                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2183
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                             Dashown Raymond Keys

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                          Submitted: December 14, 2018
                             Filed: March 22, 2019
                                 ____________

Before LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,* District
Judge.
                          ____________

LOKEN, Circuit Judge.

      A jury convicted Dashown Raymond Keys of four counts of aggravated sexual
abuse of a child and two counts of abusive sexual contact of a child, in Indian

      *
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
country, in violation of 18 U.S.C. §§ 1152, 2241(c), 2246(2), 2244(a)(5), and
2246(3). Keys appeals the conviction, arguing the district court1 abused its discretion
by admitting evidence of a prior sexual assault, improperly commenting during one
victim’s testimony, and limiting the testimony of a defense witness. He further argues
the district court abused its discretion in imposing a 540-month prison sentence.
Concluding there was no abuse of discretion, we affirm.

                               I. Evidentiary Issues.

       During the period in question, February 2013 to September 2015, Keys lived
in the home of Heidi and Rossi Haynes, Keys’s uncle, on the Sisseton-Wahpeton
Sioux Tribe’s reservation in Agency Village, South Dakota. During most of that
period, Keys shared a bedroom with I.C., Heidi Haynes’s minor daughter. On many
occasions, I.C. and her younger sister, R.C., would invite friends for sleepovers in
that bedroom, including J.V. and H.L.

        Keys returned to his family in Milwaukee in early January, 2016. A few days
later, I.C., then 12 years old, told her mother that Keys had sexually abused her.
Heidi took I.C. to the Sisseton hospital emergency room. Law enforcement was
notified, and a child abuse investigation began. I.C. told investigators that Keys had
sexually abused her beginning in early 2013. J.V. told investigators that Keys had
sexually abused her on multiple occasions when she spent the night with I.C. H.L.
told investigators that Keys sexually abused her while sleeping over at I.C.’s house.
This prosecution followed. The superseding indictment charged Keys with three
counts of aggravated sexual abuse and one count of abusive sexual contact with I.C.,
and with one count of aggravated sexual abuse and one count of abusive sexual
contact with J.V.


      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

                                         -2-
      At trial, I.C. testified that the abuse began when she was nine years old. It
occurred more times than she could count when she and Keys shared a bedroom. The
abuse included repeated instances of vaginal touching, attempted digital penetration,
oral sex, anal intercourse, and attempted vaginal intercourse. J.V. testified, by
marking anatomical exhibits, that Keys pulled her pants down and attempted vaginal
and anal intercourse when she stayed overnight in the bedroom Keys and I.C. shared.
After a three-day trial, a jury convicted Keys of all six counts of aggravated sexual
abuse and abusive sexual contact.

       On appeal, Keys argues the district court abused its discretion in making three
evidentiary rulings, and the cumulative prejudicial effect of these errors warrants a
new trial. We review evidentiary rulings for abuse of discretion. We reverse only “if
the district court’s evidentiary rulings constitute a clear and prejudicial abuse of
discretion.” United States v. Never Misses A Shot, 781 F.3d 1017, 1027 (8th Cir.
2015). “We will not overturn a conviction based on the cumulative effect of trial
errors unless there is substantial prejudice to the defendant.” United States v. Jewell,
614 F.3d 911, 929 (8th Cir. 2010).

       A. H.L.’s Trial Testimony. At trial, the government called H.L. as a witness
after I.C. testified. Over Keys’s objection, H.L. testified that, during a sleep-over
with I.C. and R.C. in the shared bedroom, Keys woke her up during the night by
“rubbing my bottom,” whispering “I love you” in her ear, moving his hand to her
front private part, and pressing his private part against her bottom. Keys argues the
district court abused its discretion by admitting this testimony under Rules 413 and
403 of the Federal Rules of Evidence. See United States v. Gabe, 237 F.3d 954, 959
(8th Cir. 2001) (standard of review).

       Evidence of prior bad acts is generally not admissible to prove a defendant’s
character or propensity to commit crime. Fed. R. Evid. 404(b). However, “Congress
altered this rule when it adopted Rules 413 and 414 of the Federal Rules of Evidence.

