                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-3326
                                     ___________

Lemlem S. Kebede,                         *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
     v.                                   * District Court for the
Hayley R. Hilton,                         * District of South Dakota.
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: June 10, 2009
                                 Filed: September 4, 2009
                                  ___________

Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH,1 District Judge.
                            ___________

SMITH, Circuit Judge.

       Minnesota residents Lemlem S. Kebede and Ernest Christiansen married in
1998. While working in South Dakota in 2002, Christiansen began an extramarital
affair with Hayley R. Hilton, a coworker. Kebede and Christiansen divorced after
Kebede learned of the affair, and Kebede brought a diversity action in federal district
court against Hilton for alienation of affections under state law. At trial, the district




      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
court2 prohibited Kebede from introducing evidence of Hilton's affairs with two
coworkers other than Christiansen. The jury returned a verdict in Hilton's favor, and
Kebede argues on appeal that the district court erred in excluding evidence of Hilton's
other affairs. We reject Kebede's argument and affirm the judgment of the district
court.

                                 I. Background
       Kebede and Christiansen moved to Minnesota in 1995 and married in 1998.
Although Kebede characterized the marriage as a happy one, Christiansen testified
that the marriage was unhappy and that Kebede verbally and physically abused him.
In October 2001, Christensen accepted a contract position with the State of South
Dakota and moved to Aberdeen.

      In 2002, Christiansen began a sexual relationship with Hilton, a coworker in
Aberdeen who was also married at the time. When Christiansen's position in South
Dakota ended in August 2002, he returned to Minnesota but continued his relationship
with Hilton. Kebede learned of the affair in January 2003, and Christiansen filed for
divorce the following month. Kebede and Christiansen's divorce was finalized in
2004. Christiansen and Hilton ended their relationship in July 2005.

       In December 2005, Kebede brought an action against Hilton in district court for
alienation of affections. In her August 2007 deposition, Hilton testified that she had
affairs with two coworkers other than Christiansen. The first such affair, which
occurred prior to her affair with Christiansen, involved a married coworker. The
second such affair, which occurred in December 2002 (shortly after Christiansen
returned to Minnesota), involved a single coworker.




      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

                                         -2-
       Prior to trial, Hilton filed a motion in limine to exclude any evidence
concerning her "prior affairs or encounters with men other than her husband." The
district court granted Hilton's motion. During trial, Kebede requested that the court
permit her to question Hilton about her other affairs and made an offer of proof
consisting of Hilton's deposition testimony concerning those affairs. The court denied
Kebede's request, concluding that the evidence was irrelevant and "more prejudicial
than probative." The jury returned a verdict in Hilton's favor, and Kebede now
appeals.

                                     II. Discussion
       Kebede's sole argument on appeal is that the district court erred in excluding
evidence of Hilton's affairs with two coworkers other than Christiansen. "A district
court enjoys wide discretion in ruling on the admissibility of proffered evidence, and
evidentiary rulings should only be overturned if there was a clear and prejudicial
abuse of discretion." US Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 689–90 (8th
Cir. 2009) (internal citations and quotation marks omitted).

       Under South Dakota law, "[t]he elements of a claim for alienation of affection
are 1) wrongful conduct of the defendant, 2) loss of affection or consortium, and 3)
a causal connection between the wrongful conduct and the loss of affection or
consortium." Jones v. Swanson, 341 F.3d 723, 732 (8th Cir. 2003) (citing Hunt v.
Hunt, 309 N.W.2d 818, 820 (S.D. 1981)). "'The gravamen of an action for alienation
of affection . . . is enticement. It is based on an intentional tort, not negligence. The
acts which lead to the loss of affection must be wrongful and intentional, calculated
to entice the affection of one spouse away from the other . . . .'" Id. (quoting Pankratz
v. Miller, 401 N.W.2d 543, 549 (S.D. 1987)). "'[A]ctual intent to alienate the affection
of the spouse of another need not necessarily be shown if defendant's conduct is
inherently wrong and tends to, and does, have that effect. In other words every person
is presumed to intend the consequences of his own voluntary acts.'" Id. (quoting
Pearsall v. Colgan, 76 N.W.2d 620, 621 (S.D. 1956)). "'[I]f it appears there was no

                                          -3-
affection to alienate, recovery is precluded.'" Id. (quoting Pankratz, 401 N.W.2d at
546).

