                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     __________

                                    No. 97-1265
                                    ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *   Appeal from the United States
      v.                                   *   District Court for the
                                           *   District of South Dakota.
Joseph Marvin Charging Hawk,               *
                                           *       [UNPUBLISHED]
             Appellant.                    *

                                   ____________

                          Submitted:     July 23, 1997
                              Filed:     July 28, 1997
                                    ___________

Before FAGG, BOWMAN, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.
       After a fight broke out on an Indian reservation between Joseph Marvin
Charging Hawk and Marlon Sun Bear, Charging Hawk knocked Sun Bear to the
ground, struck him twice with a wine bottle, and used a large block to hit him in the
head, resulting in injuries that caused Sun Bear’s death. Charging Hawk was thereafter
charged with murdering Sun Bear with malice aforethought, in violation of 18 U.S.C.
§§ 1153 and 1111. Prior to trial, Charging Hawk moved in limine to prohibit the
government from offering into evidence photographs of the victim taken after his death.
At a hearing on the motion outside of the jury’s presence, the district court1 noted that
the issue was whether Charging Hawk acted with malice aforethought, and concluded
it was important for the jury to determine the duration of the assault and the number of
times the victim was struck; the court denied the motion in limine and admitted the
challenged photographs at trial. The jury found Charging Hawk guilty of second-
degree murder as charged in the indictment, and he appeals his conviction, challenging
the admission of the photographs. We affirm.

       Under Federal Rule of Evidence 403, relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice or of
misleading the jury, or by needless presentation of cumulative evidence. Unfair
prejudice occurs to the extent evidence creates an undue tendency to suggest decision
on an improper basis. See United States v. Hiland, 909 F.2d 1114, 1135 (8th Cir.
1990).

      "A district court has broad discretion in ruling on admissibility of evidence."
United Stated v. Moore, 38 F.3d 977, 981 (8th Cir. 1994). We review a district court’s
evidentiary rulings only for an abuse of discretion. See United States v. Ballew, 40
F.3d 936, 941 (8th Cir. 1994), cert. denied, 514 U.S. 1091 (1995). Because Charging
Hawk did not object to the admission of two of the exhibits he challenges on appeal,
we review their admission for plain error resulting in a miscarriage of justice. See
United States v. Roach, 28 F.3d 729, 732 (8th Cir. 1994); United States v. Grooms,
978 F.2d 425, 429 (8th Cir. 1992).
       To prove malice aforethought, the government had to show Charging Hawk
intended at the time of the killing to take the life of a human being, or to act in callous
and wanton disregard of the consequences of human life. See United States v. Johnson,



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

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879 F.2d 331, 334 (8th Cir. 1989). Although Charging Hawk offered to stipulate to
factual matters probative of causation, death, and the identity of the perpetrator, a jury
is generally permitted to have a complete picture of the events constituting the charged
crime, and a critical aspect of the balancing analysis under Rule 403 is whether the
challenged evidence is probative of issues other than the one to which the defendant
has offered to stipulate. See Hiland, 909 F.2d at 1134.

       Given the government’s burden to show that Charging Hawk acted with malice
aforethought--a contested issue--we conclude that the district court did not err in
admitting the exhibits. See Moore, 38 F.3d at 981; United States v. Standish, 3 F.3d
1207, 1209 (8th Cir. 1993); United States v. Naranjo, 710 F.2d 1465, 1468-69 (8th Cir.
1983).

      Finally, we conclude that the probative value of the photographs was not
outweighed by the danger of misleading the jury as to the extent of the injuries inflicted
by Charging Hawk, and were not so cumulative as to outweigh their probative value.

      Accordingly, we affirm.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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