                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1657
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Patrick Brown Thunder

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                           Submitted: January 14, 2014
                             Filed: March 12, 2014
                                 ____________

Before GRUENDER, BRIGHT, and MELLOY, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

      Following a jury trial, Patrick Brown Thunder was convicted of two counts of
a four-count indictment: sexual abuse of a minor (A.C.), a violation of 18 U.S.C.
§§ 2243(a) and 1153(a), and sexual abuse of a person incapable of consenting (H.C.),
a violation of 18 U.S.C. §§ 2242(2) and 1153(a). The district court1 sentenced him
to concurrent 180- and 240-month terms of imprisonment. For the reasons described
below, we affirm.

I. Background

       On March 28, 2008, three minor girls, A.C., H.C., and T.C., consumed a liter
of whiskey at A.C.’s home. Brown Thunder, who was 26 years old at the time, joined
the girls. Shortly before A.C.’s mother was due to arrive at the residence, Brown
Thunder drove away with H.C. By this time, the alcohol had caused H.C. to
experience difficulty walking and speaking. Shortly thereafter, H.C.’s mother, Fawn
High Bear, realized her daughter was not at home and called A.C.’s house. She spoke
with T.C., who said that H.C. “went off walking alone.” T.C. told A.C. about her
conversation with High Bear. A.C. then visited High Bear and told her the
truth—that Brown Thunder had driven away with her daughter.

       High Bear drove to the house of Brown Thunder’s mother, where she identified
Brown Thunder in his car. She parked behind his vehicle and yelled out, “My
daughter—I want my daughter out of there.” Looking in the vehicle’s window, she
identified her daughter passed out on the reclined front passenger seat. She pounded
on the window and pulled the locked door handle—all to no avail. Boxed in by High
Bear’s car behind him, Brown Thunder sped off through the backyard and escaped
with H.C. High Bear notified the authorities.

       Several hours later, H.C. knocked on Kelly Speker’s front door, and his
girlfriend, Alyssa Knight, answered. Knight called H.C.’s aunt, Jennifer Brown Wolf,


      1
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.


                                        -2-
to report H.C.’s appearance at Speker’s residence. Knight waited outside with H.C.
until Brown Wolf arrived. H.C. was unable to remember what had happened to her.
When Brown Wolf arrived, she observed that H.C.’s hair was disheveled, her makeup
was smeared, and her shirt and pants were stained with blood. H.C. also was missing
a shoe. After meeting with High Bear, they called an ambulance to take H.C. to the
local hospital. Unable to receive care there, High Bear drove H.C. to the hospital in
Pierre, South Dakota.

        The attending nurse identified scrapes on H.C.’s face and chest, bruises on her
knees, and a two-centimeter laceration on the right side of her vaginal wall.
According to the physician who testified at trial, this laceration was consistent with
an object being inserted into the vagina and not with a straddle-type injury. Blood
was identified on her shirt, pants, and underwear. No evidence of semen was found
on H.C.’s genitals or clothing, but a blood sample retrieved from Brown Thunder’s
front passenger seat matched H.C.’s DNA. Medical experts testifying at trial agreed
that it was not possible to determine whether the injury was caused by a penis, a hand,
a finger, or another object.

      During the investigation of H.C.’s assault, A.C. told an FBI agent that Brown
Thunder first had intercourse with her when she was thirteen years old. The FBI
agent visited a trailer court parking lot where A.C. reported she and Brown Thunder
had sex. The agent found H.C.’s missing shoe in the parking lot.

      At trial, Brown Thunder attempted to implicate Speker, a convicted sex
offender, as the perpetrator responsible for assaulting H.C. However, given the lack
of evidence showing Speker and H.C. spent time alone together on the evening in
question, the district court did not allow Brown Thunder to introduce evidence of
Speker’s prior sexual abuse conviction. Instead, the court limited the inquiry about



                                         -3-
Speker to whether law enforcement conducted a sufficient investigation of H.C.’s
assault.