                                          -3-
Now, in sexual assault and child molestation cases, evidence that the defendant
committed a prior or similar offense may be considered for its bearing on any matter
to which it is relevant, including the defendant’s propensity to commit such offenses.”
Gabe, 237 F.3d at 959 (quotation omitted). A prior sexual assault is relevant to a
charged offense if it is “committed in a manner similar to the charged offense.”
United States v. Crow Eagle, 705 F.3d 325, 327 (8th Cir. 2013) (quotation omitted).
If relevant, evidence of a prior sexual assault is admissible “unless its probative value
is substantially outweighed by one or more of the factors enumerated in Rule 403,
including the danger of unfair prejudice.” Gabe, 237 F.3d at 959 (quotation omitted).
“District courts are given broad discretion in gauging the possibility of unfair
prejudice under Rule 403.” United States v. Medicine Horn, 447 F.3d 620, 622 (8th
Cir. 2006).

       Here, evidence of Keys’s sexual assault of H.L. was clearly relevant. It was
committed in a similar manner and during the same time period as the child sex abuse
Keys was charged with committing against I.C. and J.V. All three victims were
young girls between the ages of 9 and 12; all testified that Keys touched their anal
and vaginal areas with his hands or penis at night in the shared bedroom. See Crow
Eagle, 705 F.3d at 328 (“the methods of assault were similar”); United States v. Holy
Bull, 613 F.3d 871, 873-74 (8th Cir. 2010); Gabe, 237 F.3d at 959-960 (“almost
identical” child sexual abuse committed twenty years before trial admissible).

       Keys argues that, regardless of relevance, the district court abused its Rule 403
discretion because the probative value of H.L.’s testimony was substantially
outweighed by the danger of unfair prejudice. However, like most relevant Rule 413
evidence, H.L.’s testimony is prejudicial “for the same reason it is probative -- it
tends to prove [Keys’s] propensity to molest young children.” Gabe, 237 F.3d at 960.
We have repeatedly held that, under Rule 413, that is not “unfair prejudice.” See,
e.g., United States v. Horn, 523 F.3d 882, 888 (8th Cir. 2008).



                                          -4-
      B. J.V.’s Testimony. After I.C. and H.L. testified, the government called
eleven-year-old J.V. On direct exam, after preliminary questions, government
counsel addressed the two charges relating to J.V.:

      Q . . . J.V. you know why you’re here today, right ?

      A Yes.

      Q Okay. I want to ask you on those times that you slept over at the
      house that I.C. and [Keys] stayed at, did anything happen between you
      and Dashown?

            [Defense counsel]: Your Honor, I’m going to object to leading.

            The Court: Overruled.

      Q (By [government counsel]) That means you can answer, J.V. . . .
      Did something happen between you and Dashown?

      A (Pause.)

      Q J.V., can you give a yes or no, please?

      A Yes.

      Q Yes, okay. J.V., can you tell the members of the jury what happened
      between you and Dashown?

      A (Pause.)

      Q J.V., can you tell us what happened, please?

            The Court: Can you try to answer his questions, please?

      A (Pause.)


                                       -5-
Q Can you tell us what happened, J.V.?

A He touched me.

Q How did he touch you?

A His private part.

Q His private part?

A Yes.

Q What did his private part touch?

A (Pause.)

            The Court: Did you understand his question? Try to
answer, please.

               [Sidebar conference concerning the next question.]

Q J.V., you said that the defendant touched you with his private part,
right? That’s just a yes or no. Can you give me a yes or no right now,
please? Do you remember giving that answer, J.V.?

         The Court: J.V., try to answer the questions, so you can get off the
stand.

A Yes.

Q (By [government counsel]) Okay. J.V., I’m going to show you
what’s been marked as Government Exhibit 13 here. Can you take this
pen, and can you circle the area that you meant was his private part that
touched you?

A (Complies.)


                                   -6-
At a break in the trial later that day, defense counsel moved for a mistrial “for
improper comments by the Court” because “it’s encouraging a witness by telling her
to answer the questions and get off the witness stand.” The district court responded:
“After careful consideration, I find that I acted properly . . . . The motion for mistrial
is denied.”

