                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1340
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                          Timothy Kenneth White Plume

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                            Submitted: October 21, 2016
                              Filed: February 2, 2017
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
                             ____________

BENTON, Circuit Judge.

       A jury convicted Timothy Kenneth White Plume of assault resulting in serious
bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and child abuse in
violation of 18 U.S.C. § 1153 and South Dakota Codified Laws §§ 26-10-01 and
26-8A-2(3) and (6). White Plume asserts: (1) insufficiency of the evidence, (2) abuse
of discretion in excluding evidence of past child abuse by his wife, and (3)
precluding confrontation about his wife’s past child abuse. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.

                                          I.

       On the afternoon of December 8, 2012, White Plume was at home with his wife
Natalie and her infant grandson, L.L. Natalie was baking in the kitchen. White
Plume was watching television with L.L. in the bedroom. Later that afternoon, White
Plume became angry and visibly upset after Natalie accused him of infidelity. Shortly
after 4:30 p.m., White Plume came out of the bedroom holding L.L., concerned
something was wrong.

       L.L. suffered significant, acute head trauma and a leg fracture. The complex
skull fractures were caused by force like a fall from a roof to a concrete surface.
L.L.—now blind, deaf, and severely cognitively impaired—has little chance of ever
walking or talking.

       White Plume initially denied responsibility. He suggested that a skin bump on
L.L.’s head may have been responsible. Later, he said Natalie had dragged L.L.
across the bed by his leg. White Plume eventually said he picked up and threw down
the bed in anger, causing L.L. to fall off. White Plume, in a note for officers,
apologized for what happened to L.L. At trial, he testified he never saw L.L. fall off
the bed, instead claiming to black out shortly after arguing with Natalie. The next
thing he remembered was standing in the bedroom with the box spring on top of his
foot, with L.L. on the ground making a “gurgling” sound.

      During a pre-trial conference editing the transcript of an audio recording of
White Plume’s polygraph, he objected to the removal of this exchange with officers:




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      Q: Did the children or have your children been taken away from you?
      None of Natalie’s children have been taken away before.

      A: Yeah, her son did.

      Q: Okay. For what reason?

      A: For her child abuse.

      Q: What did she do?

      A: Started spanking him; spanking is not legal.

White Plume pointed to evidence that Natalie spent three days in tribal jail for abuse.
The district court1 excluded the exchange and anything about Natalie’s abuse as
propensity evidence barred by Federal Rule of Evidence 404(b). The court precluded
any cross-examination of Natalie about her prior child abuse.

                                          II.

      White Plume challenges the sufficiency of the evidence. This court, on de
novo review, views “the evidence in a light most favorable to the verdict and
accept[s] all reasonable inferences supporting the verdict.” United States v. Jenkins,
792 F.3d 931, 934 (8th Cir. 2015). This court reverses “only if no reasonable jury
could have found guilt beyond a reasonable doubt.” United States v. Gray, 700 F.3d
377, 378 (8th Cir. 2012). A “verdict may be based in whole or in part on
circumstantial evidence.” United States v. White, 794 F.3d 913, 918 (8th Cir. 2015).

       White Plume agrees the injuries were severe, acute, and non-accidental. Most
of his accounts include harming L.L. White Plume’s and Natalie’s testimony puts


      1
       The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

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White Plume alone with L.L. immediately before the injury. A drastic change in a
child’s condition while alone with the defendant sufficiently supports an inference
of the defendant’s guilt. Id. at 919-20. See United States v. Iron Hawk, 612 F.3d
1031, 1037 (8th Cir. 2010) (holding a non-accidental, acute injury during defendant’s
sole custody was sufficient to support conviction); United States v. Red Bird, 450
F.3d 789, 793 (8th Cir. 2006) (same).

       White Plume’s apology note supports his guilt, as does his statement he was
not blaming Natalie for L.L.’s injuries. His inconsistent accounts—different roles,
none explaining L.L.’s injuries—support an inference that he was “seeking to develop
an explanation to cover up [his] own misconduct in causing injury to [L.L.]” See id.
See also White, 794 F.3d at 921.

      The evidence sufficiently supports the verdicts.

                                          II.

      White Plume challenges excluding evidence of Natalie’s prior child abuse. He
claims it was res gestae and reverse 404(b) evidence. This court reviews a “district
court’s evidentiary rulings for clear abuse of discretion.” United States v. Webster,
797 F.3d 531, 537 (8th Cir. 2014).

       White Plume wanted to introduce the exchange with officers about Natalie’s
prior child abuse. He offered tribal records of the abuse and a court order that Natalie
take anger-management classes. The Government countered with evidence that
White Plume was involved in the abuse. White Plume also sought to introduce a
tribal child-welfare-agency report that neighbors had seen and heard other abuse of
Natalie’s son. The Government countered with a different report suggesting White
Plume was involved in a yet another incident of neglect.




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                                          A.

       Res gestae, or intrinsic evidence, is “evidence of wrongful conduct other than
the conduct at issue . . . offered for the purpose of providing the context in which the
charged crime occurred.” United States v. Campbell, 764 F.3d 880, 888 (8th Cir.
2014). It is not governed by Rule 404(b), but is admissible because it “completes the
story or provides a total picture of the charged crime.” United States v. Brooks, 715
F.3d 1069, 1076 (8th Cir. 2013) (holding cell-phone videos and photos of defendant
were intrinsic because they showed the cell phone belonged to defendant, linking him
to the stolen vehicle where the cell phone was found). See United States v. Payne-
Owens, No. 15-3445, 2017 WL 31425, at *2 (8th Cir. Jan. 4, 2017) (holding a hand
gesture and slang words on Facebook were intrinsic, providing the total picture of
unlawful possession of a firearm).

