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United States of America v. Chavez Spotted Horse

Date: 02-22-2019

Case Number: 18-1138

Judge: Erickson

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District Court of South Dakota (Hughes County)

Plaintiff's Attorney: Troy R. Morley

Defendant's Attorney: Edward G. Albright - FPD

Description:

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<img width="300" src="https://www.usmarshals.gov/district/sd/locations/aber2.jpg"> 
</center> 
 
In October 2017, a jury found Chavez Spotted Horse guilty of three counts of 
Child Abuse, in violation of 18 U.S.C. § 1153 and SDCL § 26-10-1, as well as three 
1The Honorable Paul A. Magnuson, United States District Judge for the District 
of Minnesota, sitting by designation. 
counts of Assault with a Dangerous Weapon, in violation of 18 U.S.C. §§ 1153 and 
113(a)(3). Spotted Horse appeals, asserting that the district court2 erred in four ways: 
(1) by defining “dangerous weapon” too broadly in its jury instructions; (2) in refusing 
to instruct the jury on reasonable use of disciplinary force by a guardian, which is a 
defense to child abuse under South Dakota law; (3) by excluding evidence of his 
reason for disciplining his niece P.M.; and (4) by denying his subsequent motion for 
a mistrial. We affirm. 
I. Background 
Between October 2014 and December 2016, P.M. and her older brother C.S.H. 
lived with their uncle Spotted Horse in Little Eagle, South Dakota. Little Eagle is 
located on the Standing Rock Indian Reservation. The children had volunteered to 
live with Spotted Horse because their grandmother and legal guardian could no longer 
handle the number of grandchildren living in her house. 
On December 1, 2016, the staff at Little Eagle Day School reported to the 
Bureau of Indian Affairs that they had noticed facial bruises and scratches consistent 
with child abuse on P.M., a fifth grader at the school. Special Agent Sheri Salazar 
responded. Agent Salazar interviewed the girl and examined her injuries. The agent 
also observed “several abrasions and contusions to her back in different stages of 
healing,” and bruises on her arms, hands, shoulders, and legs. 
Agent Salazar then took P.M. to Indian Health Services in Fort Yates, North 
Dakota, where P.M. was examined by a pediatrician, Dr. Sara Jumping Eagle. Dr. 
Jumping Eagle observed that P.M. had “numerous bruises [and] contusions” at 
“various stages of healing throughout her entire body”—specifically mentioning 
2The Honorable Charles B. Kornmann, United States District Judge for the 
District of South Dakota. 
-2- 
injures to P.M.’s left ear, both sides of her face, one of her hands, and her back, thighs, 
and upper arms. Suspecting abuse, Dr. Jumping Eagle referred P.M. to Sanford 
Hospital in Fargo, North Dakota, to see another pediatrician and have additional tests 
done to rule out a possible brain injury. Dr. Jumping Eagle also recommended that 
P.M. be monitored because “as the bruising healed it could also go into her 
bloodstream and affect her kidneys.” Finally, Dr. Jumping Eagle recommended a 
follow-up appointment because of a finding on one of P.M.’s X-rays. 
P.M. told investigators that Spotted Horse hit her with four different objects on 
three separate days during the past week. On November 27, 2016, Spotted Horse 
confronted P.M., accusing her of improper behavior with boys at school. When P.M. 
refused to answer his questions, Spotted Horse beat her with a plastic spoon. The next 
day, Spotted Horse resumed his interrogation of P.M. about her conduct with boys. 
This time he beat her across the back with a wooden back scratcher until it broke. 
Spotted Horse then commanded C.S.H. to find something else that he could use to 
discipline P.M. C.S.H. delayed, hoping that Spotted Horse would relent, but when 
commanded again, C.S.H. reluctantly returned with a plastic blind wand. Spotted 
Horse struck P.M. numerous times across the back with the blind wand as she 
screamed, cried, and begged him to stop. Unsatisfied with P.M.’s answers, the 
questioning resumed two days later, on November 30. When P.M. once again refused 
to provide answers that Spotted Horse deemed appropriate, he became enraged, 
grabbed a plastic hanger, and beat her across the back until the hanger broke. 
On January 19, 2017, Spotted Horse was indicted on three counts of child abuse 
