United States v. Aungie

4 F.4th 638

UNITED STATES of America, Plaintiff - Appellee

v.Jeremy AUNGIE, Defendant - Appellant

No. 19-2846

United States Court of Appeals, Eighth Circuit.

Submitted: October 22, 2020

Filed: July 12, 2021

Counsel who presented argument on behalf of the appellant and appeared on the brief was Thomas James Von Wald, of Sioux Falls, SD.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Jeffrey C. Clapper, AUSA, of Sioux Falls, SD.

Before COLLOTON, GRASZ, and STRAS, Circuit Judges.

GRASZ, Circuit Judge.

A jury convicted Jeremy Aungie of two counts of aggravated sexual abuse of a child under 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(A). The district court¹ sentenced Aungie to concurrent terms of 420-months imprisonment and five years of supervised release for each count. Aungie raises five issues on appeal, arguing the district court erred by (1) denying his motion for judgment of acquittal for insufficient evidence, (2) denying his motions to exclude evidence of prior drug and alcohol use, (3) excluding expert testimony and his request for a Daubert hearing,² (4) excluding text messages, and (5) excluding evidence of the victim's alleged motive to lie. We affirm.

I. Background

Aungie and his two children, a boy (J.A.) and a girl (A.A.), lived in a three-bedroom home on the Yankton Sioux Indian Reservation with nine other family members, including Aungie's parents, his sister, his brother, and his brother's five young children. Aungie and his children shared one bedroom. A.A. and J.A.’s mother left the home when the children were two and three years old. They were allowed visitation with their mother one day each week but, generally, saw her less frequently. A.A. felt she had a close, trusting relationship with her mother, brother, and several friends.

In spring 2018, when A.A. was thirteen years old, her grades deteriorated, she began cutting herself, and she was suspended from school for fighting. A.A.’s grandmother, who was also her guardian, punished A.A. by smashing her phone. After her suspension, A.A. decided to leave home. A.A. packed items in her school backpack and went to her mother, who was staying at a hotel near the school. Within days, A.A. disclosed to her mother that her father had sexually abused her for years.

At trial, A.A. described incidents when Aungie struck and sexually assaulted her, generally while he was intoxicated. The sexual assaults began when she was eight or nine. Aungie woke A.A. from sleeping by touching her underneath her underwear, pulling her hair and telling her to lay down when she resisted. As time went on, Aungie would lock the bedroom door, tell A.A. what to do, and hit her when she did not comply with his commands or resisted sexual assaults. A.A. said she would sometimes escape by saying she had to use the bathroom or by staying with her grandmother. A.A. testified she was too scared to tell anyone because she feared her family would be mad at her, and Aungie would go to jail or kill her and himself, as he had threatened. She explicitly denied accusing her father of committing these acts only because she was angry about discipline or because she wanted to live with her mother.

II. Discussion

A. Judgment of Acquittal

Aungie argues the district court erred by denying his motion for judgment of acquittal because his convictions for sexually assaulting his daughter were not supported by corroborating evidence. "We review de novo the denial of a motion for judgment of acquittal." United States v. Golding , 972 F.3d 1002, 1005 (8th Cir. 2020) (quoting United States v. Cook , 603 F.3d 434, 437 (8th Cir. 2010) ). "We apply the same standard of review to the district court's ruling on a motion for judgment of acquittal as we do to a sufficiency of the evidence challenge." Id. (quoting same). Accordingly, "[t]his court views the entire record in the light most favorable to the government, resolves all evidentiary conflicts accordingly, and accepts all reasonable inferences supporting the jury's verdict." United States v. Benton , 890 F.3d 697, 708 (8th Cir. 2018) (quoting United States v. Boesen , 491 F.3d 852, 856 (8th Cir. 2007) ). We will affirm the conviction if after "taking all facts in the light most favorable to the verdict, a reasonable juror could have found the defendant guilty of the charged conduct beyond a reasonable doubt." United States v. Frommelt , 971 F.3d 823, 827 (8th Cir. 2020) (quoting United States v. Sainz Navarrete , 955 F.3d 713, 718 (8th Cir. 2020) ).