       White Plume argues the prior child-abuse evidence is res gestae, giving context
to the history of abuse in the household and to older injuries to L.L. (when White
Plume may not have been at home).

       Natalie’s prior child abuse did not involve L.L. The force causing the other
injuries is not consistent with the charged crime. White Plume testified he had never
seen Natalie hurt L.L. The prior child-abuse evidence does not “tend[] logically to
prove any element of the crime charged,” so it is not “an integral part of the
immediate context of the crime charged.” See United States v. Cook, 842 F.3d 597,
601 (8th Cir. 2016).

                                          B.

      Evidence of prior acts “may be admissible for another purpose [other than
propensity], such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2). White Plume proffers reverse 404(b) evidence “introduced by the

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defendant and offered to implicate [a] third party in the charged crime.” United
States v. Battle, 774 F.3d 504, 512 (8th Cir. 2014).

      White Plume cannot establish the required non-propensity purpose. He argues
that Natalie’s prior acts are relevant to the question “which of the two adults in the
household committed that criminal acts of felony assault and child abuse against
Natalie White Plume’s grandson, L.L.” White Plume says the prior acts show “it was
more likely that Natalie White Plume” committed the crime. As the district court
found, this evidence seeks to establish that because Natalie had abused a child before,
she was more likely to abuse L.L. on December 8. This is propensity evidence barred
by Rule 404(b). See id. at 513 (holding “non-propensity purpose” required for
admissibility under Rule 404(b)).

      White Plume claims the evidence shows Natalie’s state of mind, specifically
her intent and motive. But, Natalie’s state of mind was not at issue. Whoever
committed the crime intended to do it. Evidence of prior acts establishing intent is
admissible when a party “places his state of mind at issue,” United States v. Turner,
583 F.3d 1062, 1066 (8th Cir. 2009), but not admissible when “intent [is] not a
serious issue.” United States v. LeCompte, 99 F.3d 274, 279 (8th Cir. 1996).

       White Plume asserts that the evidence shows Natalie’s motive, when
overwhelmed by childcare, to abuse young children in the household. There was no
showing she was angry or overwhelmed on December 8. Any connection between
the past acts and L.L.’s injuries is speculative. Because there were conflicting
accounts whether White Plume was involved in the prior child abuse, with both
parties alleging additional abuse, the district court did not abuse its discretion by
“focusing the trial on the offense at issue.” Battle, 774 F.3d at 514 (finding no abuse
of discretion due to potential for distraction “in conducting mini trials on the detailed
facts” of offenses sought to be introduced, compared to their low probative value).
See United States v. Condon, 720 F.3d 748, 755 (8th Cir. 2013) (stating a district


                                          -6-
court has considerable discretion in “determining whether proffered evidence is
misleading or confusing”).

       According to White Plume, the evidence shows the identity of the abuser. The
similarity standard for identity requires a “much greater degree of similarity between
the charged crime and the uncharged crime . . . than when it is introduced to prove a
state of mind.” LeCompte, 99 F.3d at 278. The charged crime and the prior abuse
involve different victims, different injuries, and different degrees of severity. That
they are both child abuse does not show they were carried out in an “unusual and
distinctive manner.” See id. See also Battle, 774 F.3d at 513 (running from officers
when confronted and carrying a weapon is too generic for modus operandi); United
States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000) (that “the perpetrator wore a
nylon stocking mask, carried a gun, and vaulted over the counter” in two bank
robberies was not sufficiently similar for an identity argument). The district court did
not abuse its discretion in excluding the prior-acts evidence.

                                           III.

       The court did not allow White Plume to cross-examine Natalie about her prior
child abuse. He asserts a violation of the Confrontation Clause. This court reviews
“evidentiary rulings regarding the scope of a cross examination for abuse of
discretion, but where the Confrontation Clause is implicated, we consider the matter
de novo.” United States v. Williams, 796 F.3d 951, 960 (8th Cir. 2015). The
Confrontation Clause “guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” United States v. Jasso, 701 F.3d 314, 316 (8th Cir. 2012)
(emphasis in original), quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per
curiam). District courts “retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based on concerns
about . . . prejudice, confusion of the issues . . . or interrogation that is repetitive or


                                           -7-
only marginally relevant.” United States v. Dale, 614 F.3d 942, 956 (8th Cir. 2010),
quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

         White Plume argues that the proposed cross-examination impeaches Natalie’s
credibility by showing she dealt with stress by becoming violent and wanted to shift
the blame for L.L.’s injuries to White Plume. As discussed, the prior child abuse has
little, if any, probative value. White Plume did not show she was overwhelmed by
childcare on December 8, providing only speculation to connect the incidents. See
Williams, 796 F.3d at 961 (preventing cross-examination on a speculative theory of
bias with no good-faith basis is not an abuse of discretion). The district court
properly weighed the low probative value against the potential confusion of the
issues. See Condon, 720 F.3d at 755 (“Confusion of the issues warrants exclusion
of relevant evidence if admission of the evidence would lead to litigation of collateral
issues.”).

       White Plume believes he was completely precluded from impeaching Natalie
for bias. See Van Arsdall, 475 U.S. at 679. In fact, White Plume cast doubt on her
credibility many ways. He examined her about her recent conviction for making a
false statement to the government. He also highlighted several inconsistencies in her
testimony, including her denial to officers of any argument on December 8 and her
changing story whether White Plume helped in the kitchen. See United States v.
Drapeau, 414 F.3d 869, 876 (8th Cir. 2005) (holding no Confrontation Clause
violation in limiting cross-examination because the witness’s credibility was still
challenged). The district court’s limit on Natalie’s cross-examination was reasonable.
There was no Confrontation Clause violation.

                                     *******

      The judgment is affirmed.
                     ______________________________


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