        Kebede first argues that the evidence of Hilton's affairs with two coworkers
other than Christiansen "tended to show Hilton's propensities for this type of activity."
But subject to exceptions not relevant in this case, "[e]vidence of a person's character
or a trait of character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion." Fed. R. Evid. 404(a). The evidence of Hilton's
other affairs is not admissible to prove that Hilton had a propensity to have affairs.

       Kebede also argues that the evidence of Hilton's affairs with two coworkers
other than Christiansen was admissible to demonstrate intent, relying on Veeder v.
Kennedy, 589 N.W.2d 610 (S.D. 1999).3 In Veeder, the plaintiff brought an action
against the defendant for alienating the affections of the plaintiff's ex-wife. Id. at 612.
Following a jury verdict in the plaintiff's favor, the defendant argued on appeal that
the trial court erred in admitting evidence that (1) "he had an affair with a fellow
employee in the 1970's"; (2) "[t]his affair lead to the breakup of both their marriages";
and (3) "[he] and the employee were eventually married." Id. at 613, 619.

       The South Dakota Supreme Court held that the evidence was relevant to
demonstrate the defendant's intent, reasoning as follows: "Alienation of affections is
an intentional tort and it was necessary for [the plaintiff] to prove intent to proceed
with his case. . . . As the defendant rarely admits the crucial element of intentional
wrongful conduct, it must be established by the plaintiff through circumstantial
evidence to avoid being nonsuited." Id. at 620. The court noted that "the trial court
correctly included the proper limiting instruction, advising the jury that this evidence
was received for the purpose of aiding the jury in determining whether [the defendant]

      3
       Federal Rule of Evidence 404(b) provides that although "[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order
to show action in conformity therewith," it may be admitted to prove intent.

                                           -4-
had the intent required to find him liable and the information could not be used for any
other purpose." Id.

        Kebede reads Veeder as standing for the proposition that evidence of another
affair is always relevant in an alienation of affections case, but Kebede applies
Veeder's holding too broadly. In Veeder, (1) the defendant's affair with his coworker,
which the plaintiff sought to introduce into evidence, occurred prior to the affair with
the plaintiff's spouse—the root of the alienation of affections action; (2) the prior
affair lead to the breakup of the coworker's marriage; and (3) the defendant, who
eventually married his coworker, was presumably aware that the affair lead to the
breakup of his coworker's marriage. It could thus rationally be inferred that the
defendant entered into the subsequent affair with the same goal. See Blaylock v.
Strecker, 724 S.W.2d 470, 475 (Ark. 1987) (holding that evidence of the defendant's
prior affair was admissible to prove intent in an alienation of affections action because
it had "independent relevance to show that [the defendant] knew the result of the first
affair, and therefore, entered the [subsequent] relationship with the conscious purpose
of causing the same result").

        But, in this case, Keb`ede points to no evidence in the record that Hilton either
alienated the affections of the other coworkers with whom she had affairs or was
aware that her coworkers' affections had been alienated. Id. Evidence of Hilton's other
affairs would only prove intent if it were shown that she knew, based on those affairs,
that alienation was the likely result of her actions with Christiansen. In the absence of
such proof, evidence of Hilton's other affairs would have only been relevant to prove
that she had a propensity for having affairs, which is a prohibited purpose under Rule
404(a). Even assuming that evidence of Hilton's other affairs was relevant, without
additional evidence establishing her intent, evidence of the affairs would be unfairly
prejudicial and could be ruled inadmissible on that ground. On this record, the district




                                          -5-
court did not abuse its discretion in excluding evidence of Hilton's affairs with two
coworkers other than Christiansen.4

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




      4
          We also note that even if evidence of the other affairs was more probative than
prejudicial, the case would not likely have resulted in a different outcome by the
district court's admission of such evidence. A close review of the trial transcript
reveals considerable testimony from multiple witnesses suggesting that there was very
little affection and, in fact, a fair amount of emotional, verbal, and physical abuse by
the plaintiff, Kebede, towards her husband. Because the record reflects that the state
of the marriage was a much greater point of contention in this particular case, we
cannot see how introducing evidence of the other affairs would have accomplished
much more than character assassination. The evidence of the other affairs was not at
the heart of the matter in this case; therefore, the district court was well within his
discretion to exclude the evidence as overly prejudicial.

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