                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-4171
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Russell F. Eagle Bear, III,              *
                                         *
             Appellant.                  *
                                    ___________

                               Submitted: June 12, 2007
                                  Filed: November 5, 2007
                                   ___________

Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.
                              ___________

COLLOTON, Circuit Judge.

       A jury convicted Russell Eagle Bear of burglary, assault with a dangerous
weapon, and assault by striking, beating, or wounding. The jury acquitted Eagle Bear
on one count of assault with a dangerous weapon. He appeals the sufficiency of the
evidence on two of the counts, and challenges an evidentiary ruling of the district
court.1 We affirm.




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

       In December 2004, while on leave from the Marine Corps, Eagle Bear traveled
from California to South Dakota with his girlfriend, Sanya Mendez, and her infant
son. Eagle Bear spent the Christmas holiday with family and friends on the Rosebud
Indian Reservation, where he had grown up. Mendez testified that while driving home
after visiting a friend on Christmas night, Eagle Bear became angry at her because he
believed the friend had groped her. According to Mendez, Eagle Bear beat her as she
drove, punching her in the ribs and face. Mendez testified that upon arriving at their
destination (where they spent the night), Eagle Bear took Mendez and her son to the
basement and placed a gun in Mendez’s mouth. She said that he threatened to kill her
and her son if she told anyone about the beating in the car. Based on this incident, the
first count of the indictment in this case charged Eagle Bear with unlawfully
assaulting Mendez with a dangerous weapon. The jury ultimately acquitted Eagle
Bear on this count.

       Six days later, on December 31, 2004, the couple had returned to California,
and Mendez called police about another beating at the hands of Eagle Bear. In
addition to telling police about the incident that day, Mendez informed them of the
beating six days earlier in South Dakota. Eagle Bear eventually pled guilty, in a
separate proceeding, to making a criminal threat in connection with the California
incident.

      The second count of the indictment in this case accused Eagle Bear of
committing an assault resulting in serious bodily injury on Azure Morrison, Eagle
Bear’s cousin, on December 24, 2004. The jury convicted Eagle Bear of the lesser-
included offense of assault by striking, beating, or wounding Morrison. Eagle Bear
does not challenge this conviction on appeal.




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       The third count charged Eagle Bear with assaulting Arnetta “Rosie” Packard
with a dangerous weapon. Eagle Bear returned to the reservation in South Dakota on
January 2, 2005, where he resumed a relationship with Packard. For at least a week,
the couple remained together, first staying at a motel and later staying in the basement
of Melissa Poignee, Eagle Bear’s sister. On January 10, 2005, the couple returned to
Poignee’s basement from a party, and Eagle Bear questioned Packard about her
relationships with other men while Eagle Bear served in the military. The
prosecution’s theory was that Eagle Bear, unhappy with Packard’s response, hit her
in the face with a barbell from a weight-lifting set.

        Packard sustained serious injuries and was taken to the hospital by Poignee.
According to Officer Frank Iron Heart of the tribal police, Poignee told him at the
hospital that Eagle Bear had beaten Packard. The tribal police traveled to the Poignee
home, where they found blood in the basement, including on a barbell. The police
also found Eagle Bear asleep in the basement, and arrested him for assault. After the
tribal police took Eagle Bear into custody, Packard told Officer Iron Heart that Eagle
Bear had beaten her. At trial, however, Poignee denied telling Iron Heart that Eagle
Bear had beaten Packard. Packard likewise contradicted her statement to Iron Heart
and denied that Eagle Bear perpetrated the assault. Nonetheless, the jury convicted
Eagle Bear of assault with a dangerous weapon.

       The fourth count of the indictment accused Eagle Bear of committing burglary
in the early morning hours of October 28, 2005. Eagle Bear’s brother Gerald had just
learned that he had been defeated in his bid for a seat on the tribal council. At a party
the next morning, Gerald became offended when LeRoy Morrison, Jr., asserted that
everyone disliked Gerald and that he had lost the election because he did not show
respect for others. This remark upset Gerald, and when he told Eagle Bear about the
dispute, the two brothers decided to visit the Morrison home. The Morrisons testified
that the Eagle Bear brothers broke into the house, and that Eagle Bear assaulted



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LeRoy Morrison, Jr., and his brother Ashley. The jury convicted Eagle Bear of
burglary in connection with this incident.

                                           II.

      Eagle Bear challenges the district court’s decision to allow Mendez to testify
about the beating in California in December 2004. The district court initially
concluded that evidence of the California beating was “more prejudicial than
probative,” and granted Eagle Bear’s motion to exclude the evidence. At trial,
however, the court decided that Eagle Bear’s counsel had opened the door to this
inquiry by asking Mendez why she had waited several days to report the alleged
beating on December 25 in South Dakota. Eagle Bear argues that the evidence of the
California beating was highly prejudicial and was admitted solely to prove his
propensity to beat women.

       Evidence of other crimes or bad acts is admissible if it is “relevant to a material
issue” and if its “potential prejudice does not substantially outweigh its probative
value.” United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir. 2005). We review
the admissibility of such evidence for abuse of discretion. United States v. Voegtlin,
437 F.3d 741, 745 (8th Cir. 2006). We typically will reverse a conviction only if
“such evidence clearly had no bearing on the case and was introduced solely to prove
the defendant’s propensity to commit criminal acts.” Id. (internal quotation omitted).