       Following the jury’s guilty verdict, Brown Thunder filed a motion for judgment
of acquittal based upon insufficiency of the evidence as to the sexual abuse count
involving H.C., which was denied. Brown Thunder raises three arguments on appeal:
(1) the district court abused its discretion by failing to give his theory-of-defense
instruction; (2) the evidence was insufficient to support his conviction for sexually
abusing H.C.; and (3) the district court abused its discretion by excluding evidence
of Speker’s prior sexual abuse conviction.

II. Discussion

A. Theory-of-Defense Instruction

       “We review a district court’s rejection of [a] defendant’s proposed instruction
for abuse of discretion, and we recognize that district courts are entitled to broad
discretion in formulating the jury instructions.” United States v. Ironi, 525 F.3d 683,
688 (8th Cir. 2008) (quoting United States v. Hayes, 518 F.3d 989, 994 (8th Cir.
2008)). “We will affirm so long as the jury instructions given by the district court,
‘taken as a whole, fairly and adequately submitted the issues to the jury.’” United
States v. Chatmon, --- F.3d ---, 2014 WL 443979, at *3, slip op. at 6 (8th Cir. Feb. 5,
2014) (quoting United States v. Engelmann, 720 F.3d 1005, 1011 (8th Cir. 2013)).
“Defendants are entitled to a theory of defense instruction if it is timely requested, is
supported by the evidence, and is a correct statement of the law.” Id. However,
“there is no error if the instructions as a whole, by adequately setting forth the law,
afford counsel an opportunity to argue the defense theory and reasonably ensure that
the jury appropriately considers it.” United States v. Christy, 647 F.3d 768, 770 (8th
Cir. 2011).


                                          -4-
       Brown Thunder submitted a handwritten proposed jury instruction outlining
three defense theories: (1) that A.C. falsely accused Brown Thunder; (2) that the
evidence was insufficient to prove that H.C. was sexually abused or, in the
alternative, that Brown Thunder was the perpetrator of any abuse; and (3) that High
Bear falsely testified that she identified her daughter in Brown Thunder’s car. The
district court rejected the instruction, reasoning that it was “duplicative of what
already [was] in the instructions” and was “more in the nature of arguments to the
jury.” However, the district court did instruct the jury that Brown Thunder had pled
not guilty and was presumed to be innocent until proven guilty. The district court
also explained that, to establish guilt, the essential elements of each offense had to be
proven by the Government beyond a reasonable doubt. The jury also was instructed
to consider the credibility of the witnesses in reaching its verdict.

       In Christy, the defendant requested an alibi theory-of-defense instruction,
which the district court rejected. Id. at 770-71. We observed that “[n]o specific
instruction was necessary to alert the jur[ors] that . . . [they] must find [the defendant]
not guilty if they had a reasonable doubt about whether he was present” at the scene
of the crime. Id. at 771. Likewise, no additional specific instruction was necessary
here. Based on the instructions given, the jurors understood that they had to find
beyond a reasonable doubt that Brown Thunder sexually abused H.C. The jurors also
knew they had to consider whether the testimony against him was credible and
truthful. Brown Thunder’s rejected theory-of-defense instruction essentially
amounted to an assertion that he did not commit the crimes charged. He was afforded
the opportunity to argue these theories during closing argument; moreover, the jury
instructions, as given, reasonably ensured that the jury would consider his theories.
See United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995) (finding no error
where the substance of the rejected instruction was adequately addressed in other
instructions and the defendant’s counsel was permitted to argue the substance of the
rejected instruction during closing argument). Accordingly, we find no abuse of


                                           -5-
discretion in refusing to give Brown Thunder’s tendered theory-of-defense
instruction.

B. Sufficiency of the Evidence

       “In reviewing the denial of a motion for a judgment of acquittal, we review the
sufficiency of the evidence de novo, evaluating the evidence in the light most
favorable to the verdict and drawing all reasonable inferences in its favor.” United
States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014). “[T]he court will not disturb
the conviction unless ‘no reasonable jury could have found the defendant guilty
beyond a reasonable doubt.’” Id. (quoting United States v. Serrano-Lopez, 366 F.3d
628, 634 (8th Cir. 2004)). “Importantly, ‘[i]t is not necessary for the evidence before
the jury to rule out every reasonable hypothesis of innocence. It is enough if the
entire body of evidence [is] sufficient to convince the fact-finder beyond a reasonable
doubt of the defendant’s guilt.’” Id. (first alteration in original) (quoting United
States v. Surratt, 172 F.3d 559, 564 (8th Cir. 1999)). This is a “very strict standard
of review.” United States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004). Brown
Thunder raises two sufficiency arguments with respect to the sexual abuse count
involving H.C., and we consider them each in turn.

