United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 15-2150
     ___________________________

          United States of America,

     lllllllllllllllllllll Plaintiff - Appellee,

                         v.

             Stoney End of Horn,

   lllllllllllllllllllll Defendant - Appellant.
      ___________________________

             No. 15-2151
     ___________________________

          United States of America,

     lllllllllllllllllllll Plaintiff - Appellee,

                         v.

             Stoney End of Horn,

   lllllllllllllllllllll Defendant - Appellant.
                    ____________

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

        Submitted: February 12, 2016
            Filed: July 15, 2016
              ____________
Before SMITH and COLLOTON, Circuit Judges, and GRITZNER,1 District Judge.
                          ____________

COLLOTON, Circuit Judge.

      Stoney End of Horn was convicted by a jury on four counts of sexual abuse of
a minor and one count of assault resulting in serious bodily injury, all occurring in
Indian country. The district court2 sentenced End of Horn to concurrent sentences of
293 months’ imprisonment for each count of sexual abuse and another concurrent
sentence of 120 months’ imprisonment for the assault. End of Horn appeals his
convictions and sentences. We affirm.

                                          I.

       The evidence on the assault charge, which we recount in the light most
favorable to the verdict, concerned an incident that occurred early in the morning on
September 27, 2008. The night before, End of Horn was out drinking with his
girlfriend, Pauline Brave Crow, in Mobridge, South Dakota, and he agreed to give his
cousin (Robert End of Horn) and two of Robert’s friends (Quinton Fernandez and
Elizabeth Mellette) a ride to Wakpala in Brave Crow’s car.

      During the drive, End of Horn and Brave Crow got into an argument. The
discussion became heated, and Brave Crow attempted to jump out of the moving
vehicle. End of Horn stopped the car and continued to argue with Brave Crow. End
of Horn hit Brave Crow in the face with his open palm, and the two got out of the car.

      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
      2
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

                                         -2-
As the argument carried on, Robert and Fernandez tried unsuccessfully to intervene,
and the passengers eventually decided to walk to Wakpala rather than wait longer for
a ride. They left Brave Crow and End of Horn at the side of the road.

        Some time later, Jackie Little Dog, a childhood friend of Brave Crow,
encountered Brave Crow’s vehicle on the side of the road to Wakpala. Little Dog
testified that when she stopped behind the parked car, she saw End of Horn hitting
Brave Crow’s head and face. Little Dog left because she was afraid of End of Horn.
She did not report the incident to authorities, but later told one of Brave Crow’s
daughters what she had seen.

       Later in the morning of September 27, Officer Tracy Whitaker of the National
Park Service was dispatched to the residence of End of Horn’s father in Wakpala in
response to an assault report. There, she saw an ambulance crew treating Brave Crow
for facial injuries. Whitaker asked End of Horn how Brave Crow was hurt, and End
of Horn said that he and Brave Crow had been attacked by hitchhikers. Whitaker
attempted to locate the site of the alleged attack, but could not find evidence of an
assault by hitchhikers.

       Brave Crow suffered a serious fracture, known as a LeFort III fracture, in the
bones of her face. She sustained broken bones in her upper jaw and face, facial
swelling and bruising on the left side of her face, and bruising under both eyes. Brave
Crow was “very, very quiet” when interviewed, and she did not identify her assailant
when hospitalized. Brave Crow’s injuries required multiple surgeries. Her health
deteriorated, and she eventually died on June 25, 2010, as a result of complications
from injuries caused by the assault.

       The evidence concerning sexual abuse centered on the testimony of S.N.H., a
relative of Brave Crow and a twelve-year-old minor during the relevant period.
S.N.H. lived with End of Horn and Brave Crow in McLaughlin, South Dakota. She

                                         -3-
testified about an incident that occurred when Brave Crow was in the hospital for a
stroke in February 2010. According to S.N.H., she woke up to discover End of Horn
rubbing her vagina. End of Horn then pulled up her shirt and bra and licked her
nipples before inserting his penis into her vagina.

       S.N.H. also testified that End of Horn engaged in vaginal intercourse with her
once a month from April through July 2010 while they were staying at the house of
End of Horn’s father in Wakpala. The sexual contact eventually ended. S.N.H. later
reported the sexual abuse in a questionnaire that she filled out at a youth treatment
facility.

