                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3143
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Jerry Medicine Horn,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 14, 2006
                                 Filed: May 18, 2006
                                  ___________

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
                             ___________

BOWMAN, Circuit Judge.

        Jerry Medicine Horn appeals his conviction for two sexual offenses committed
against a minor in Indian country. He argues that the District Court1 erred in
admitting testimony regarding two prior sexual assaults and in giving an instruction
to the jury on the unavailability of intoxication as a defense to the crimes charged. We
affirm the conviction.




      1
        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota.
                                         I.

      In November 2004, a four-count superseding indictment was filed against
Medicine Horn. Counts 1 and 2 alleged acts of sexual abuse against a minor, EFH,2
and charged Medicine Horn with aggravated sexual abuse in violation of 18 U.S.C.
§ 2241(a) and sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). Counts 3
and 4 alleged similar acts of sexual abuse against a second minor, CC, and charged
Medicine Horn with committing the same two crimes.

        A jury trial was held in April 2005. The evidence presented during the trial
showed that on April 3, 2004, EFH, who was then fifteen years old, and Medicine
Horn both attended a party that moved to several locations during its course. The
party began at approximately 10:00 p.m. near Lake Andes, South Dakota, in a rural
field known by the witnesses as "Moonlight." It then progressed to a parking lot and
to a dirt road before arriving south of Lake Andes at the residence of Roy Wade. Both
EFH and Medicine Horn were drinking alcohol during the party. At approximately
4:00 a.m. on April 4, 2004, as the party was thinning, EFH asked Kyle Nelson to drive
her back to Lake Andes. Nelson agreed. Medicine Horn then approached Nelson and
requested a ride. Nelson again consented, and the three drove towards Lake Andes.
Because Nelson did not wish to drive into town, he dropped the two passengers at the
powwow grounds near the Lake Andes tribal housing area. At the powwow grounds,
EFH and Medicine Horn walked to the announcer's booth. Therein, Medicine Horn
removed EFH's right shoe, took her right leg out of her pants and underwear, and
forcibly engaged her in sexual intercourse. The assault lasted approximately five
minutes, after which Medicine Horn left.3


      2
         We refer to all witnesses who were minors at the time of the events by their
initials.
      3
        Medicine Horn's defense at trial was that he never had sex with EFH. He
testified that once at the powwow grounds, EFH asked to go home with him. He

                                         -2-
       Evidence was also presented that in March 2004 a small group of people
gathered at a building on the powwow grounds to drink alcohol. CC, who was then
thirteen years old, and Medicine Horn were both present and were eventually the only
two people remaining in the building. High on drugs and alcohol, CC blacked out.
When she awoke, she was alone, her shirt was ripped, her pants and underwear were
down, she was bleeding from her vagina, and her jaw was sore. CC testified that she
believes Medicine Horn forced sexual intercourse on her that night.

       The District Court permitted the government to introduce the testimony of two
additional witnesses, SA and AP, who claimed to have been sexually assaulted by
Medicine Horn when they were minors. SA testified that on October 22, 1995, when
she was seventeen years old, she met Medicine Horn at a party. Later that evening she
went to the mobile home of Medicine Horn's brother and settled herself on the couch
to sleep. Medicine Horn arrived and twice forced her to have sexual intercourse with
him. Medicine Horn stopped her from crying out for help. AP testified that in 2001
or 2002, when she was fourteen or fifteen years old, she fell asleep on a couch during
a party. She awoke to Medicine Horn having sexual intercourse with her. When she
protested, Medicine Horn covered her mouth with his hand.

       The jury convicted Medicine Horn of the sexual abuse charges involving EFH
but acquitted him of the charges involving CC. Medicine Horn appeals his conviction.

                                         II.

      Medicine Horn first challenges the District Court's admission, over objection,
of SA's and AP's testimony of the prior sexual assaults.




denied her request and, after a few moments of talking, walked home alone.

                                         -3-
       Although Federal Rule of Evidence 404(b) generally excludes the admission
of evidence of a defendant's past wrongs to show his propensity to commit a charged
offense, "Congress excepted sexual assault cases from this rule when it enacted
Federal Rule of Evidence 413." United States v. Tyndall, 263 F.3d 848, 850 (8th Cir.
2001). Rule 413 states that in sexual assault cases, evidence of a defendant's prior
commission of sexual assault is admissible and "may be considered for its bearing on
any matter to which it is relevant." Fed. R. Evid. 413(a). Before evidence of a prior
sexual assault may be admitted under Rule 413, however, the trial court must still
apply the balancing test set forth in Federal Rule of Evidence 403 and determine that
the probative value of the evidence is not "substantially outweighed by the danger of
unfair prejudice." Fed. R. Evid. 403; see also United States v. Crawford, 413 F.3d
873, 875 (8th Cir. 2005).

