Submitted: February 12, 2016
from United States District Court for the District of South
Dakota - Aberdeen
SMITH and COLLOTON, Circuit Judges, and GRITZNER,  District
COLLOTON, Circuit Judge.
End of Horn was convicted by a jury on four counts of sexual
abuse of a minor and one count of assault resulting in
serious bodily injury, all occurring in Indian country. The
district court sentenced End of Horn to concurrent
sentences of 293 months' imprisonment for each count of
sexual abuse and another concurrent sentence of 120
months' imprisonment for the assault. End of Horn appeals
his convictions and sentences. We affirm.
evidence on the assault charge, which we recount in the light
most favorable to the verdict, concerned an incident that
occurred early in the morning on September 27, 2008. The
night before, End of Horn was out drinking with his
girlfriend, Pauline Brave Crow, in Mobridge, South Dakota,
and he agreed to give his cousin (Robert End of Horn) and two
of Robert's friends (Quinton Fernandez and Elizabeth
Mellette) a ride to Wakpala in Brave Crow's car.
the drive, End of Horn and Brave Crow got into an argument.
The discussion became heated, and Brave Crow attempted to
jump out of the moving vehicle. End of Horn stopped the car
and continued to argue with Brave Crow. End of Horn hit Brave
Crow in the face with his open palm, and the two got out of
the car. As the argument carried on, Robert and Fernandez
tried unsuccessfully to intervene, and the passengers
eventually decided to walk to Wakpala rather than wait longer
for a ride. They left Brave Crow and End of Horn at the side
of the road.
time later, Jackie Little Dog, a childhood friend of Brave
Crow, encountered Brave Crow's vehicle on the side of the
road to Wakpala. Little Dog testified that when she stopped
behind the parked car, she saw End of Horn hitting Brave
Crow's head and face. Little Dog left because she was
afraid of End of Horn. She did not report the incident to
authorities, but later told one of Brave Crow's daughters
what she had seen.
in the morning of September 27, Officer Tracy Whitaker of the
National Park Service was dispatched to the residence of End
of Horn's father in Wakpala in response to an assault
report. There, she saw an ambulance crew treating Brave Crow
for facial injuries. Whitaker asked End of Horn how Brave
Crow was hurt, and End of Horn said that he and Brave Crow
had been attacked by hitchhikers. Whitaker attempted to
locate the site of the alleged attack, but could not find
evidence of an assault by hitchhikers.
Crow suffered a serious fracture, known as a LeFort III
fracture, in the bones of her face. She sustained broken
bones in her upper jaw and face, facial swelling and bruising
on the left side of her face, and bruising under both eyes.
Brave Crow was "very, very quiet" when interviewed,
and she did not identify her assailant when hospitalized.
Brave Crow's injuries required multiple surgeries. Her
health deteriorated, and she eventually died on June 25,
2010, as a result of complications from injuries caused by
evidence concerning sexual abuse centered on the testimony of
S.N.H., a relative of Brave Crow and a twelve-year-old minor
during the relevant period. S.N.H. lived with End of Horn and
Brave Crow in McLaughlin, South Dakota. She testified about
an incident that occurred when Brave Crow was in the hospital
for a stroke in February 2010. According to S.N.H., she woke
up to discover End of Horn rubbing her vagina. End of Horn
then pulled up her shirt and bra and licked her nipples
before inserting his penis into her vagina.
also testified that End of Horn engaged in vaginal
intercourse with her once a month from April through July
2010 while they were staying at the house of End of
Horn's father in Wakpala. The sexual contact eventually
ended. S.N.H. later reported the sexual abuse in a
questionnaire that she filled out at a youth treatment
jury charged End of Horn with second-degree murder and
assault resulting in serious bodily injury based on the
attack on Brave Crow. A separate grand jury charged him with
multiple counts of sexual abuse of a minor arising from his
contact with S.N.H. By agreement of the parties, the cases
were consolidated for trial. A jury convicted End of Horn of
assault, murder, and four counts of sexual abuse. The
district court, relying on Ball v. United States,
140 U.S. 118 (1891), and Merrill v. United States,
599 F.2d 240, 242 & n.4 (8th Cir. 1979) (per curiam),
concluded that the second-degree murder charge required proof
that Brave Crow's death occurred within a year and a day
of the assault. Because the ...