       Brown Thunder was found guilty of sexual abuse of a person incapable of
consenting, requiring proof that he “engage[d] in a sexual act with another person”
who was “incapable of appraising the nature of the conduct” or “physically incapable
of declining participation in, or communicating unwillingness to engage in, that
sexual act.” United States v. Demery, 674 F.3d 776, 779 (8th Cir. 2011) (quoting 18
U.S.C. § 2242(2)). Section 2246(2) describes four different types of conduct
constituting a “sexual act.” 18 U.S.C. § 2246(2). Brown Thunder was found guilty
of sexual abuse by means of the sexual act described in § 2246(2)(C), requiring
“penetration, however slight, of the anal or genital opening of another by a hand or


                                         -6-
finger or by any object.” Id. Brown Thunder also was charged in a separate count
of sexually abusing H.C. by means of the sexual act described in § 2246(2)(A),
requiring “contact between the penis and the vulva or the penis and the anus.” Id.
He was acquitted on this count.

        Brown Thunder contends that no reasonable jury could have found him guilty
of abusing H.C. by use of his hand, finger, or any object, as opposed to his penis.2 In
support of his argument, Brown Thunder cites undisputed medical expert testimony
that it was not possible to determine whether H.C. was abused with Brown Thunder’s
penis or with his hand, finger, or any object. Brown Thunder asserts that “[i]f there
was a reasonable possibility that the contact was with a penis, then there was a
reasonable possibility that the contact was not with the defendant’s hand, finger[,] or
[any] object.” Appellant’s Brief at 23 (emphasis in original). As uncomfortable as
it is to characterize his claim as a “hypothesis of innocence,” Brown Thunder
essentially argues that he cannot be held accountable for H.C.’s sexual abuse because
there is a “reasonable possibility” that he sexually abused her with his penis and not
with his hand, finger, or any object. This argument, however, misconstrues our role
in reviewing a jury’s verdict. We have held that “[i]t is not necessary for the evidence
before the jury to rule out every reasonable hypothesis of innocence.” Wright, 739
F.3d at 1167. Rather, “[i]t is enough if the entire body of evidence [is] sufficient to
convince the fact-finder beyond a reasonable doubt of the defendant’s guilt.” Id.

      We conclude that the body of evidence was sufficient to support the jury’s
finding that Brown Thunder used his hand, finger, or any object in perpetrating sexual

      2
       The Government did not argue that a penis might qualify as an “object” for
purposes of § 2246(2)(C). Because this matter of statutory interpretation has not been
briefed and because the case can be resolved under sufficiency-of-the-evidence
review, we assume without holding that a penis is not an “object” within the meaning
of § 2246(2)(C).


                                          -7-
abuse against H.C. Brown Thunder left A.C.’s house with H.C., and High Bear later
identified her unconscious daughter with Brown Thunder in his car. He refused High
Bear’s demand to release her daughter, and he sped away. This evidence indicates
that Brown Thunder was alone with H.C. and had the opportunity to sexually abuse
her. One of H.C.’s shoes went missing during the evening of the attack; that shoe was
found in a parking lot where Brown Thunder previously had sexually abused another
victim, providing yet another link to Brown Thunder. The attending physician
identified several injuries indicating that H.C. suffered a sexual assault, including
scraping on her face and chest, bruising on her knees, and a two-centimeter vaginal
laceration. Her blood was detected on her shirt, pants, and underwear, as well as on
Brown Thunder’s front passenger car seat, supporting the conclusion that she was in
his car during or after the attack. Finally, no semen was detected on her clothing or
genitals. While it is possible for penile penetration to occur without ejaculation, the
absence of semen supports a reasonable inference that a hand, finger, or any object
was used during the assault. While it might be that Brown Thunder employed his
penis to sexually abuse H.C., this theory alone is insufficient to overturn the jury’s
verdict under this “very strict standard of review.” Cook, 356 F.3d at 917.
“[E]valuating the evidence in the light most favorable to the verdict and drawing all
reasonable inferences in its favor,” Wright, 739 F.3d at 1167, we conclude that a
reasonable jury could have concluded that Brown Thunder sexually abused H.C. by
use of his hand or finger or by any object.

