United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
convicted defendant James Robert Dowty of second degree
murder and discharge of a firearm during a crime of violence.
(Docket 72). Defendant filed post-trial motions. (Dockets 101
& 103). One motion seeks a judgment of acquittal under
Rule 29(c) of the Federal Rules of Criminal Procedure or, in
the alternative, a new trial under Rule 33(a). (Docket 101).
The other motion requests a new trial pursuant to Rule 33(a)
on additional grounds. (Docket 103).
court limits its recitation to those facts necessary to
resolve defendant's pending motions. In the subsequent
legal analysis, the court includes additional facts as
needed. The court relies primarily on the trial transcripts,
(Dockets 87-91),  as well as its recollection of the
evidence presented at trial.
the early morning hours of July 20, 2016, 13-year-old T.C.
was shot and killed while walking along a street in Pine
Ridge, South Dakota. She was walking with three friends:
R.O., age 15; Donovan Youngman, age 19; and A.R.C., age
testified at trial. She stated shortly after midnight she
drank alcohol with T.C., A.R.C. and Youngman. (Docket 88 at
pp. 6-11). T.C. and R.O. smoked marijuana. Id.
Mucinex and Robitussin were in R.O.'s possession, and she
consumed some of the Robitussin. Id. at pp. 17, 43.
R.O. testified the four of them left the last location at
which they drank and began walking along a street in Pine
Ridge. Id. at pp. 15-19. On the general lighting of
the area, R.O. testified, “[i]t wasn't pitch black.
You could see because of the street lights.”
Id. at pp. 18-19. As the group walked, R.O. observed
someone walking ahead of them in their direction.
Id. at pp. 19-21. The group made a turn by cutting a
corner, and the person R.O. noticed turned that direction as
well and continued ahead of the group. Id. R.O.
noticed the person wore red shoes. Id. at p. 41.
testified the person she noticed was James Dowty.
Id. at pp. 20-23. She explained she knew it was
defendant because they are related and she had seen him
around town. Id. She testified she “saw his
face.” Id. at p. 21. T.C. asked R.O. whether
the person was defendant's brother, “Joe Joe,
” someone they drank with on a prior occasion, but R.O.
told her the person was defendant and not Joe Joe.
Id. at pp. 21-23. R.O. testified she knew the
difference between defendant and Joe Joe, specifying Joe Joe
is smaller than defendant. Id. at p. 40. She stated
at trial she was “certain” it was defendant and
not Joe Joe. Id. at p. 67. R.O. did not provide a
clear in-court identification of defendant. Id. at
pp. 24-25. But she did testify that a photograph of defendant
admitted into evidence was him, the person she witnessed
shoot T.C. Id. at pp. 28-31.
to R.O., Youngman and A.R.C. skipped rocks in defendant's
direction without hitting him. Id. at pp. 22-23, 30.
R.O. testified defendant turned around once, facing the
group, then put his back to them before turning around again,
holding out a gun and firing a shot at them that hit T.C.
Id. at pp. 28-31. R.O. stated she was
“certain” defendant is the person who shot T.C.
and that she recognized him before he pulled the trigger.
Id. at pp. 40-41. R.O. testified defendant continued
walking away after he fired the gun. Id. at p. 37.
Defense counsel cross-examined R.O. after the
government's direct examination and after the redirect
examination. Id. at pp. 41-61, 68-69.
also testified at trial, and his recollection mirrored
R.O.'s. Before the gunshot, he noticed the shooter's
“[r]ed and white” shoes. Id. at p. 77.
Youngman testified A.R.C. threw a “regular”-sized
rock in the shooter's direction without hitting him.
Id. at pp. 77-78. Before the shooter walked ahead of
the group, when they initially crossed paths with him,
Youngman recognized it was defendant. Id. at pp.
78-79. Youngman stated he had seen defendant before in Pine
Ridge. Id. at p. 79. According to Youngman's
testimony, defendant turned around twice toward the group and
on the second time he fired a gun hitting T.C. Id.
at pp. 80-83. Youngman testified the street lights were on
when he saw defendant. Id. at p. 106. Defendant then
continued walking away from the group. Id. at pp.
84-86. Youngman identified defendant in the courtroom as the
person he saw shoot T.C. Id. at pp. 89-90. As with
R.O., defense counsel cross-examined Youngman after the
government's direct and redirect examinations.
Id. at pp. 92-101, 109-110.
provided testimony at trial in line with R.O. and Youngman.
He observed the shooter's “red shoes[.]”
Id. at p. 115. Prior to any shooting, as the group
initially passed by the shooter, A.R.C. recognized the person
as defendant. Id. at p. 116. A.R.C. admitted he
threw some rocks near defendant and they
“[p]ossibly” hit him. Id. at p. 117.
When defendant was in front of the group, A.R.C. observed
defendant turn around twice, firing a gunshot the second time
that hit T.C. Id. at pp. 117-19. A.R.C. identified
defendant in court as the person he witnessed shoot T.C.
Id. at p. 141. Defense counsel cross-examined A.R.C.
Id. at pp. 126-134.
agents testified about their investigation. Federal Bureau of
Investigation Special Agent Matthew Thatcher testified that
during his investigation he examined defendant's bedroom
and discovered red shoes. Id. at p. 217. Special
Agent Thatcher seized the shoes and they were admitted into
evidence at trial. (Docket 89 at pp. 141-43); (Exhibit 65).
Bureau of Indian Affairs Special Agent Theodore Thayer
testified about measurements taken of the area where T.C. was
shot. (Docket 89 at pp. 108-110). Based on those
measurements, there was a distance of 226 feet and six inches
between a shell casing law enforcement discovered on the
street and the estimated location where T.C. was hit.
Id.; (Exhibit 7).
forensic pathologist who conducted T.C.'s autopsy, Donald
Habbe, M.D., testified. He observed a gunshot wound to
T.C.'s abdomen. (Docket 89 at p. 197). Dr. Habbe
testified T.C.'s significant injury was the gunshot and
the damage it did to her aorta and spinal column caused her
death. Id. at pp. 197, 202-04. According to Dr.
Habbe, T.C.'s injury was consistent with being shot from
50 to 70 yards. Id. at p. 208.
defense called Paul Michel, O.D., who testified about the eye
as a sensory organ and factors influencing eyewitness
identification. (Docket 90 at p. 47). Factoring in lighting,
distance and movement in a hypothetical situation similar to
the setting where T.C. was shot, Dr. Michel testified
“identification to the exclusion of all other persons .
. . couldn't happen.” Id. at pp. 62-63.
government's rebuttal case, Jesse Brewer, an Officer with
the Oglala Sioux Tribe Department of Public Safety, was
called to the stand. During Officer Brewer's testimony,
the court admitted into evidence footage from his body camera
of the street area when he reported to the scene where T.C.
was shot. Id. at pp. 79-82; (Exhibit 88). He
testified the recording was not enhanced and accurately
showed the street as he saw it that night. (Docket 90 at pp.
moved for a judgment of an acquittal at the conclusion of the
government's case-in-chief and again after the
government's rebuttal. (Docket 90 at pp. 2-3, 93). The
court denied both motions. Id. Now defendant renews
his Rule 29 motion. (Dockets 101 & 102 at pp. 7-8). He
specifically argues the evidence was insufficient to ...