       A grand jury charged End of Horn with second-degree murder and assault
resulting in serious bodily injury based on the attack on Brave Crow. A separate
grand jury charged him with multiple counts of sexual abuse of a minor arising from
his contact with S.N.H. By agreement of the parties, the cases were consolidated for
trial. A jury convicted End of Horn of assault, murder, and four counts of sexual
abuse. The district court, relying on Ball v. United States, 140 U.S. 118 (1891), and
Merrill v. United States, 599 F.2d 240, 242 & n.4 (8th Cir. 1979) (per curiam),
concluded that the second-degree murder charge required proof that Brave Crow’s
death occurred within a year and a day of the assault. Because the interval between
assault and death was twenty-one months, the court set aside the verdict on the
murder count. The court then sentenced End of Horn on the remaining counts, and
he appeals.

                                         II.

      End of Horn challenges the sufficiency of the evidence to support the sexual
abuse convictions. The governing statutes prescribe criminal punishment for any
Indian in Indian country who “knowingly engages in a sexual act with another
person” when the other person “has attained the age of 12 years but has not attained

                                         -4-
the age of 16 years” and “is at least four years younger than the person so engaging.”
18 U.S.C. §§ 1153, 2243(a). The definition of “sexual act” includes “contact between
the penis and the vulva or the penis and the anus.” 18 U.S.C. § 2246(2)(A).

       End of Horn asserts that no reasonable jury could have convicted him because
there was no physical evidence of the alleged abuse, and because S.N.H.’s
willingness to be alone with him after alleged incidents of abuse conflicted with her
claims. No physical evidence was necessary: “a victim’s testimony alone can be
sufficient to support a guilty verdict.” United States v. Seibel, 712 F.3d 1229, 1237
(8th Cir. 2013) (internal quotation omitted); see United States v. Kenyon, 397 F.3d
1071, 1076 (8th Cir. 2005). S.N.H. explained her continued interaction with End of
Horn after the sexual abuse as an effort to protect her younger sister from possible
abuse. She testified that she did not report the abuse earlier because she did not want
to make her mother unhappy. These were proper areas for cross-examination and
argument by the defense, but ultimately S.N.H.’s credibility was a question for the
jury. Kenyon, 397 F.3d at 1076; United States v. Kirkie, 261 F.3d 761, 768 (8th Cir.
2001). S.N.H.’s testimony was sufficient to support the convictions.

       End of Horn also challenges the conviction for assault causing serious bodily
injury and the concurrent sentence of 120 months’ imprisonment. He argues that the
district court erroneously admitted hearsay evidence from Brave Crow’s former
husband, Benjamin Mellette. The court, citing the residual hearsay exception of
Federal Rule of Evidence 807, allowed Mellette to testify that Brave Crow told him
after the roadside assault that “Stoney beat the shit out of her.” Over objection,
Mellette testified: “She told me that she had been drinking, her and Stoney, and she
said Stoney beat the shit out of her. And then she turned around and said, ‘But Ben,
you know, that’s my personal life.’”

      Rule 807 provides that a hearsay statement is not excluded by the rule against
hearsay, even if not covered by an exception in Rule 803 or 804, if the statement

                                         -5-
(1) has “equivalent circumstantial guarantees of trustworthiness” to statements
admitted under the enumerated exceptions, (2) is offered as evidence of a material
fact, (3) is more probative on the point offered than any other reasonably available
evidence, and (4) will best serve the general purposes of the rules of evidence and the
interests of justice. We have said that this exception to the rule against hearsay “was
necessary to permit courts to admit evidence in exceptional circumstances where the
evidence was necessary, highly probative, and carried a guarantee of trustworthiness
equivalent to or superior to that which underlies the other recognized exceptions.”
United States v. Renville, 779 F.2d 430, 439 (8th Cir. 1985). We review the district
court’s ruling for abuse of discretion. United States v. Thunder Horse, 370 F.3d 745,
747 (8th Cir. 2004).