       Brown Thunder also contends that the evidence was insufficient to prove that
H.C.’s sexual assault occurred in Indian country, as required by 18 U.S.C. § 1153(a).
This argument is unavailing. Brown Thunder admitted at trial that he never left the
Cheyenne River Sioux Indian Reservation on the evening of March 28 or the morning
of March 29, 2008. Additionally, H.C.’s missing shoe was found at the same trailer
court parking lot where Brown Thunder had previously sexually assaulted A.C. This
parking lot is within the boundaries of the reservation. His admission, together with


                                         -8-
the location of H.C.’s missing shoe, would allow a reasonable jury to conclude that
H.C.’s assault occurred in Indian country.

      Accordingly, we affirm the denial of Brown Thunder’s motion for judgment
of acquittal.

C. Speker Evidence

      “We review a district court’s decision to admit or exclude testimony for an
abuse of discretion.” United States v. Jewell, 614 F.3d 911, 918 (8th Cir. 2010). The
Federal Rules of Evidence permit a district court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . confusing the issues.”
Fed. R. Evid. 403. Brown Thunder sought to introduce evidence of Speker’s prior
sexual abuse conviction in order to suggest that it was Speker, and not Brown
Thunder, who sexually abused H.C. However, citing Rule 403 and a concern over
confusion of the jury, the district court excluded evidence of Speker’s prior sexual
abuse conviction given the complete lack of evidence showing that Speker was alone
with H.C. The district court instructed the jury that any testimony concerning Speker
was being admitted for the limited purpose of evaluating the sufficiency of the law
enforcement investigation.

       Brown Thunder contends this ruling and the court’s limiting instruction
deprived him of his right to present a defense and his right to a fair trial. We
disagree. In United States v. Kenyon, 397 F.3d 1071 (8th Cir. 2005), Kenyon sought
to introduce evidence that his victim’s caretaker had a past sexual abuse conviction
and argue that the caretaker, rather than Kenyon, committed the crime. Id. at 1079.
The district court excluded the evidence, and we affirmed because Kenyon’s caretaker
theory was unsupported by any evidence and “was entirely speculative.” Id.
Similarly, Brown Thunder’s theory that Speker perpetrated the abuse is based solely


                                         -9-
upon conjecture. The record is devoid of evidence that Speker spent any time alone
with H.C. While H.C. did approach his residence on the evening in question, Knight
waited with H.C. until Brown Wolf retrieved her. H.C. testified that she did not
interact with anyone other than Knight while waiting for Brown Wolf to arrive at
Speker’s residence. The lack of evidence that Speker had the opportunity to abuse
H.C. completely undermines the probative value of his prior conviction. Moreover,
admitting the conviction into evidence very likely would have confused the jury by
creating the impression that someone without access to the victim may have
committed the crime. This leads us to conclude that the district court did not abuse
its discretion by excluding Speker’s prior conviction under Rule 403 and giving the
limiting instruction.3

      Accordingly, the district court did not abuse its discretion in excluding
evidence of Speker’s prior sexual abuse conviction, and we affirm.

III. Conclusion

      For the foregoing reasons, we affirm.
                      ______________________________



      3
        Additionally, Rule 412 also would bar the admission of this evidence. When
a party seeks to offer evidence that “someone other than the defendant was the source
of semen, injury, or other physical evidence,” the party is required to file a motion
describing the proposed evidence at least fourteen days before trial and to notify the
victim of the proposed evidence. Fed. R. Evid. 412(c)(1). Here, Brown Thunder
neglected to file a Rule 412 motion and failed to notify H.C. or her guardian or
representative of the proposed Speker evidence. See United States v. Eagle, 137 F.3d
1011, 1015 (8th Cir. 1998) (holding that the district court did not abuse its discretion
in excluding evidence based upon the defendant’s non-compliance with the deadlines
in Rule 412(c)).


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