                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-4161
                                  ___________

                                       *
United States of America,              *
                                       * Appeal from the United States
                   Appellee,           * District Court for the
            v.                         * District of South Dakota.
                                       *
Lyman Gerald Crawford,                 * [PUBLISHED]
                                       *
                  Appellant.           *
                                  ___________

                             Submitted: June 22, 2005
                                 Filed: June 28, 2005
                                 ___________

Before RILEY, BOWMAN, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Lyman Gerald Crawford appeals his convictions for two counts of abusive
sexual contact and one count of aggravated sexual abuse of an eight-year-old minor,
in violation of 18 U.S.C. §§ 1153, 2241(c), 2244(a)(1), 2246(3). He argues the
district court1 should have granted two Batson challenges, excluded evidence of a
prior conviction, and instructed on simple assault as a lesser-included-offense of



      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
abusive sexual contact. Jurisdiction being proper under 28 U.S.C. § 1291, this court
affirms.

                                          I.

       Crawford, a Native American, alleges the government peremptorily struck the
only two Native Americans from the jury panel based on race. He claims an Equal
Protection violation. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). To prove this,
Crawford must make a prima facie case of discrimination – a showing that the
government's peremptory challenges were racially motivated. See United States v.
Meza-Gonzalez, 394 F.3d 587, 593 (8th Cir. 2005). Once a prima facie case is
shown, the government must produce a race-neutral explanation for the strike. Id.
The court decides whether the proffered reason is a pretext. Id. The district court's
determination that the peremptory challenges are race-neutral is reviewed for clear
error. United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990).

       The government stated that it struck juror number 11 because the juror's
brother-in-law pleaded guilty to molesting children or "something like this," and
because the juror twice said she knew who Crawford was but did not know him
personally. There is no Batson violation when a juror is dismissed because the juror's
relatives have been prosecuted or convicted of a crime, or where the juror has
knowledge of the defendant. Gibson v. Bowersox, 78 F.3d 372, 373-74 (8th Cir.
1996); Kilgore v. Bowersox, 124 F.3d 985, 992 (8th Cir. 1997).

       The government explained that it struck juror number 1 because the juror had
a DWI conviction. The government also feared the juror may have a bias against law
enforcement and not show up for jury service. A juror's bias or dissatisfaction with
law enforcement is a race-neutral reason for striking the juror. Gee v. Groose, 110
F.3d 1346, 1351 (8th Cir. 1997); United States v. Gibson,105 F.3d 1229, 1232 (8th
Cir. 1997).

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       A prior conviction is a race-neutral reason for dismissing a juror. United States
v. Plumman, 2005 WL 1309065, at *7-8 (8th Cir. June 3, 2005). Crawford argues
that the DWI-conviction proffer was pretext because the government did not strike
a similarly-situated white juror whose son had a DWI. Pretext may be shown where
"non-stricken white panel members share the characteristics of a stricken minority
panel member." United States v. Jenkins, 52 F.3d 743, 747 (8th Cir. 1995). A person
convicted of a crime is not similarly-situated to a person whose child has been
convicted of a crime. In addition, the government proffered a combination of reasons
for striking juror number 1, making juror number 1 and the white juror sufficiently
dissimilar. See Devoil-El v. Groose, 160 F.3d 1184, 1187 (8th Cir. 1998), cert.
denied, 525 U.S. 1163 (1999). Finally, Crawford presented no evidence the
government systematically excluded minorities from the jury panel. See Miller-El v.
Dretke, — S.Ct. ----, 2005 WL 1383365, at *8 (2005).

      The district court's finding that the government's peremptory challenges were
race-neutral is not clearly erroneous.

                                          II.