        The district court is entitled to some deference in applying Rule 807, but the
court here did not address why Mellette’s statement had “circumstantial guarantees
of trustworthiness” equivalent to the enumerated hearsay exceptions. The
government defends the ruling by pointing to other evidence at trial that supports a
finding that End of Horn assaulted Brave Crow. But corroborating evidence does not
provide the circumstantial guarantees of trustworthiness contemplated by the Rule.
Statements admitted under the firmly rooted hearsay exceptions enumerated in Rule
803 and 804—for example, dying declarations, excited utterances, or statements made
for medical treatment—are “so trustworthy that adversarial testing would add little
to their reliability.” Idaho v. Wright, 497 U.S. 805, 821 (1990), abrogated on other
grounds by Crawford v. Washington, 541 U.S. 36 (2004). According to the theory
of the hearsay rule, this trustworthiness must be gleaned from circumstances that
“surround the making of the statement and that render the declarant particularly
worthy of belief,” not by “bootstrapping on the trustworthiness of other evidence at
trial.” Id. at 819, 823 (citing 5 J. Wigmore, Evidence § 1420, at 251 (J. Chadbourn
rev. 1974)); see United States v. Tome, 61 F.3d 1446, 1452 & n.5 (10th Cir. 1995).




                                         -6-
       To admit Mellette’s testimony under the residual exception, there must be a
reason why a declarant’s statement to her former spouse about an assault by a new
intimate partner is inherently trustworthy. When neither the government nor the
district court has articulated such a theory, we are not disposed to develop one on our
own. We therefore assume that the evidentiary ruling was erroneous, and we consider
whether admission of the evidence affected End of Horn’s substantial rights. Because
statements to friends about abuse are not “testimonial” statements that implicate the
Sixth Amendment right to confront witnesses against the accused, United States v.
Wright, 536 F.3d 819, 823 (8th Cir. 2008); see Giles v. California, 554 U.S. 353, 376
(2008), we apply the harmless-error standard for non-constitutional errors. See Fed.
R. Crim. P. 52(a); Kotteakos v. United States, 328 U.S. 750, 764-65 (1946). A non-
constitutional error is harmless if we are confident that the error did not influence the
jury or had only a very slight effect on the verdict. 328 U.S. at 764. The
corroborating evidence cited by the government, of course, is highly relevant to
whether an evidentiary error was harmless. See Wright, 497 U.S. at 823.

       The record as a whole, excluding the hearsay, shows a convincing case that
End of Horn assaulted Brave Crow. Testimony of Robert End of Horn and Quinton
Fernandez, passengers in Brave Crow’s car, established that they left End of Horn and
Brave Crow alone on the side of a road near Wakpala on the morning of the incident.
The passengers observed a lengthy argument, inside and outside the car, during which
End of Horn was visibly angry. According to Fernandez, End of Horn struck Brave
Crow in the face with his open palm. These witnesses also testified that they heard
screams coming from the location of the vehicle as they walked into the distance.
Jackie Little Dog, a childhood friend of Brave Crow, testified that she saw End of
Horn striking Brave Crow in the head and face when she encountered their car parked
on the side of the road to Wakpala. The defense attacked her credibility because she
failed to report the incident, but Little Dog had no apparent bias and explained that
her fear of End of Horn accounted for her initial silence. Other witnesses observed



                                          -7-
that End of Horn had abrasions on his right knuckles and swelling on his hands after
the incident, thus supporting an inference that he committed the assault.

       End of Horn’s explanation for the injuries to Brave Crow was plagued by
inconsistencies. He informed one officer that hitchhikers (three male and one female)
attacked him and Brave Crow when they stopped while driving from Mobridge to
Wakpala, but told another officer that the attack occurred when he was driving from
Wakpala toward Mobridge. End of Horn reported to the first officer that he drove
away from the attacking hitchhikers but then realized that Brave Crow was not in the
vehicle and returned to the original site. Yet he told the second officer that the
hitchhikers fled after he hit one of them, and that he searched for Brave Crow when
he saw that she was not in the car before leaving the scene. When End of Horn spoke
to a physician’s assistant at the emergency room of the hospital, he reported that he
and Brave Crow encountered an apparently disabled vehicle on the highway and
pulled over to help, at which point two men grabbed Brave Crow and dragged her out
into a field. But when speaking with Brave Crow’s daughter Miranda, End of Horn
claimed that he and Brave Crow stopped to pick up hitchhikers when a group of four
men and a woman knocked him out, and that he could not find Brave Crow when he
regained consciousness. Brave Crow declined to identify her attacker for law
enforcement or for her own daughters—unlikely behavior if she had been assaulted
by strangers on the roadway. End of Horn’s claim that hitchhikers brutally beat
Brave Crow while leaving him virtually unscathed strained credulity.

