                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3749
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Orlando James Lasley

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                           for the District of Nebraska
                                  ____________

                           Submitted: October 24, 2018
                             Filed: February 27, 2019
                                    [Published]
                                  ____________

Before ERICKSON, BEAM, and GRASZ, Circuit Judges.
                           ____________

PER CURIAM.

       Orlando James Lasley appeals from his assault convictions, arguing that the
district court erred by admitting certain evidence and by constructively amending the
indictment through a supplemental jury instruction. We agree the jury instruction
constructively amended the indictment, and therefore vacate Lasley’s conviction and
remand for a new trial.
                                   I. Background

       Lasley and his girlfriend Marlena Griffin (“Marlena”) lived in the garage of his
mother’s house on Skunk Hollow Road in Macy, Nebraska. Lasley and Marlena had
dated for four to five years and lived together for a couple of years. On the night of
June 3, 2017, Marlena suffered an eye injury and a broken arm that she alleged Lasley
inflicted on her. Lasley conceded that he inflicted the eye injury but disputed that he
broke her arm.

       In July 2017, a grand jury indicted Lasley on two counts: (1) assault resulting
in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153, and
(2) assault of an intimate partner and dating partner resulting in substantial bodily
injury, in violation of 18 U.S.C. §§ 113(a)(7) and 1153.

      On September 11, 2017, Lasley filed a motion in limine, which in relevant part
sought to entirely exclude testimony from Marlena’s sister Renee (because she was
only disclosed as a witness on September 7, 2017) or at least to exclude her testimony
about what a minor, J.B., told her, on the basis it was inadmissible hearsay and
excludable under Fed. R. Evid. 403. The district court denied the motion without
prejudice to renewing the objection at trial.

       Trial began on September 12, 2017. Several witnesses testified about the night
in question, but the only corroboration for Marlena’s version of events was her sister
Renee’s recollection of a statement by J.B. Specifically, Renee recalled that J.B. said,
“You need to go check on your sister at my grandma’s ‘cause my uncle was beating
her up behind my grandma’s.” At a sidebar, Lasley objected to the evidence, and the
Government argued it could demonstrate the statement was an excited utterance, or
alternatively, could offer the statement as an explanation of “why [Renee] did what
she did at the residence.” The district court stated that after hearing Marlena’s

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testimony, it had no reason to believe that J.B. witnessed anything in the bedroom
such that it would be an excited utterance, but the district court would admit the
statement as a basis for Renee’s later conduct with a limiting instruction to that effect.
Lasley objected to the latter ruling.

       During deliberations at the end of trial, the jury asked the district court: “The
jury would like to know does [sic] the face injury enough to convict on Both counts
or is the arm one count and eye another count.” The district court answered, over
Lasley’s objection, “You may consider any injuries allegedly suffered by Marlena
Griffin in connection with both counts.” After further deliberation, the jury found
Lasley guilty on both counts.

       Lasley timely appealed, asserting the district court erred in overruling both of
his objections discussed above. He seeks a new trial on the bases that (1) the district
court’s answer to the jury’s question constructively amended the indictment and (2)
J.B.’s statement offered through Renee’s testimony was inadmissible hearsay that
substantially affected the verdict.

                                      II. Analysis

A.    Constructive Amendment of the Indictment

       We first address Lasley’s challenge to the instruction given to the jury in
response to its question regarding what injury or injuries it could consider. This court
reviews jury instructions for abuse of discretion. United States v. Jenkins, 792 F.3d
931, 935 (8th Cir. 2015) (reviewing supplemental jury instruction). “[C]onstitutional
problems may arise if a variance or a constructive amendment to the indictment
occurs.” United States v. Starr, 533 F.3d 985, 996–97 (8th Cir. 2008). “A
constructive amendment occurs when the essential elements of the offense as charged
in the indictment are altered in such a manner . . . that the jury is allowed to convict

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the defendant of an offense different from or in addition to the offenses charged in the
indictment.” Id. at 997 (quoting United States v. Whirlwind Soldier, 499 F.3d 862,
870 (8th Cir. 2007)). “In reviewing an appeal based on a claim of constructive
amendment, we consider whether the admission of evidence or the jury instructions
created a substantial likelihood that the defendant was convicted of an uncharged
offense.” Id. (quoting same).

       When the district court instructed the jury that it was not limited to the arm
injury, the district court constructively amended the indictment to include assault
counts based on the eye injury. Count I states Lasley “did kick and strike M.G.,
causing extreme pain and breaking M.G.’s arm, by causing an ulnar fracture.” ECF
No. 1 at 1. Count II similarly states Lasley “did kick and strike M.G., breaking
M.G.’s arm, by causing an ulnar fracture.” Id. We do not fault either the jury or the
district court for the apparent confusion over the wording and structure of the
indictment. However, based on the text of the indictment, and in light of Sixth
Amendment concerns that would be implicated by affording the text a meaning
broader than its plain terms, we read both of these counts as specifying the arm injury.
Thus, when the jury asked, “does [sic] the face injury enough to convict on Both
counts or is the arm one count and eye another count,” the district court should have
instructed the jury that it needed to consider the arm injury on both counts. Instead,
the district court instructed, “You may consider any injuries allegedly suffered by
Marlena Griffin in connection with both counts.” In fairness to the district court, the
instruction was likely proper on the statute charged. Because the indictment carried
further limitations than the statute, though, the instruction constructively amended the
indictment.