       Crawford argues that the district court erred by admitting, over objection,
evidence of his 1994 conviction for abusive sexual contact of an eight-year-old girl.
In sexual assault cases, proof of prior offenses for sexual assault is generally
admissible against the defendant. Fed. R. Evid. 413(a). Assuming the prior offenses
are relevant, Rule 413 supersedes Rule 404's prohibition against character evidence.
United States v. Mound, 149 F.3d 799, 801-02 (8th Cir. 1998), cert. denied, 525 U.S.
1089 (1999). Evidence admitted under Rule 413 is still subject to Rule 403, requiring
that the evidence's probative value outweigh the danger of unfair prejudice. Id. The
district court's evidentiary determination is reviewed for abuse of discretion. United
States v. Ballew, 40 F.3d 936, 941 (8th Cir. 1994).

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       The district court found Crawford's 1994 conviction relevant, and that its
probative value outweighed the danger of unfair prejudice. This court agrees. The
1994 conviction was relevant because it involved a similar crime – sexual assault of
an eight-year-old girl. See United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001).
The district court gave two cautionary instructions that the jury not consider the
conviction solely as propensity evidence. Limiting instructions decrease the danger
of unfair prejudice. United States v. Thomas, 398 F.3d 1058, 1063 (8th Cir. 2005).
Finally, there is "strong legislative judgment that evidence of prior sexual offenses
should ordinarily be admissible." United States v. LeCompte, 131 F.3d 767, 769 (8th
Cir. 1997). The district court did not abuse its discretion.

                                          III.

       Crawford asserts that he was entitled to a jury instruction on simple assault as
a lesser-included-offense of the two counts of abusive sexual contact. Crawford notes
that no Eighth Circuit precedent directly addresses when an instruction for simple
assault must be given in an abusive-sexual-contact case. Generally, an instruction on
a lesser-included-offense is appropriate where: (1) a proper request is made; (2) the
lesser-offense elements are identical to part of the greater-offense elements; (3) some
evidence would justify conviction of the lesser offense; (4) there is evidence such that
the jury may find the defendant innocent of the greater and guilty of the lesser-
included-offense; and (5) mutuality. United States v. Parker, 32 F.3d 395, 400-01
(8th Cir. 1994). The district court's decision whether to instruct on a lesser-included-
offense is reviewed for abuse of discretion. Id. at 400.

       Element (4) is at issue in this case. Crawford asserts that there is evidence such
that the jury may find him innocent of the greater offense – abusive sexual contact –
and guilty of the lesser offense of simple assault. Crawford emphasizes that simple
assault requires only a deliberately offensive touching of another without justification
or excuse. See United States v. Whitefeather, 275 F.3d 741, 743 (8th Cir. 2002). He

                                          -4-
contends there is evidence of such offensive touching, which does not also show the
intent necessary for abusive sexual contact: to "abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire." See 18 U.S.C. §§ 2244(a)(1), 2246(3). His
primary authority, United States v. Williams, 197 F.3d 1091, 1097 (11th Cir. 1999),
makes clear that to instruct on simple assault as a lesser-included-offense of abusive
sexual contact, there must be evidence that "the touching was not of a sexual nature."

        The district court had to decide – ignoring the testimony of the minor, a witness
(Crawford's son), and a physician – whether Crawford's evidence permits a
reasonable jury to find that his intent is not sexual. See United States v. Elk, 658 F.2d
644, 648-49 (8th Cir. 1981). In Crawford's initial statement to law enforcement
officers – elicited at trial – he stated that on two occasions he "accidentally slipped"
his finger into the minor's vagina while toweling her off after a shower. Crawford
first told the officers that he inserted his finger "just past the end of the fingernail."
He later indicated he went "to the first knuckle." Crawford also informed the officers
that because the minor was scratching herself in various locations on her body, he laid
her on the floor to inspect her vagina for rashes "on a couple of occasions." Finally,
while Crawford denied he forced the minor to touch his penis, he stated that "on at
least two occasions" he woke up during the night and the minor's "hand would be in
his underwear holding his penis." He claims "he had a partial erection" because the
minor "was moving her hand."

       Based on Crawford's evidence, a reasonable jury could not acquit him of
abusive sexual contact and find guilt only on simple assault. The district court did
not abuse its discretion by denying Crawford's request for a lesser-included-offense
instruction.

      The judgment of the district court is affirmed.
                      _____________________________



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