       On appeal, Keys argues the district court erred in denying a mistrial because
the court’s comment to J.V., “try to answer the questions, so you can get off the
stand,” deprived Keys of his right to a fair trial because the court “improperly
abandoned his neutral and impartial role and injected himself into the trial on behalf
of the prosecution.” United States v. Lueth, 807 F.2d 719, 727 (8th Cir. 1986). We
reject this contention for multiple reasons.

        First, we have “always been reluctant to disturb a judgment of conviction by
reason of a few isolated, allegedly prejudicial comments of a trial judge.” United
States v. Bland, 697 F.2d 262, 265 (8th Cir. 1983). Second, there was no immediate
objection to this isolated remark, so the district court was deprived of an opportunity
to clarify its remark. See United States v. Flying By, 511 F.3d 773, 777 (8th Cir.
2007). Third, the district court did not question the witness or comment on her
testimony, as in United States v. Singer, 710 F.2d 431, 436 (8th Cir. 1983) (en banc)
(trial unfair where trial judge “injected himself into the trial throughout the entire
proceeding”).

       Fourth, and perhaps most important, the court was attempting to deal with a
distressed child testifying in public about a traumatic experience. The Supreme Court
has “recognized that a State’s interest ‘in the protection of minor victims of sex
crimes from further trauma and embarrassment’ is a ‘compelling’ one.” Maryland v.
Craig, 497 U.S. 836, 852 (1990), quoting Globe Newspaper Co. v. Superior Ct. of
Norfolk Cty., 457 U.S. 596, 607 (1982). Trial judges have the same compelling
interest in minimizing a victim’s trauma and embarrassment at trial.

                                           -7-
       Here, the court interjected only when J.V. struggled with questions “soliciting
very sensitive testimony from a child witness.” United States v. Butler, 56 F.3d 941,
943 (8th Cir. 1995).2 In this context, even more than in Alidani v. Dooley, 365 F.3d
635, 641 (8th Cir. 2004), no reasonable juror would have interpreted the court’s
comment as favoring the prosecution, rather than attempting to calm an eleven-year-
old child being asked to describe a sexual crime. Telling a young child witness, “try
to answer the questions,” is not telling her how to answer the questions. The court’s
neutrality was confirmed during J.V.’s cross examination, when defense counsel
asked a question on this subject, J.V. paused, and the district court commented, “Can
you try to answer his question, J.V.?” In its final instructions, the court instructed the
jury that “nothing I have said or done during the trial, has been said or done to
suggest to you what I think your verdicts should be.”

       C. Deon Taylor’s Testimony. Finally, Keys argues the district court violated
his constitutional right to present a defense when it limited the testimony of defense
witness Deon Taylor regarding (1) a financial dispute between Keys and I.C.’s
guardians and (2) Taylor’s opinion regarding Keys’s motivation for giving I.C. gifts.
A defendant’s constitutional right to present a defense is subject to limitations based
on “concerns about harassment, prejudice, confusion of the issues, the witness’ safety,
or interrogation that is repetitive or only marginally relevant.” Never Misses A Shot,
781 F.3d at 1029 (quotation omitted). We review a district court’s evidentiary rulings
for abuse of discretion; where constitutional rights are implicated, our review is de
novo. “[W]e will reverse a conviction on this basis only when the ruling affected
substantial rights or had more than a slight influence on the verdict.” United States
v. White, 557 F.3d 855, 858 (8th Cir. 2009).




      2
        The court was advised at sentencing that, shortly after the trial, J.V. tried to
kill herself.

                                           -8-
      1. The district court acted well within its discretion when it prohibited Taylor
from testifying about an alleged financial dispute between Keys and I.C.’s guardians.
After Taylor testified that he believed Heidi and Rossi Haynes did not want Keys to
move out because of the financial help he was providing, the district court sustained
an objection to this question: “Did you believe that Dashown’s leaving [the Haynes
home] had something to do with [I.C.’s] allegations?” Keys argues this evidence was
relevant to establish a motive for I.C. to fabricate her claims of sexual assault. But
Taylor’s opinion as an observer did not establish this improbable theory, which
defense counsel vigorously argued but the jury rejected. The district court did not
abuse its discretion by excluding Taylor’s baseless opinion.