and three counts of assault with a dangerous weapon for striking P.M. with the spoon, 
blind wand, and hanger.3 Prior to trial, Spotted Horse filed a notice of his intent to 
introduce evidence of his motive for administering the discipline to P.M. because he 
3Spotted Horse was not charged for his conduct involving the wooden back 
scratcher. 
-3- 
believed that the motive “was a basis for Defendant to reasonably believe it was 
necessary to discipline her in that manner.” Spotted Horse noted that the case was not 
a case covered by Federal Rule of Evidence 412 but that he was giving notice pursuant 
to the rule to avoid any later claims by the United States. The specific evidence that 
Spotted Horse sought to introduce was testimony “that he was informed that P.M. was 
kissing an older boy and letting [the boy] touch her inappropriately or sexually . . . to 
explain why [Spotted Horse] disciplined her.” He also filed a supplemental Rule 412 
notice seeking to introduce testimony that “P.M. told [him] that she was sexually 
abused while in a foster home in Missouri before she moved to South Dakota.” 
The district court took up the notices in the final pretrial conference on October 
16, 2017, and after a brief discussion ruled the testimony mentioned in the 
supplemental notice inadmissible. The government sought clarification of the court’s 
ruling especially related to the original Rule 412 notice. The court advised that some 
of the conduct described in the original notice was admissible, noting: “[T]he fact that 
he thought that she was hanging around with too many boys or something of that 
nature or kissing a boy or something, that would be [properly] subject to discipline, 
perhaps.” 
The case came on for trial the next day. At the conclusion of C.S.H.’s 
testimony, the court held a bench conference about testimony related to P.M.’s 
behavior with boys at school. The prosecution and defense each indicated their 
“impression that we were going to be allowed to get into the fact that the defendant 
believed that she may have been kissing or inappropriately contacting older boys.” 
During the bench conference, the court clarified its ruling, directing, “But when you 
get into the question of whether or not this child allowed some boys to sexually touch 
her, to molest her, to commit a crime, that’s barred by Rule 412, in my opinion, 
unless, of course, its exclusion would violate the constitutional rights of the 
defendant.” Defense counsel moved for a mistrial “because this is a ruling, middle of 
trial, contrary to what the ruling was yesterday. And that . . . now affects how I can 
-4- 
present my defense.” The court denied the motion for a mistrial and reiterated, “I’m 
telling you that you’re not going to ask her whether she was sexually – whether she 
has been sexually touched by anybody. . . . If she is kissing boys under the bleachers, 
that’s fine.” Defense counsel renewed the motion during a chambers conference at 
the end of the day, and the court again denied the motion. 
Spotted Horse elected to testify on his own behalf. In that testimony, he 
admitted to hitting P.M. with the objects but explained that he believed the discipline 
was necessary. Specifically Spotted Horse testified that he was merely disciplining 
P.M. for misbehaving and that he resorted to physical discipline only as a last resort 
after lesser forms of discipline, such as verbal correction, grounding, and extra chores, 
proved ineffective. Spotted Horse testified that he was concerned about P.M. 
bothering and kissing boys at school and that he was trying to stop her behavior from 
escalating into something more serious. When Spotted Horse attempted to testify 
about P.M. engaging in sexual touching with boys at school, the court prohibited him 
from doing so and struck his answer. 
On October 17, 2017, the district court held an instructions conference. Prior 
to trial, Spotted Horse had submitted proposed jury instructions. Defendant’s 
Proposed Jury Instruction No. 13 stated in relevant part, “A ‘dangerous weapon’ 
means an object used in a manner likely to endanger life or inflict serious bodily 
harm.” Spotted Horse objected to the court’s Jury Instruction No. 18, which read, 
“The phrase ‘dangerous weapon,’ as used in these instructions means any object 
