United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2053
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Primus James Demery, *
*
Appellant. *
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Submitted: December 14, 2010
Filed: May 27, 2011
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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Primus James Demery was charged in a three-count indictment and convicted
by a jury of abusive sexual contact in Indian country, sexual abuse in Indian country,
and assault resulting in serious bodily injury in Indian country. The district court
sentenced Demery to a term of 180 months’ imprisonment on each of Counts One and
Two, and 120 months’ imprisonment on Count Three, to be served concurrently. The
court also ordered a term of fifteen years of supervised release on each of Counts One
and Two, and three years on Count Three, also to be served concurrently.
Demery appeals his conviction and sentence. We affirm the convictions and
the sentences imposed on Counts Two and Three, but vacate the term of imprisonment
imposed for Count One and remand for the limited purpose of resentencing on that
count.
I.
We recite the facts in the light most favorable to the verdict. Early in the
morning on April 18, 2009, Demery, an Indian, was drinking and socializing at his
sister’s house on the Turtle Mountain Indian Reservation. Demery left by himself
sometime before sunrise, and he went to Tia Morin’s residence next door. Once
inside, he entered Morin’s bedroom, where she was sleeping. He touched her breasts
and genitals, first over her clothing, and then under her clothing. When Morin opened
her eyes and looked at him, he forcefully inserted his fist into her vagina. Demery
then left the residence.
Demery’s assault caused Morin to bleed uncontrollably. She called her friend
Kathy Wilson, and Wilson drove Morin to a hospital. Morin underwent emergency
surgery to repair lacerations to her vagina.
A grand jury returned a three-count indictment against Demery. Count One
charged abusive sexual contact with a person who was physically incapable of
declining participation in, or communicating an unwillingness to engage in, the sexual
contact, in violation of 18 U.S.C. §§ 1153 and 2244(a)(2). Count Two charged sexual
abuse of a person who was incapable of appraising the nature of the conduct, or who
was physically incapable of declining participation in, or communicating an
unwillingness to engage in, the sexual act, in violation of 18 U.S.C. §§ 1153 and
2242(a)(A)-(B). Count Three charged assault resulting in serious bodily injury, in
violation of 18 U.S.C. §§ 113(a)(6) and 1153. Following a two-day trial, a jury found
Demery guilty on all counts, and the court later imposed sentence.
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II.
A.
Demery first challenges the sufficiency of the evidence to support his
conviction for sexual abuse. The statute under which Demery was convicted, 18
U.S.C. § 2242(2)(A)-(B), proscribes “engag[ing] in a sexual act with another person”
when the other person is “incapable of appraising the nature of the conduct” or
“physically incapable of declining participation in, or communicating unwillingness
to engage in, that sexual act.” The definition of “sexual act” includes “the penetration,
however slight, of the . . . genital opening of another by a hand or finger.” 18 U.S.C.
§ 2246(2)(C).
Demery asserts that the government failed to prove that Morin was “incapable,”
for purposes of § 2242(2)(A)-(B), at the moment of penetration. “We review the
sufficiency of the evidence de novo, viewing the evidence in the light most favorable
to the verdict, and we will reverse only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt.” United States v. McCraney, 612 F.3d
1057, 1063 (8th Cir. 2010).
Demery asserts that Morin’s own testimony shows that she was neither asleep
nor intoxicated when he committed the sexual act, and that the government thus failed
to prove that she was incapable of declining participation or communicating
unwillingness. Morin testified that she was awakened on the morning of the attack
by Demery touching her breasts and genitals over her clothing. After she woke up,
Demery began touching her under her clothes. She then opened her eyes and looked
at Demery, and when she did so, he penetrated her. Morin also testified that although
she had been drinking before she went to sleep on the morning of the attack, she did
not really feel intoxicated.
