United States v. Willard Fool Bull , 32 F. App'x 778 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-2944
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of South Dakota.
Willard Fool Bull, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 29, 2002
Filed: January 30, 2002
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Before HANSEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
After a jury found Willard Fool Bull guilty of three counts of aggravated sexual
abuse of a child in Indian country, in violation of 18 U.S.C. §§ 1153 and 2241(c), the
district court1 sentenced him to concurrent prison terms of 328 months and
supervised-release terms of 5 years. On appeal, Mr. Fool Bull argues that the court
erred by allowing five witnesses to testify under Federal Rule of Evidence 413,
because the alleged uncharged acts discussed were unlike the instant charges and
occurred many years ago; the testimony was prejudicial and confusing; and
alternative evidence was available, i.e., the victim’s testimony. Second, he raises a
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
sufficiency-of-the-evidence challenge, asserting that the victim lacked credibility, that
she refused to respond to many questions, that the government witnesses’ statements
were uncorroborated, and that the government offered no physical evidence. We
affirm.
“In a criminal case in which the defendant is accused of an offense of sexual
assault, evidence of the defendant’s commission of another offense or offenses of
sexual assault is admissible, and may be considered for its bearing on any matter to
which it is relevant.” Fed. R. Evid. 413(a). “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.
Evid. 403. Rule 413 reflects Congress’s decision to relax the standard of
admissibility for propensity evidence in sex offense cases, but the evidence remains
subject to the requirements of Rule 403. See United States v. Mound, 149 F.3d 799,
802-03 (8th Cir. 1998), cert. denied, 525 U.S. 1089 (1999).
The district court did not abuse its discretion in its application of the Rule 403
balancing test, as the evidence was not unfairly prejudicial. See United States v.
LeCompte, 131 F.3d 767, 769 (8th Cir. 1997) (standard of review). Mr. Fool Bull
does not dispute that the Rule 413 testimony, if true, was relevant, and it was
probative as it tended to prove his propensity to commit the charged crimes. Many
similarities exist between the events described by the Rule 413 witnesses and the
crimes charged against Mr. Fool Bull. Cf. id. (Fed. R. Evid. 414 evidence (evidence
of similar crimes in child-molestation cases) should not have been excluded because
uncharged sexual offenses committed against defendant’s niece were “substantially
similar” to those he was charged with committing against another niece). Further, we
have previously rejected the argument that even a twenty-year passage of time
precludes the admission of prior sexual-abuse incidents under Rule 413 or 414. See
United States v. Gabe, 237 F.3d 954, 959-60 (8th Cir. 2001).
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In arguing that alternative evidence was available, Mr. Fool Bull relies on Old
Chief v. United States, 519 U.S. 172, 182-83 (1997) (“If an alternative were found to
have substantially the same or greater probative value but a lower danger of unfair
prejudice, sound judicial discretion would discount the value of the item first offered
and exclude it if its discounted probative value were substantially outweighed by
unfairly prejudicial risk.”). His reliance is misplaced, however. See United States v.
Hill, 249 F.3d 707, 712 (8th Cir. 2001) (absent stipulation going to fact of felon
status, rationale for limited rule of Old Chief disappears, as defendant’s stipulation
cannot give government everything evidence could show). Further, the victim’s
testimony was no substitute for the Rule 413 witnesses’ propensity evidence. See id.
(unlike abstract status as felon, conventional evidence tells colorful story with
descriptive richness).
Viewed in the light most favorable to the verdict, the evidence was sufficient,
and Mr. Fool Bull’s sufficiency challenge fails because he is asking us to weigh
evidence and assess witness credibility. See United States v. Kirkie, 261 F.3d 761,
768 (8th Cir. 2001) (evidence in sexual-abuse prosecution was for jury,
notwithstanding discrepancies in victim’s testimony); United States v. Stroh, 176
F.3d 439, 440 (8th Cir. 1999) (this court reviews sufficiency of evidence in light most
favorable to verdict and may neither weigh evidence nor assess witness credibility).
Even if the victim had been the sole witness, it would have been proper for the jury
to credit her testimony and to convict Mr. Fool Bull. See Gabe, 237 F.3d at 961
(victim’s testimony alone is sufficient to persuade reasonable jury of defendant’s
guilt).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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