capable of being readily used by one person to inflict bodily injury upon another 
person.” The court overruled his objection. 
Spotted Horse also requested that the court add Defendant’s Proposed 
Instruction No. 14 to the court’s instructions. The proposed instruction, based on the 
statutory defense to child abuse provided in SDCL § 22-18-5, stated: 
-5- 
As it pertains to the charges of Child Abuse, it is a defense if the 
Defendant used reasonable force against P.M. for restraint or correction. 
The use of force against a child is not unlawful if committed by a parent, 
an authorized agent of any parent, or by any guardian, in the exercise of 
a lawful authority to restrain or correct the child and if restraint or 
correction has been rendered necessary by the misconduct of the child, 
or by the child’s refusal to obey the lawful command of such parent or 
an authorized agent or guardian, and the force used is reasonable in 
manner and moderate in degree. 
The court overruled Spotted Horse’s requested instruction, explaining: 
The South Dakota child abuse statute, which is SDCL 26-10-1, deals 
with possible defenses to charges of child abuse if the defendant used 
reasonable force, and it refers to “a parent or the authorized agent of any 
parent.” Mr. Spotted Horse is neither one of those. And then “or by any 
guardian.” He is not the guardian. And South Dakota law defines a 
“guardian” as “one appointed by the Court to be responsible for the 
personal affairs of a minor or protected person, but excludes one who is 
merely a guardian ad litem.” That’s SDCL 29A-5-102. 
“Guardian” is a term of art. It’s a legal term, and it’s not up to the jury 
to decide what the law is. That’s my job. And I’m ruling that Mr. 
Spotted Horse had no more authority to touch this child than I did. The 
fact that the child was living with him has no legal significance. 
The jury found Spotted Horse guilty on all six counts. On January 4, 2018, the 
district court sentenced Spotted Horse to concurrent terms of 76 months’ 
imprisonment on each count to be followed by three years of supervised release.4 This 
timely appeal followed. 
4The court ordered the sentence in this case to be served consecutive to the 
sentence imposed in South Dakota District Court Case No.1:17-cr-10013, Eighth 
Circuit Court of Appeals No. 18-1139. 
-6- 
II. Discussion 
A. Assault with a Dangerous Weapon Instruction 
Spotted Horse contends the district court defined “dangerous weapon” too 
broadly in its jury instructions, “allowing the jury to convict him based on his use of 
unusually innocuous items.” “We review a district court’s formulation of jury 
instructions for an abuse of discretion and its interpretation of law de novo.” United 
States v. Farah, 899 F.3d 608, 614 (8th Cir. 2018) (citing United States v. Cornelison, 
717 F.3d 623, 626 (8th Cir. 2013)). We will not reverse if the instructional error is 
harmless. Id. (citing United States v. Dvorak, 617 F.3d 1017, 1024 (8th Cir. 2010)). 
Spotted Horse argues the district court was bound under the prior panel rule to 
use the more restrictive definition of “dangerous weapon” that he requested. See 
Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (quoting T.L. ex rel. 
Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006)) (“[W]hen faced with 
conflicting panel opinions, the earliest opinion must be followed ‘as it should have 
controlled the subsequent panels that created the conflict.’”). Spotted Horse relies on 
our decision, United States v. Hollow, 747 F.2d 481 (8th Cir. 1984), which he calls 
the “first Eighth Circuit opinion to define [‘dangerous weapon’] under § 113.” 
Hollow is the first of a line of cases that Spotted Horse erroneously believes are 
implicated in this case. He correctly notes that in Hollow we stated, “We have no 
difficulty concluding that the knife was used in a manner likely to endanger life or 
inflict serious bodily harm.” Id. at 482. He also correctly notes that subsequent to 
Hollow in other sufficiency of the evidence cases, we defined “dangerous weapon” 
more broadly as “an object capable of inflicting bodily injury.” See, e.g., United 
States v. Farlee, 757 F.3d 810, 815 (8th Cir. 2014); United States v. Steele, 550 F.3d 
693, 699 (8th Cir. 2008); United States v. LeCompte, 108 F.3d 948, 952–53 (8th Cir. 
1997). 
-7- 