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We considered an argument similar to Demery’s in United States v. Barrett, 937
F.2d 1346 (8th Cir. 1991). In that case, the victim testified that she went to sleep
around midnight. Id. at 1348. She was “very tired because of the hour and her
previous day’s activities.” Id. She “vaguely remember[ed] someone pulling off her
jeans and underwear,” and once she was “fully awake,” she realized that the defendant
was penetrating her. Id. We held that the jury reasonably could have found that the
victim, at the time of penetration, was physically incapable of declining participation
in, or communicating unwillingness to engage in, the sexual act. Id.
As in Barrett, a rational jury could find beyond a reasonable doubt that Demery
is guilty of sexual abuse. Morin was sufficiently awake before Demery penetrated her
to realize that Demery was touching her and to open her eyes, but this evidence does
not foreclose a finding of guilt. Morin testified that the attack “was very fast,” and
that when she opened her eyes and looked at Demery, she “didn’t get to do anything”
before he attacked her. The testimony of two other witnesses further supports a
finding that Morin was “incapable” when Demery penetrated her. The physician who
treated Morin at the hospital testified that Morin said that she awoke to a man
penetrating her, and one of Demery’s cellmates testified that he overheard Demery
admit to penetrating a person named Tia while she was sleeping. Based on this
evidence, we conclude that a reasonable jury could find that Morin, like the victim in
Barrett, was not “fully awake” until after penetration occurred, and that she was
therefore incapable of declining participation or communicating unwillingness to
engage in the sexual act.
B.
Demery next argues that he is entitled to a new trial because of erroneous
evidentiary rulings by the district court. He first contends that the district court erred
by admitting testimony of FBI agent Ryan O’Neil about an out-of-court statement
made by Alfreda Longie, a witness for the prosecution. Longie, Demery’s girlfriend,
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testified that while she and Demery were at his sister’s house on the morning of the
assault, Demery left without saying anything to anyone. The prosecutor asked Longie
whether she previously told O’Neil that when Demery left, he said he was going to
“Tia’s.” Longie said she had not made such a statement to O’Neil. The government
later called O’Neil, who testified that Longie told him that when Demery left the
house, he said “I’m going to Tia’s.”
Demery’s only objection at trial to O’Neil’s testimony about Longie’s statement
was based on hearsay. T. Tr. 255. The evidence was not offered for the truth of the
matter asserted, see Fed. R. Evid. 801(c), so the hearsay objection was properly
overruled. Demery raises a different contention on appeal, so we review it only for
plain error. See United States v. Bell, 624 F.3d 803, 808 (7th Cir. 2010); Fed. R. Evid.
103(a)(1). To establish plain error, Demery must show an obvious error that affected
his substantial rights, and that the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 736
(1993).
Extrinsic evidence of prior inconsistent statements is admissible under Rules
607 and 613(b), subject to a Rule 403 balancing test. See United States v. Durham,
470 F.3d 727, 731-32 (8th Cir. 2006). Demery contends that O’Neil’s testimony
should have been excluded under Federal Rule of Evidence 403, because its probative
value was substantially outweighed by the danger of unfair prejudice. The potential
for unfair prejudice in this situation is that a jury might misuse evidence of the
witness’s prior inconsistent out-of-court statement, which is admissible only to
impeach the witness’s in-court testimony, as substantive evidence of guilt. The
balancing test of Rule 403 serves to prevent a party from calling a witness, knowing
her to be adverse, simply to admit under the guise of impeachment an out-of-court
statement that implicates the defendant. See United States v. Buffalo, 358 F.3d 519,
522-23 (8th Cir. 2004).
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Despite this concern about potential abuse, however, our court has said that “the
government’s motive in eliciting testimony is irrelevant,” and we conduct the Rule
403 analysis on an objective basis. United States v. Logan, 121 F.3d 1172, 1175 (8th
Cir. 1997). The probative value of the impeachment evidence in this scenario
typically is to raise doubts regarding the truthfulness of both the witness’s trial
testimony and her out-of-court statement, and thereby to suggest that the witness is not
a credible person. Id.
