772 (8th Cir. 2010) ("'The finder of fact may accept the parts of a witness's testimony
that it finds credible while rejecting any portion it finds implausible or unreliable.'"
(quoting United States v. Boyce, 564 F.3d 911, 916 (8th Cir. 2009))). Because the jury
was entitled to find A.B.'s and other witnesses' testimony credible, it was
correspondingly entitled to find Parshall's contradictory testimony not credible. United
States v. Ali, 616 F.3d 745, 755 (8th Cir. 2010) ("The jury has the responsibility of
resolving conflicts or contradictions in testimony . . . ."). "Such credibility findings are
'virtually unreviewable on appeal,'" Frausto, 616 F.3d at 772 (quoting Boyce, 564 F.3d
at 916), and this court "resolve[s] credibility issues in favor of the verdict." Id.
(citation omitted).
A.B. testified unequivocally at trial that Parshall went "[i]nside" her with "his
fingers and his tongue" on multiple occasions while the two were alone at Darlene's
house. Testimony from Fawn, Burkel, and Trudeau bolstered A.B.'s credibility. Their
testimony showed that A.B.'s story remained consistent over time and that A.B. was
thus not likely dissembling. Parshall points out the absence of physical evidence
supporting A.B.'s story, but neither is there physical evidence that contradicts her
accounts. Certainly, some other cases have stronger evidence, but that does not mean
the evidence present here is necessarily insufficient. After evaluating the witnesses'
testimony and weighing the available evidence, the jury chose to believe A.B.'s
testimony and to disbelieve Parshall's denials. It committed no error in doing so;
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indeed, "a victim's testimony alone is sufficient to persuade a reasonable jury of the
defendant's guilt beyond a reasonable doubt." United States v. Gabe, 237 F.3d 954,
961 (8th Cir. 2001) (affirming a conviction for abusive sexual contact based on the
testimony of the teenage victim).
B. Fifth Amendment
Title 18 U.S.C. § 2241(c) provides that "[w]hoever . . . knowingly engages in
a sexual act with another person who has not attained the age of 12 years . . . shall be
fined under this title and imprisoned for not less than 30 years or for life."
Consequently, because the jury found Parshall guilty of committing sexual acts with
A.B., the district court imposed the mandatory minimum 30-year sentence. Parshall
contends, however, that § 2241(c) violates the Fifth Amendment because it
"disproportionately affects Native Americans living on reservations, and because this
effect may have been intentional."
"[E]ven if a [facially] neutral law has a disproportionate adverse impact on a
racial minority, it is unconstitutional only if that effect can be traced to a
discriminatory purpose." United States v. Clary, 34 F.3d 709, 712 (8th Cir. 1994)
(emphasis added) (citation omitted). Even assuming—without in any way
deciding—that the law disproportionately impacts Native Americans, Parshall
provides no meaningful evidence that Congress intended to discriminate against
Native Americans when it passed 18 U.S.C. § 2241(c). He argues that Congress
should have been aware of the law's likely disproportionate impact on Native
Americans, which suggests, according to Parshall, "at least a possibility" of
discriminatory intent. Such assertions fall short of establishing the Congressional
intent necessary to show a violation of the Fifth Amendment. See id.; United States
v. DeMarce, 564 F.3d 989, 1000 (8th Cir. 2009) (holding that a 30-year sentence
imposed under 18 U.S.C. § 2241(c) did not violate a defendant-Native American's
equal protection rights).
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C. Eighth Amendment
Parshall argues that his mandatory minimum sentence was grossly
disproportionate to his offenses and therefore violated his Eighth Amendment rights.
In support, Parshall argues, among other things, that he was a first-time offender, that
he was abused as a child, that 18 U.S.C. § 2241(c) punishes child sex offenders more
severely than certain second-degree murderers are punished under other laws, and that
he committed the offenses during a difficult period in his life in which his fiancee had
recently died of a drug overdose and Parshall himself was recovering from a serious
drug addiction.
This court has held, however, that "'[a] sentence within statutory limits is
generally not subject to review under the Eighth Amendment.'" United States v.
Rodriguez-Ramos, 663 F.3d 356, 366 (8th Cir. 2011) (alteration in original) (quoting
United States v. Murphy, 899 F.2d 714, 719 (8th Cir. 1990)); see also United States
v. Collins, 340 F.3d 672, 679 (8th Cir. 2003) ("It is well settled that a sentence within
the range provided by statute is generally not reviewable by an appellate court.").
Indeed, "[t]his court has never held a sentence within the statutory range to violate the
Eighth Amendment." United States v. Vanhorn, 740 F.3d 1166, 1170 (8th Cir. 2014)
(citing United States v. Neadeau, 639 F.3d 453, 456 (8th Cir. 2011)). There is
insufficient reason to deviate from that precedent in this case. Parshall's mandatory
minimum sentence for repeated sexual abuse of a six-year-old child did not violate his
Eighth Amendment rights.
D. A.B.'s Age
The Supreme Court held in Alleyne v. United States, 133 S. Ct. 2151, 2163
(2013), that facts increasing a defendant's mandatory minimum sentence must be
submitted to a jury and found beyond a reasonable doubt. Neither side disputes that
A.B.'s age was a fact that increased the mandatory minimum sentence applicable to
Parshall. See 18 U.S.C. § 2241(c) (applying to victims who have "not attained the age
of 12 years"). Parshall contends, however, that because the verdict form referred to
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sexual abuse of a "minor," the jury was therefore "not asked to find beyond a
reasonable doubt that the alleged victim was under the age of twelve years old."
The verdict form asked whether Parshall was guilty "of the crime of aggravated
sexual abuse of a minor, as charged in Count 1" and in "Count 2 of the indictment."
The indictment, which the court specifically read to the jury, stated under each count
that the victim was "a child under the age of twelve years." More importantly, the
district court specifically instructed the jury at least twice, once before trial started,
and once at the end of trial, about the elements of the crimes charged in the
indictment—including that A.B. must be less than 12 years old. The court made clear
to the jury in both instances that every element of the crimes must each be established
"beyond a reasonable doubt." The jury is presumed to have followed these
instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing Richardson v.
Marsh, 481 U.S. 200, 211 (1987)). Parshall presents no convincing evidence to rebut
that presumption.
Moreover, Fawn, A.B., and A.B.'s grandmother all testified that A.B. was seven
years old at the time of trial. Parshall does not dispute that A.B. was less than 12 years
old at the time of the alleged abuse. Parshall also does not contend that the jury was
unable to evaluate A.B.'s age while she testified in court. Thus, even assuming the
verdict form's reference to "minor" was an error, it was harmless. See Neder v. United
States, 527 U.S. 1, 8 (1999) ("The error at issue here—a jury instruction that omits an
element of the offense—differs markedly from the constitutional violations we have
found to defy harmless-error review.").
III. Conclusion
We affirm the judgment of the district court.
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