The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL
Defendant, Roman White Calf, moves for a new trial on the grounds that the court did not give a limiting instruction to the jury on the proper use of evidence admitted over White Calf's hearsay objections. The United States resists White Calf's motion.
The indictment charges White Calf with sexual abuse of a minor. (Docket 1.) The central issue in the trial was whether White Calf reasonably believed that the victim was 16 years old or older at the time the sexual act occurred. Throughout the trial, White Calf objected to the admission of a witness's out-of-court statements pertaining to her disclosure of the victim's age to White Calf prior to the alleged sexual abuse. White Calf argued that such statements were hearsay. The court overruled the objections. The court found that the statements were offered for the non-hearsay purpose of putting White Calf on notice that the victim was under the age of 16. White Calf never asked for a limiting instruction on how the jury should consider the testimony. The jury found White Calf guilty of sexual abuse of a minor on July 23, 2009. (Docket 68.) This motion for a new trial followed.
"Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33. Under Rule 33, the court has the authority to "weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict." United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002). Nonetheless, the "court may grant a new trial under Rule 33 only if the evidence weighs so heavily against the verdict that a miscarriage of justice may have occurred." United States v. Starr, 533 F.3d 985, 999 (8th Cir. 2008) (internal quotations omitted). "Unless the  court ultimately determines that a miscarriage of justice will occur, the jury's verdict must be allowed to stand." Campos, 306 F.3d at 579.
I. Whether the Court Erred in Admitting the Testimony Over White Calf's Objections
White Calf's motion for a new trial appears to be premised in part on an argument that the statements were erroneously admitted over White Calf's objections. But the particular statements that White Calf believes were erroneously admitted over his objections are not identified with any particularity. Generally, the testimony is described to be "about what various witnesses purportedly told [White Calf] during the night's progression about the victim's age." (Defendant's Mem., Docket 78, at 2.)
" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c) (emphasis added). Thus, when testimony that repeats an out-of-court statement is not offered to prove the truth of the matter asserted in the statement, then the testimony is not hearsay.
The out-of-court statements were used in this case for the non-hearsay purpose of showing that White Calf had knowledge of the victim's actual age at the time of the incident. White Calf acknowledges that the statements at issue purportedly informed White Calf about the victim's actual age. (Defendant's Mem., Docket 78, at 2 ("The government presented critical testimony about what various witnesses purportedly told [White Calf] during the night's progression about the victim's age.").)
While the exact nature of the testimony is not clear because White Calf fails to identify any of the objectionable testimony with particularity, it appears that the testimony offered at trial was along the lines of, "I told Mr. White Calf that the victim was under sixteen." Thus, the testimony about the victim's age was not admitted in violation of the hearsay rule because the statements were admissible to show that White Calf had knowledge or notice of the victim's age by hearing those statements about the victim's age prior to the incident. See Czajka v. Hickman, 703 F.2d 317, 320 (8th Cir. 1983) ("[The] statements were not offered to prove the truth of the matter asserted, i.e., that [the plaintiff] hit [the third party]. Rather, they were offered to prove that the defendants had good cause to believe [that the plaintiff] was a risk to the security and safety of other prisoners[.]"); United States v. Conley, 523 F.2d 650, 654-55 (8th Cir. 1975) (noting that testimony was not hearsay when "offered to show that the statements were made in [the defendant's] presence and was relevant whether or not the statements were true or accurate"); see also Dunham v. Midwest Trucking & Transp., Inc., 2009 WL 3254468, at *5 (W.D. Mo. October 7, 2009) (rejecting argument that statement in CDL Drivers Manual that stated " 'If you must drive slowly, alert following drivers by turning on your emergency flashers if it is legal' " was hearsay because the statement was used to show that "[d]efendants had notice or knowledge that operating a truck and trailer at a slow speed without using emergency flashers could pose danger" (citations omitted)). Thus, it was not error to admit the statements into evidence.
II. Whether the Court Erred by Not Giving a Limiting Instruction
White Calf also argues that the court erred in failing to give an instruction to the jury on the limited use of the testimony. White Calf relies primarily on United States v. Lipscomb, 425 F.2d 226 (6th Cir. 1970), in arguing "that the failure of the trial judge to limit through cautionary instructions the jury's consideration of these extra-judicial statements" requires a new trial. Id. at 227. The United States responds by arguing that White Calf should have requested a limiting instruction when given the opportunity to do so.
Generally, it is not error for the court not to give a limiting instruction when defense counsel fails to request one. See Conley, 523 F.2d at 655 ("[W]e note the absence of a limiting instruction and the failure of defense counsel to request one. . . . [A]bsent a specific defense request, failure to instruct the jury of the limited purpose for which it could consider these out-of-court statements was not error." (citing United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973)). "In order to preserve the issue of whether a particular jury instruction should or should not have been issued, an attorney must make a timely objection, explaining the grounds upon which the instruction should or should not issue." United States v. Kirkie, 261 F.3d 761, 770 (8th Cir. 2001). Because White Calf did not request a limiting instruction, a new trial is appropriate only if it ...