What Spotted Horse fails to recognize is that these sufficiency of the evidence 
cases did not focus on defining a “dangerous weapon” and our choice of phrasing in 
a different context cannot be transplanted into a jury instruction context. The prior 
panel rule only applies when panel opinions actually conflict, which is simply not the 
case here. See Passmore v. Astrue, 533 F.3d 658, 660 (8th Cir. 2008) (citing Brecht 
v. Abrahamson, 507 U.S. 619, 630–31 (1993)) (“[W]hen an issue is not squarely 
addressed in prior case law, we are not bound by precedent through stare decisis.”); 
see also Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk in 
the record, neither brought to the attention of the court nor ruled upon, are not to be 
considered as having been so decided as to constitute precedents.”). 
The district court did not abuse its discretion by defining “dangerous weapon” 
as “any object capable of being readily used by one person to inflict bodily injury 
upon another person.” The court’s definition fairly tracks the statute, 18 U.S.C. § 
113(a)(3), which requires “intent to do bodily harm,” rather than “serious bodily 
harm.” The definition is also consistent with the majority of our opinions over the 
past two decades involving assault with a dangerous weapon (albeit in the context of 
sufficiency of the evidence). That the objects used by Spotted Horse were relatively 
innocuous is of no significance. See United States v. Peneaux, 432 F.3d 882, 890 
(8th Cir. 2005) (internal citations omitted) (noting that “[s]uch innocuous objects as 
pool sticks and chairs have been found to constitute dangerous weapons in certain 
circumstances”). In any event, any instructional error was harmless, given the nature 
and vast extent of P.M.’s injuries. 
B. Reasonable Use of Disciplinary Force Defense 
Spotted Horse next challenges the district court’s refusal to instruct the jury on 
the reasonable use of disciplinary force by a guardian as a defense to the crime of 
child abuse. When a district court declines to give a jury instruction setting forth a 
legal defense, we review the denial de novo. United States v. Young, 613 F.3d 735, 
-8- 
743 (8th Cir. 2010). “To the extent that the district court’s legal conclusion regarding 
whether [Spotted Horse’s] defense theory accurately reflected the law was based on 
factual findings, we review for clear error.” Id. at 744 (quoting United States v. 
Benning, 248 F.3d 772, 775 (8th Cir. 2001)). 
Spotted Horse’s proposed instruction was based on SDCL § 22-18-5, which 
outlines a statutory defense to child abuse charges under South Dakota law: 
To use or attempt to use or offer to use force upon or toward the person 
of another is not unlawful if committed by a parent or the authorized 
agent of any parent, or by any guardian, teacher, or other school official, 
in the exercise of a lawful authority to restrain or correct the child, pupil, 
or ward and if restraint or correction has been rendered necessary by the 
misconduct of the child, pupil, or ward, or by the child’s refusal to obey 
the lawful command of such parent, or authorized agent, guardian, 
teacher, or other school official, and the force used is reasonable in 
manner and moderate in degree. 
The court concluded that Spotted Horse did not qualify as a “guardian” for purposes 
of the statute because he was not P.M.’s legal guardian. Spotted Horse contends the 
court’s conclusion was in error because he was P.M.’s guardian under the ordinary 
meaning of that term, which is left undefined by the statute. 
We need not determine whether a de facto guardian who houses and provides 
for a child qualifies as a “guardian” for purposes of the statutory defense. Instead, we 
conclude that the district court properly denied Spotted Horse’s proffered defense 
because no reasonable jury could have found that his use of force was “reasonable in 
manner and moderate in degree,” as required by the statute. 
-9- 
C. Exclusion of Sexual Touching Evidence and Denial of Motion 
for Mistrial 
Spotted Horse also argues the district court erred when it (1) prohibited him 
from introducing testimony that P.M. had engaged in sexual touching with boys at 
school and (2) denied his subsequent motion for a mistrial. Spotted Horse claims the 
court’s ruling violated both his Fifth Amendment due process and Sixth Amendment 
