United States Court of Appeals
For the Eighth Circuit
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No. 12-3486
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kerby St. John
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: May 17, 2013
Filed: June 7, 2013
[Published]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
Kerby St. John was charged with domestic assault by a habitual offender in
violation of 18 U.S.C. § 117. At trial St. John moved for a judgment of acquittal
based on insufficient evidence, which the district court1 denied. The jury convicted
St. John of the charge, and he appeals. We affirm.
St. John is a member of the Standing Rock Sioux Tribe and lives on the
reservation in Kenel, South Dakota. Some eleven years ago he began dating Bonnie
White Bull, a member of the same tribe. Their relationship started well, and White
Bull soon moved into St. John’s house. There was evidence at trial that St. John then
became jealous and asserted control over the clothes White Bull wore and the amount
of time she spent on errands. St. John would become angry and sometimes violent
if White Bull did not meet his expectations. They nonetheless continued living
together for some nine years.
On the morning of July 21, 2011, White Bull received a phone call relating to
St. John’s work at a horse pasture, and she drove to the pasture to take him coffee and
deliver the message. That night while White Bull was bathing, St. John went into the
bathroom upset about her trip to the pasture. White Bull got out of the bathtub and
went into the bedroom, pleading with him to calm down. St. John grew angrier,
began yelling, and called White Bull various names before pushing her and hitting
her in the face. St. John then left the house. Although White Bull was hurt and upset,
she did not call for help and slept in the same bed with St. John that night.
White Bull later testified that she was embarrassed by the incident and afraid
of St. John. He threatened to lie if she made a report to the police. White Bull was
also afraid that St. John could have her fired from her job as a tribal school nurse
because he was a member of the tribal council. After two days of “walking on
eggshells” and trying to act normally around St. John, White Bull told one of her
neighbors and another friend about the violent incident. After they encouraged her
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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to report the abuse, White Bull called the police while St. John was out of the house.
An officer from the Bureau of Indian Affairs (BIA) spoke with White Bull and
investigated the incident. He observed bruising on her right cheek and photographed
her injuries. White Bull stayed at a neighbor’s house that night and permanently
separated from St. John the following morning.
St. John was thereafter charged with one count of domestic assault by a
habitual offender in violation of 18 U.S.C. § 117. At trial both White Bull and the
BIA officer testified, and photographs of her injuries were introduced. At the end of
the government’s case in chief, St. John moved for a judgment of acquittal based on
insufficient evidence. The district court denied the motion. St. John then called five
defense witnesses who testified about him and his relationship with White Bull. At
the close of all the evidence St. John renewed his motion for a judgment of acquittal,
which was again denied. The jury convicted St. John of the charge, and the district
court sentenced him to 24 months imprisonment.
St. John appeals, claiming there was insufficient evidence to support his
conviction. We review a challenge to the sufficiency of the evidence de novo and
will affirm the jury’s verdict “if, taking all facts in the light most favorable to the
verdict, a reasonable juror could have found the defendant guilty of the charged
conduct beyond a reasonable doubt.” United States v. Clark, 668 F.3d 568, 572 (8th
Cir. 2012) (citation omitted). On this review we do not weigh the evidence or assess
witness credibility because the jury has “the sole responsibility to resolve conflicts
or contradictions in testimony.” United States v. Wiest, 596 F.3d 906, 910 (8th Cir.
2010).
To convict St. John of domestic assault by a habitual offender, the government
had to prove that (1) on at least two prior occasions St. John had been convicted of
domestic assault in Indian tribal court, (2) St. John had assaulted White Bull, (3) St.
John and White Bull were cohabiting as intimate partners at the time of the offense,
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and (4) the assault occurred in Indian country. See 18 U.S.C. § 117. St. John contests
only the third element. An “intimate partner” under § 117 is a person who cohabits
in a social relationship of a romantic or intimate nature, which is assessed by
considering the length and type of their relationship and the frequency of their
interaction. See 18 U.S.C. § 2266(7). St. John argues that no interpretation of the
trial evidence would allow a reasonable jury to find that he and White Bull were
cohabiting as intimate partners at the time of the assault. He emphasizes that no
witness specifically stated that they were sexually involved and that the government
failed to establish a definitive time frame for their relationship. St. John contends that
the jury’s verdict was the product of mere speculation.
After examining the evidence, we conclude that it was sufficient to sustain the
jury’s verdict. White Bull testified that she and St. John had started dating in
approximately 2002 and that she moved into his house soon thereafter. After some
nine years there, she permanently left his house as a result of the assault on her.
When the government asked White Bull on direct examination if she had “become
involved in a relationship” with St. John and if they had “date[d] for a period of
time,” she answered both questions affirmatively. She testified that on the night of
the assault St. John had entered the bathroom while she was bathing and that the two
ended up sleeping in the same bed that evening. The jury apparently believed White
Bull’s testimony, and her credibility was a matter for it to assess. See Wiest, 596 F.3d
at 910. Moreover, St. John’s own witnesses referred to White Bull as his “girlfriend”
and indicated that they formerly lived together. Viewing all the evidence in the light
most favorable to the verdict, Clark, 668 F.3d at 572, a reasonable jury could find that
St. John and White Bull were cohabiting as intimate partners at the time of the
assault.
Based upon this record we conclude that the district court did not err by
denying St. John’s motion for a judgment of acquittal. We affirm the judgment.
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