Aungie contends A.A.’s testimony was vague and without support. "However, ‘[i]t is for the jury, not a reviewing court, to evaluate the credibility of witnesses and to weigh their testimony.’ " United States v. Never Misses A Shot , 781 F.3d 1017, 1025 (8th Cir. 2015) (alteration in original) (quoting United States v. Mallen , 843 F.2d 1096, 1099 (8th Cir. 1988) ). The jury serves as "the final arbiter of the witnesses’ credibility, and we will not disturb that assessment." Id. at 1026 (quoting United States v. Listman , 636 F.3d 425, 430 (8th Cir. 2011) ). Moreover, "[i]t is well established that the uncorroborated testimony of a single witness may be sufficient to sustain a conviction." United States v. L.B.G. , 131 F.3d 1276, 1278 (8th Cir. 1997) (quoting United States v. Dodge , 538 F.2d 770, 783 (8th Cir. 1976) ); see 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.").

Here, although A.A.’s testimony was, at times, imprecise, she provided enough detail about the who, what, when, where, and how to support the sexual assault convictions. Specifically, A.A. testified Aungie touched her "middle part," clarifying it is "the place I pee out of," and "stuck his middle part," which is "the place he pees out of" inside her "butt" and "between [her] legs" inside her middle part. A.A. testified that her father first touched her "middle part" when she was eight or nine years old, and that he sexually assaulted her when she was thirteen years old. A.A. was also able to describe potential effects from the sexual abuse such as her fear of getting pregnant. Finally, she provided her reasoning for disclosing the sexual and physical abuse when she did. Taking A.A.’s testimony in the light most favorable to the verdict, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence to support the jury's verdict, there is sufficient evidence to support Aungie's conviction.

B. Evidentiary Rulings

"We review evidentiary rulings for abuse of discretion." United States v. Keys , 918 F.3d 982, 985 (8th Cir. 2019). "We reverse only ‘if the district court's evidentiary rulings constitute a clear and prejudicial abuse of discretion.’ " Id. (quoting Never Misses A Shot , 781 F.3d at 1027 ). "[O]nly when an improper evidentiary ruling affected the defendant's substantial rights or had more than a slight influence on the verdict" will we reverse. United States v. Johnson , 860 F.3d 1133, 1139 (8th Cir. 2017) (quoting United States v. Picardi , 739 F.3d 1118, 1124 (8th Cir. 2014) ). "We will not reverse a harmless error." Id.

1. Aungie's Prior Bad Acts

Aungie argues the district court erred by allowing testimony about his drug and alcohol use, as well as violent conduct. The government contends testimony about Aungie's intoxication and violence against A.A. and other family members was relevant to A.A.’s fear of reporting the abuse. We review a trial court's admission of Rule 404(b) evidence for abuse of discretion "and will reverse only when such evidence clearly had no bearing on the issues in the case and was introduced solely to prove the defendant's propensity to commit criminal acts." United States v. Benitez , 531 F.3d 711, 716 (8th Cir. 2008).

Rule 404(b)(1) provides "[e]vidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." But "evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). Rule 404(b) is a rule "of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination." United States v. LaFontaine , 847 F.3d 974, 981 (8th Cir. 2017) (quoting United States v. Contreras , 816 F.3d 502, 511 (8th Cir. 2016) ). To determine whether the evidence was properly admitted, this court uses a four-part test evaluating whether "(1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value." Id. (quoting Contreras , 816 F.3d at 511 ).

Before trial, the district court excluded some evidence of Aungie's violent or drug-related conduct unknown to A.A.; however, the district court indicated it would allow such evidence to the extent A.A. testified Aungie was drunk or high during commission of the sexual assaults, how she knew he was drunk or high, or the conduct was connected to A.A. being afraid of him. At trial, A.A. testified about specific instances when Aungie sexually abused her or physically assaulted her and others in the family while he was intoxicated. A.A. also expressed fear of reporting abuse due to Aungie's threat of additional violence against her. A.A. testified to instances of violence, including instances when Aungie covered her with blankets, struck her face, pulled her hair, and knuckle-punched her in the back during sexual assaults.

Physical abuse of the victim and close family members may be relevant by "provid[ing] a context for the sexual abuse and a cogent explanation for ... failure to report the sexual abuse" earlier....