       Harmless-error analysis necessarily requires a prediction about what would
have occurred if the record were different. Our assessment is that the evidence of
guilt was strong and that the hearsay testimony from Mellette likely did not have
more than a very slight effect on the verdict. Without that testimony, a guilty verdict
was still highly likely based on testimony about the heated argument that preceded
the assault, the eyewitness account of Little Dog, circumstantial evidence of End of
Horn’s injured hands and Brave Crow’s refusal to identify her attacker, and the

                                         -8-
implausibility of End of Horn’s shifting explanations for an attack by unidentified
strangers. We therefore conclude that the erroneous evidentiary ruling did not affect
End of Horn’s substantial rights. End of Horn also challenges the sufficiency of the
evidence, but the evidence discussed amply supported the verdict.

                                         III.

      End of Horn next challenges his sentence of 293 months’ imprisonment on the
sexual abuse convictions. He first contends that the district court committed
procedural error in calculating an advisory sentencing range when it added four levels
because S.N.H. was “in the custody, care, or supervisory control” of the defendant.
See USSG § 2A3.2(b)(1).3 The probation office recommended this adjustment based
on evidence at trial that S.N.H. lived with Brave Crow and End of Horn, and that she
considered End of Horn a “father figure.” At sentencing, End of Horn intentionally
withdrew his objection to application of the four-level adjustment. S. Tr. 28. His
claim of error is therefore waived. United States v. Thompson, 289 F.3d 524, 526-27
(8th Cir. 2002).

       End of Horn also disputes the district court’s decision to depart upward from
the advisory guideline range of 151 to 188 months to a sentence of 293 months. The
district court cited four separate provisions in support of its upward departure: USSG
§ 4A1.3 (inadequacy of criminal history category), § 5K2.1 (conduct resulting in
death), § 5K2.8 (extreme conduct), and § 5K2.21 (dismissed and uncharged conduct).
End of Horn challenges the court’s reliance on §§ 4A1.3 and 5K2.1. We review the
district court’s decision to depart upward for abuse of discretion. United States v.
Shillingstad, 632 F.3d 1031, 1037 (8th Cir. 2011).



      3
      The presentence report mistakenly cited USSG § 2A3.1(b)(1) rather than
§ 2A3.2(b)(1), but the report correctly identified § 2A3.2 as the applicable guideline,
PSR ¶ 24, and the reference to § 2A3.1(b)(1) apparently was a typographical error.
                                         -9-
        Section 4A1.3(a)(1) provides that a district court may depart upward when
“reliable information indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other crimes.” Here, the district court
cited five convictions in state court for which End of Horn received no criminal
history points, six convictions in tribal court that were not counted, and a larceny
offense while serving in the military. Tribal offenses are a proper basis for departure,
USSG § 4A1.3(a)(2)(A), and although many of the uncounted offenses in state and
tribal courts were driving offenses, “even offenses which are minor and dissimilar to
the instant crime may serve as evidence of the likelihood of recidivism if they evince
the defendant’s incorrigibility.” United States v. Agee, 333 F.3d 864, 867 (8th Cir.
2003). The district court thus did not abuse its discretion in relying on § 4A1.3 and
End of Horn’s criminal history as a factor in support of its upward departure.

       Section 5K2.1 authorizes a departure if death resulted from the defendant’s
offense conduct. The district court, addressing End of Horn’s assault on Brave Crow,
found that “[t]he medical evidence was conclusive that this vicious assault that the
Defendant perpetrated was the cause of her death.” This finding was not clearly
erroneous in light of substantial evidence showing that End of Horn committed the
assault, the coroner’s classification of Brave Crow’s death as homicide caused by
blunt force trauma, and a surgeon’s description of the amount of force required to
cause Brave Crow’s injuries. The degree of force used against Brave Crow supported
an inference that the perpetrator intended to cause death or knowingly risked that
result. The court thus did not abuse its discretion in relying on § 5K2.1 and Brave
Crow’s death as a factor supporting an upward departure.

                                 *      *       *

      The judgments of the district court are affirmed.
                     ______________________________

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