       2. After Taylor testified that he observed Keys giving gifts to I.C., the district
court overruled the government’s relevance objection to whether Taylor believed
Rossi and Heidi treated R.C. better than her sister, I.C. However, when defense
counsel asked Taylor why Keys was buying things for I.C., the government objected
that Taylor “does not know what [Keys’s] true motives were.” The court sustained
this objection. Later Keys, the last defense witness, provided an explanation to
counter the government’s theory that the gifts were “grooming” I.C. for a sexual
relationship. On appeal, Keys argues that excluding Taylor’s opinion prevented him
from presenting “a complete defense to the charges.”

       Had Keys testified first, Taylor’s opinion might have had probative value as
corroboration of Keys’s explanation for the gifts. But when Taylor testified, there
was nothing to corroborate, and it was not improper to exclude his personal opinion
of another person’s intent. Knowing Keys would testify, defense counsel could have
provisionally offered Taylor’s opinion as corroboration, or counsel could have
recalled Taylor after Keys testified. As the defense did neither, we cannot conclude
that excluding this opinion was an abuse of the district court’s wide discretion to limit
testimony of marginal probative value. Nor did the ruling affect Keys’s substantial
rights or have more than a slight influence on the verdict.

                                          -9-
                               II. Sentencing Issues.

      At sentencing, the district court overruled defense objections to the Presentence
Investigation Report and determined that the advisory guidelines sentencing range
was the 30-year statutory minimum to life in prison on four of the six counts of
conviction. The court heard victim impact testimony from Heidi Haynes, I.C.’s
mother, and considered victim impact statements from J.V. and her mother. The court
denied Keys’s motion for a downward variance to 30 years but also declined to
impose a life sentence. Explaining at length its weighing of the 18 U.S.C. § 3553(a)
sentencing factors, the court imposed a 540-month prison sentence.

        On appeal, Keys argues the district court abused its sentencing discretion.
First, Keys argues the court procedurally erred by failing to adequately explain why
it rejected his argument that a lower sentence was required based on the need to avoid
unwarranted disparities with similarly situated defendants. This contention is without
merit. “We will not sustain a procedural challenge to the district court’s discussion
of the 18 U.S.C. § 3553(a) sentencing factors by a defendant who did not object to
the adequacy of the court’s explanation at sentencing.” United States v. Maxwell,
778 F.3d 719, 734 (8th Cir.) (citation omitted), cert. denied, 135 S.Ct. 2827 (2015).
Here, the district court explicitly responded to Keys’s lengthy disparity argument at
sentencing, acknowledging its sentencing of other child sex abuse offenders and the
need to avoid unwarranted sentencing disparities. Without question, the court
provided “substantial insight into the reasons for its determination.” United States
v. Feemster, 572 F.3d 455, 463 (8th Cir. 2009) (en banc) (quotation omitted).

       Second, Keys argues the sentence is substantively unreasonable because the
district court failed to “adequately consider and apportion significant weight to
sentencing disparities within the District of South Dakota.” We have repeatedly
declined to require district judges to compare and contrast the defendant being
sentenced with allegedly similar prior offenders. “When the argument is, as in this

                                         -10-
case, that the district court’s sentence created unwarranted disparities with the
sentences imposed on . . . unrelated offenders by . . . different judges, there is no
principled basis for an appellate court to say which defendant[s] received the
‘appropriate’ sentence.” United States v. McElderry, 875 F.3d 863, 865 (8th Cir.
2017), quoting United States v. Fry, 792 F.3d 884, 893 (8th Cir. 2015). Here, the
district court’s justifications for imposing a 540-month sentence “rest on precisely the
kind of defendant-specific determinations that are within the special competence of
sentencing courts.” Feemster, 572 F.3d at 464 (cleaned up).

      The judgment of the district court is affirmed.
                     ______________________________




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