The district court’s decision to admit O’Neil’s testimony was not an obvious
error under Rule 403. Longie was with Demery shortly before and after the assault
on Morin, and she had relevant testimony to give apart from Demery’s statement
about where he was going when he left the sister’s house. In her trial testimony,
however, she not only denied that Demery said he was destined for “Tia’s” house
when he departed, but also said that she observed no blood on Demery’s boots or
clothing when she saw Demery at home after the assault. Given this account, which
supported the defense case, O’Neil’s testimony about Longie’s prior inconsistent
statement had probative value in questioning her credibility. See Durham, 470 F.3d
at 732. The danger of unfair prejudice might have been lessened by a limiting
instruction about the impeachment evidence, but the defense did not request one. The
government’s reference to O’Neil’s testimony in final argument focused on Longie’s
credibility, including her potential motive for protecting Demery. The record thus
does not show that the government abused the opportunity to introduce impeachment
evidence regarding Longie’s testimony, and we see no plain error warranting relief.
Demery next asserts that the district court abused its discretion by allowing
Kathy Wilson to testify that Morin identified Demery as her attacker during the drive
to the hospital. The government responds that Wilson’s testimony was properly
admitted under the excited utterance exception to the hearsay rule, Federal Rule of
Evidence 803(2). We review for abuse of discretion. United States v. Koch, 625 F.3d
470, 479 (8th Cir. 2010).
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Hearsay is not admissible unless there is an applicable exception to the bar on
hearsay evidence. Fed. R. Evid. 801(c), 802. Under Rule 803(2), a statement
“relating to a startling event or condition and made while the declarant was under the
stress of excitement caused by the event or condition” is admissible as an excited
utterance. “The rationale of the excited utterance exception is that the stress of
nervous excitement or physical shock stills the reflective faculties, thus removing an
impediment to truthfulness.” United States v. DeMarce, 564 F.3d 989, 997 (8th Cir.
2009) (internal quotations omitted). In determining whether a declarant was under the
stress of excitement caused by a startling event when she made a statement, “we
consider the lapse of time between the startling event and the statement, whether the
statement was made in response to an inquiry, the age of the declarant, the physical
and mental condition of the declarant, the characteristics of the event, and the subject
matter of the statement.” United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007)
(internal quotation omitted). “We also examine whether the declarant’s stress or
excitement was continuous from the time of the event until the time of the
statements.” Id.
Demery contends that Morin was no longer under the stress of excitement
caused by the attack when she told Wilson that Demery was her attacker. He argues
that Morin’s initial refusal to identify her attacker, her explanation to Wilson that she
would not do so because she was afraid for her life, and the fact that she identified
Demery only in response to Wilson’s repeated questioning show that she had time and
ability to reflect. He also points to the facts that Morin is an adult, and that the
disputed statement was made thirty to sixty minutes after the attack. The government
responds that in light of the violent sexual assault endured by Morin just as she was
waking up, the serious injuries Morin suffered, Morin’s testimony that she was in pain
and in shock after the attack, and Wilson’s testimony that Morin was “freaking out”
during the drive to the hospital, the district court properly admitted Wilson’s
testimony.
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Without resolving the evidentiary dispute, we conclude that any error was
harmless, because Wilson’s testimony was largely cumulative of other evidence.
Morin testified that on the way to the hospital, she told Wilson that Demery was her
attacker. Morin’s sister Shasheen and her friend Isaiah Aiken both testified that
before Morin left for the hospital, she told them that Demery had raped her. This
evidence is unchallenged on appeal. We think it unlikely that the addition of Wilson
as a third person who heard Morin inculpate Demery had a substantial effect on the
jury’s verdict. Accordingly, the court’s ruling is not a basis for reversal. See
Kotteakos v. United States, 328 U.S. 750, 764-65 (1946); United States v.
Marrowbone, 211 F.3d 452, 455-56 (8th Cir. 2000).
C.