confrontation rights. He asserts that the court compounded its constitutional violation 
when it revisited its in limine ruling and excluded evidence both parties believed 
would be admitted. Generally, “[w]e review a district court’s interpretation and 
application of the rules of evidence de novo and its evidentiary rulings for abuse of 
discretion.” United States v. Pumpkin Seed, 572 F.3d 552, 558 (8th Cir. 2009) 
(quoting United States v. Street, 531 F.3d 703, 708 (8th Cir. 2008)). We review 
whether an evidentiary ruling violates a constitutional right de novo. Id. (citing 
United States v. White, 557 F.3d 855, 857 (8th Cir. 2009)). We review the denial of 
a motion for mistrial for abuse of discretion. United States v. Hollins, 432 F.3d 809, 
812 (8th Cir. 2005) (citing United States v. Flores, 73 F.3d 826, 831 (8th Cir. 1996)). 
We first note that rulings in limine are not etched in stone but are in their very 
nature preliminary. As one commentator has noted: “[T]he writers and cases agree 
that a definitive ruling [in limine] does not bind the judge; she can alter the ruling in 
light of changing circumstances.” C. Wright & K. Graham, 21 FEDERAL PRACTICE 
AND PROCEDURE 2D ED. § 5037.16 (2005). This power is inherent in the nature of 
rulings in limine, which are specifically designed to streamline the presentation of 
evidence and avoid unnecessary mistrials. The decisions, however, are necessarily 
made before the relevance and the import of the evidence is fully revealed. If the 
evidence changes the basis for the ruling, or even if the judge is simply convinced that 
his ruling in limine is erroneous, he retains the authority to change it. Any other rule 
would cause unnecessary mistrials rather than avoid them. 
-10- 
Moreover, a defendant’s right to introduce evidence in his defense is not 
without limitation. United States v. Never Misses A Shot, 781 F.3d 1017, 1029 (8th 
Cir. 2015) (citing Pumpkin Seed, 572 F.3d at 559–60). “These limitations include 
‘concerns about harassment, prejudice, confusion of the issues, the witness’ safety, or 
interrogation that is repetitive or only marginally relevant.’” Id. (quoting Pumpkin 
Seed, 572 F.3d at 560). A court has discretion to exclude evidence under such 
limitations “as long as they are not ‘arbitrary or disproportionate to the purposes they 
are designed to serve.’” Id. (quoting Pumpkin Seed, 572 F.3d at 560). 
Based on our review of the record, we are satisfied that the district court did 
not exclude the evidence arbitrarily or hinder Spotted Horse’s ability to present his 
defense. Despite the court’s evidentiary rulings, Spotted Horse was able to elicit 
evidence about his motivations for disciplining P.M. Spotted Horse, P.M., C.S.H., 
and the children’s aunt and grandmother each testified that Spotted Horse was 
concerned that P.M. was bothering, kissing, and “under the bleachers” with boys at 
school. Notwithstanding the court’s ruling, C.S.H. briefly mentioned Spotted Horse’s 
concerns about a boy touching P.M. at school. Two witnesses testified about Spotted 
Horse’s concerns that P.M. would end up like his sexually active and pregnant teenage 
cousins if she did not change her behavior with boys. Given this testimony, any more 
detailed or graphic description of the touching was unnecessary to explain the reason 
for discipline and served no purpose other than to embarrass or diminish P.M. The 
district court did not err by excluding testimony about sexual touching nor abuse its 
discretion by denying Spotted Horse’s motion for a mistrial.

Outcome:

For the foregoing reasons, we affirm the judgment of the district court.

Plaintiff's Experts:

Defendant's Experts:

Comments:

About This Case

What was the outcome of United States of America v. Chavez Spotted Horse?

The outcome was: For the foregoing reasons, we affirm the judgment of the district court.

Which court heard United States of America v. Chavez Spotted Horse?

This case was heard in United States Court of Appeals for the Eighth Circuit on appeal from the District Court of South Dakota (Hughes County), SD. The presiding judge was Erickson.

Who were the attorneys in United States of America v. Chavez Spotted Horse?

Plaintiff's attorney: Troy R. Morley. Defendant's attorney: Edward G. Albright - FPD.

When was United States of America v. Chavez Spotted Horse decided?

This case was decided on February 22, 2019.