      We need not resolve whether constructive amendment is error per se or is
reviewed for harmless error because we would find reversible error even if harmless




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error analysis were necessary.1 As the Fifth Circuit has explained, “[a general
unanimity] instruction will be inadequate to protect the defendant’s constitutional
right to a unanimous verdict where there exists a ‘genuine risk that the jury is
confused or that a conviction may occur as the result of different jurors concluding
that a defendant committed different acts.’” United States v. Holley, 942 F.2d 916,
926 (5th Cir. 1991) (quoting United States v. Duncan, 850 F.2d 1104, 1114 (6th Cir.
1988)). The jury’s question strongly suggests that it was confused about which
injuries were part of the indictment. By expanding the cognizable injuries for
conviction, the district court allowed the jury to convict Lasley based on either (1) his
admitted conduct rather than the charged injury or (2) a mixture of both. Either result
was prejudicial to Lasley because his defense strategy was admitting he caused the
eye injury that was not charged in the indictment. Thus, reversal and a new trial are
warranted here.

      Because we are ordering a new trial, we will briefly address the other issue on
appeal. See MDU Res. Grp. v. W.R. Grace & Co., 14 F.3d 1274, 1282 (8th Cir. 1994)
(providing comments as guidance for a new trial); Henry v. Chloride, Inc., 809 F.2d
1334, 1343 (8th Cir. 1987) (addressing secondary issue on appeal as guidance for a
new trial).




      1
       This court has repeatedly said that “a constructive amendment is reversible
error per se,” United States v. Johnson, 719 F.3d 660, 668 (8th Cir. 2013) (quoting
United States v. Farish, 535 F.3d 815, 822 (8th Cir. 2008)), although at least one
panel has observed that the per se rule exists only in repeated dicta and may be
inconsistent with Supreme Court precedent, United States v. Gill, 513 F.3d 836, 850
(8th Cir. 2008). If constructive amendment is not error per se, then this court would
review it for harmless error. See Gill, 513 F.3d at 850.

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B.    Hearsay Testimony

       This court reviews evidentiary rulings for abuse of discretion. United States
v. Lomas, 826 F.3d 1097, 1105 (8th Cir. 2016) (reviewing evidentiary rulings). In
addition, “[a] district court’s error in admitting hearsay evidence is harmless if the
‘error did not influence or had only a very slight influence on the verdict.’” Id.
(quoting United States v. Burch, 809 F.3d 1041, 1045 (8th Cir. 2016)).

       J.B.’s statement was inadmissible hearsay because her actual words were
unnecessary to prove why Renee went to her sister’s house and because the
Government’s only plausible purpose for introducing the actual words was to prove
the truth of the matter asserted. We have previously found testimony to constitute
inadmissible hearsay when “the prosecutor need not have introduced what was
actually said” in order to prove the supposed fact at issue. United States v.
Bettelyoun, 892 F.2d 744, 746 (8th Cir. 1989). In Bettelyoun, a witness testified she
heard on a radio at the police station that the defendant shot a female. Id. at 745. The
district court admitted the testimony to show the sequence of events. Id. This court
stated that the content of the radio message was unnecessary to show the timing of
events and found that admission of the message was error. Id. at 746. Similarly, in
this case, a general explanation that J.B. told Renee to check on her sister would have
accomplished the same purpose without unfair prejudice. Thus, we find the
Government offered the evidence for the truth of the matter asserted despite the
supposed limited purpose.

      Whether admission of this hearsay evidence was harmless error is a close
question. On two prior occasions, we have stated inadmissible hearsay recollecting
a victim’s prior statement was not harmless where it was the only evidence
corroborating the victim’s trial testimony. See United States v. Bercier, 506 F.3d 625,
633 (8th Cir. 2007); United States v. Kenyon, 397 F.3d 1071, 1082 (8th Cir. 2005).
The hearsay evidence here recollected J.B.’s alleged statements, not Marlena’s,

                                          -6-
distinguishing those cases. The district court here also gave a limiting instruction on
the statement, and we presume juries follow instructions in a criminal case. United
States v. Levine, 477 F.3d 596, 604–05 (8th Cir. 2007). Lasley argues that we should
adopt the rule from one of our sister circuits that a limiting instruction is unlikely to
protect against highly prejudicial information when that information went to the heart
of the prosecution’s case. See United States v. Nelson, 725 F.3d 615, 622 (6th Cir.
2013). We need not decide, however, whether to adopt the Sixth Circuit’s rule today
because we are reversing on other grounds.

                                   III. Conclusion

      The supplemental instruction to the jury constructively amended the
indictment. Consequently, we vacate Lasley’s conviction and remand the case for a
new trial.
                    ______________________________




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