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United States v. Stoney End of Horn

United States Court of Appeals, Eighth Circuit

July 15, 2016

United States of America, Plaintiff-Appellee,
v.
Stoney End of Horn, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Stoney End of Horn, Defendant-Appellant.

          Submitted: February 12, 2016

         Appeals from United States District Court for the District of South Dakota - Aberdeen

          Before SMITH and COLLOTON, Circuit Judges, and GRITZNER, [1] District Judge.

          COLLOTON, Circuit Judge.

         Stoney 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[2] 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.

         I.

         The 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.

         During 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.

         Some 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.

         Later 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.

         Brave 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 the assault.

         The 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.

         S.N.H. 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 facility.

         A grand 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 ...


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