      We conclude that the district court did not abuse its discretion in admitting
evidence of the California beating. Eagle Bear’s counsel was persistent in questioning
Mendez about why she failed promptly to report the alleged December 25 beating.
The cross-examination raised the issue whether Mendez’s delay in reporting the
incident suggested that she had fabricated the incident. By placing Mendez’s failure
to report the incident in issue, Eagle Bear’s counsel opened the door to testimony
regarding the December 31 assault. The latter beating prompted Mendez to report the

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alleged December 25 incident, and thus explained the timing of her report. The
disputed evidence thus had a purpose beyond simply proving Eagle Bear’s propensity
to beat women. The district court properly allowed the government to rehabilitate
Mendez’s credibility by having her describe the circumstances that prompted her to
report the alleged December 25 beating when she did.

       In any event, Eagle Bear was not prejudiced by the admission of this testimony.
The jury acquitted Eagle Bear of the December 25 beating, and it was for this count
that the danger of unfair prejudice was greatest. The district court specifically
instructed the jury that the evidence from Mendez “was received for the limited
purpose of considering why and when the alleged crime charged in Count I was
reported to law enforcement.” (R. Doc. 79, Instruction No. 11). Given the attenuated
connection between Mendez’s description of the December 31 beating and the other
charges involving different victims, there is no reasonable likelihood that Mendez’s
testimony – even if improperly admitted – swayed the jury on any count of conviction.

       Eagle Bear next challenges the sufficiency of the evidence to sustain the
conviction for assaulting Rosie Packard with a dangerous weapon. Eagle Bear points
out that Packard denied at trial that Eagle Bear had assaulted her, and instead testified
that she had been beaten by a gang of unidentified women on the night in question.
Eagle Bear maintains that without testimony from the victim of the alleged assault, the
government cannot prove that he committed assault with a dangerous weapon. “In
reviewing for sufficiency of the evidence, we view the evidence in the light most
favorable to the verdict, and we will overturn a conviction only if no reasonable jury
could have concluded that the defendant was guilty beyond a reasonable doubt on
each essential element of the charge.” United States v. Kenyon, 481 F.3d 1054, 1067
(8th Cir. 2007) (internal quotation omitted).

      Despite Packard’s trial testimony that Eagle Bear did not assault her, we
conclude that the jury’s verdict was supported by sufficient evidence. Packard

                                          -5-
admitted at trial that she reported the assault to Officer Iron Heart at the hospital,
where she asserted that Eagle Bear had beaten her after an argument in Poignee’s
basement. Poignee made a similar report to Iron Heart that implicated Eagle Bear.
This evidence was received without objection or limiting instruction, and its probative
value may therefore be considered as though the evidence were admissible in law.
United States v. Hugh Chalmers Chevrolet-Toyota, Inc., 800 F.2d 737, 739 (8th Cir.
1986). When the tribal police went to Poignee’s basement, they found Eagle Bear
asleep, and discovered a barbell with small amounts of blood on it. Investigators
compared the DNA profile of this blood to Packard’s and concluded that the two
samples matched. The initial reports to Officer Iron Heart by Packard and Poignee
that Eagle Bear committed the assault, combined with discovery of the bloodied
barbell in proximity to the sleeping Eagle Bear, support the jury’s conclusion. We
conclude that a reasonable jury could have relied on this evidence to convict Eagle
Bear of assaulting Packard with a dangerous weapon, and rejected Packard’s contrary
trial testimony as incredible.

       Eagle Bear also challenges the sufficiency of the evidence presented against
him with respect to the burglary count. Federal law incorporates state law with
respect to burglaries committed in Indian country. 18 U.S.C. § 1153. The elements
of burglary under South Dakota law require proof that the perpetrator unlawfully
entered or unlawfully remained in an occupied structure with intent to commit a crime.
South Dakota law requires an unlawful entry, but not necessarily a forced entry, to
violate the statute. S.D. Codified Laws § 22-32-1; State v. Peck, 150 N.W.2d 725, 727
(S.D. 1967). Eagle Bear argues that there was insufficient evidence on the element
of unlawful entry or remaining, because he was legally allowed into the Morrison
house.

      Four members of the Morrison household testified that the front door of their
house was locked, and that Eagle Bear and his brother entered without permission.
Eagle Bear counters that police found no evidence of forcible entry at the Morrison

                                         -6-
residence, that an investigating officer believed the Morrisons had left the door
unlocked, and that his brother, Gerald Eagle Bear, testified that the Morrisons had
allowed the pair into the house.

       When presented with conflicting testimony, of course, the jury was entitled to
weigh the credibility of the witnesses and determine the disputed facts. Whether or
not the door to the Morrison home was locked, the jury reasonably could have credited
the testimony of the Morrisons that none of them granted permission for the Eagle
Bear brothers to enter the house. This evidence was thus sufficient to establish an
unlawful entry by Eagle Bear.

                                  *      *       *

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




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