Demery also raises three challenges to his sentence. Demery first argues that
the district court erred by imposing a sentence longer than the statutory maximum on
Demery’s conviction for abusive sexual contact. The district court sentenced Demery
to 15 years’ imprisonment on that conviction, but the government concedes that the
statutory maximum term is 3 years. See 18 U.S.C. § 2244(a)(2). We therefore vacate
the sentence on Count One.
Demery next argues that his sentence violates the Double Jeopardy Clause of
the Fifth Amendment, which provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The
Clause forbids both successive prosecutions and successive punishments, United
States v. Dixon, 509 U.S. 688, 696 (1993), and a court may not alter the terms of a
sentence once the defendant has begun to serve it. Johnson v. Mabry, 602 F.2d 167,
170 (8th Cir. 1979). Demery claims that the district court’s written judgment, which
issued after Demery began serving his sentence, includes conditions of supervised
release that the court did not mention in the oral pronouncement of Demery’s
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sentence, and that the written judgment thus altered his sentence in violation of the
Double Jeopardy Clause.
We conclude that the written judgment is not inconsistent with the oral
pronouncement of Demery’s sentence. The disputed supervised release conditions are
thirteen “standard” conditions listed in USSG § 5D1.3(c). At sentencing, the district
court told Demery that while on supervised release, he will “be required to follow
what are called standard conditions of supervision.” S. Tr. 36. The court then
provided a general overview of the standard conditions, telling Demery that
“[b]asically those standard conditions of supervision require that you live a law-
abiding lifestyle,” and the court listed some of the specific requirements included in
the standard conditions. S. Tr. 36-37. The court also told Demery that “all of those
standard conditions of supervision are spelled out in the judgment that I’ll sign . . .
probably tomorrow, at the latest,” and that Demery would receive a copy of it. S. Tr.
37-38. Demery never objected to the district court’s explanation of the standard
conditions, never asked the district court for clarification or elaboration, and never
objected to the standard conditions being “spelled out” in the written judgment to
issue the next day. In our view, the detailed statement of the standard conditions
included in the written judgment did not alter the court’s oral pronouncement that it
had imposed the standard conditions. Demery’s sentence thus does not violate the
Double Jeopardy Clause. See United States v. Little Bear, No. 10-1782, 2011 WL
668115, at *2 (8th Cir. Feb. 25, 2011) (per curiam) (unpublished).
Finally, Demery challenges one of the conditions of his supervised release. At
sentencing, the district court announced that while on supervised release, Demery
would be required to “participate in any form of psychological, psychiatric counseling
or sex offender treatment programming and counseling that the probation officer feels
is reasonable and warranted.” The written judgment provided as follows: “The
Defendant shall participate in psychological/psychiatric counseling and/or a sex
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offender program, which may include inpatient treatment as approved by the
probation officer.”
Demery contends that the district court improperly delegated a judicial function
to the probation officer by leaving to that officer’s discretion whether Demery must
undergo counseling. We have considered several cases in which a district court has
delegated some measure of authority to a probation officer to make decisions about
a defendant’s mental health counseling during a term of supervised release. Our
decisions in this area establish that as long as the district court does not indicate
affirmatively that it has disclaimed ultimate authority over the condition of supervised
release, limited delegation to a probation officer is permissible. “Implicit in these
decisions is an assumption that . . . the probation officer will consult with the court
about the matter or, at a minimum, the court will entertain a motion from the
defendant for reconsideration of the probation officer’s initial decision.” United
States v. Wynn, 553 F.3d 1114, 1120 (8th Cir. 2009). Unlike in United States v. Kent,
209 F.3d 1073 (8th Cir. 2000), where the district court’s statements made it “entirely
possible that Kent’s probation officer, as opposed to the court, would retain and
exercise ultimate responsibility over the situation,” id. at 1079, the record here does
not affirmatively suggest abdication of judicial responsibility. We therefore reject
Demery’s challenge to the condition of supervised release.
* * *
The judgment of the district court is affirmed in all respects except for the
sentence imposed with respect to Count One. The sentence on Count One is vacated,
and the case is remanded for the limited purpose of resentencing on that count.
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