       Medicine Horn argues that, in light of infirmities in the Rule 413 evidence, the
District Court reached the wrong result in performing the Rule 403 balancing test.
Regarding the incident with SA, Medicine Horn asserts that the ten-year time lapse
between the incident and the trial in this case caused the memories of the witnesses
to the incident (including SA and Medicine Horn) to fade, thereby prejudicing his
ability to rebut SA's claims. Regarding the incident with AP, Medicine Horn asserts
that AP's testimony was not probative because AP could not identify the year in which
the alleged assault occurred and because AP contradicted herself and the testimony
of other witnesses. According to Medicine Horn, the testimony of both SA and AP
was so flawed that it was of little probative value and unfairly prejudiced him.

       District courts are given broad discretion in gauging the possibility of unfair
prejudice under Rule 403, and we will reverse only if a district court abuses this
discretion. United States v. Henderson, 416 F.3d 686, 693 (8th Cir. 2005), cert.
denied, 126 S. Ct. 1343 (2006); see also Crawford, 413 F.3d at 875–76; United States




                                         -4-
v. Blue Bird, 372 F.3d 989, 991 (8th Cir. 2004).4 In reviewing the District Court's
decision, we keep in mind that 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).

      Recognizing the constraints imposed by Rule 403, the District Court first heard
testimony from SA and AP outside of the jury's presence. The District Court then
carefully analyzed the evidence and concluded that it was admissible because its
probative value was not substantially outweighed by the danger of unfair prejudice.
The District Court did not abuse its discretion in admitting the evidence of Medicine
Horn's past sexual assaults. We agree with the District Court that the Rule 413
evidence was probative because it involved substantially similar offenses as the crimes
charged: all four of the alleged victims were teenage girls at the time of the assaults,
each assault occurred after a party at which the victim consumed alcohol, Medicine
Horn removed the victims' pants on each occasion, and Medicine Horn used force on
each occasion and stopped the victims from crying out. See Crawford, 413 F.3d at
876 (holding that evidence of similar sexual assault was probative and relevant).
Though Medicine Horn identifies several flaws in the testimony of AP and SA, it was
within the province of the jury to evaluate the testimony and attribute to it whatever
weight the jury deemed appropriate. See United States v. Kenyon, 397 F.3d 1071,
1076 (8th Cir. 2005). And while Medicine Horn asserts that the evidence of his prior
sexual assaults led the jury to decide the case based on the fact that he was a "bad
person," the inflammatory potential inherent in the sexual nature of prior sexual


      4
       Medicine Horn argues that under Blue Bird the District Court's Rule 403
balancing determination is subject to de novo review. We do not read Blue Bird to
so hold. The Blue Bird Court noted that we accord deference to a trial judge's
determinations made pursuant to "rules [that] require a balancing of how particular
evidence might affect the jury." 372 F.3d at 991. The Court specifically cited Rule
403 as an example of a rule mandating such a discretionary balancing to which we
must accord deference. Id.

                                          -5-
offenses cannot be considered in evaluating the admissibility of evidence under Rule
413. See LeCompte, 131 F.3d at 770; see also Henderson, 416 F.3d at 693 ("Evidence
is not unfairly prejudicial merely because it hurts a party's case.” (internal quotation
marks and citation omitted)). The question is not whether the evidence was
prejudicial—it certainly was for the same reason that it was probative, i.e., it tended
to prove Medicine Horn's propensity to sexually assault minors—but whether the
evidence was unfairly prejudicial. See United States v. Gabe, 237 F.3d 954, 960 (8th
Cir. 2001). We conclude that it was not. It is significant that the District Court gave
limiting instructions, both before SA and AP testified and at the close of evidence,
advising the jury not to consider the Rule 413 evidence solely as propensity evidence.
The giving of these limiting instructions decreased the danger that Medicine Horn was
unfairly prejudiced by the testimony. See Crawford, 413 F.3d at 876 (citing United
States v. Thomas, 398 F.3d 1058, 1063 (8th Cir. 2005)). The District Court did not
abuse its discretion in determining that the outcome of the Rule 403 balancing test
permitted the admission of the evidence of prior sexual assaults.

       Medicine Horn also asserts that the District Court's admission of the evidence
of prior sexual assaults under Rule 413 violated his due-process rights. Our Circuit
rejected this argument in United States v. Mound, 149 F.3d 799, 800–01 (8th Cir.
1998), cert. denied, 525 U.S. 1089 (1999), a decision by which we are bound.

                                          III.

       Medicine Horn's second challenge is to the District Court's instruction to the
jury that voluntary intoxication is not a defense to the charged sexual abuse offenses.5


      5
       The challenged instruction reads as follows:

      There is evidence in this case tending to show that the Defendant may
      have been intoxicated prior to and at the time of the alleged commission
      of the offenses with which he is charged. Intoxication may be used to

                                          -6-
While Medicine Horn does not dispute that the instruction was a correct statement of
the law, he argues that the District Court should not have given the instruction because
he never asserted intoxication as a defense. Rather, Medicine Horn's defense was that
he never committed the alleged sexual acts. According to Medicine Horn, the
instruction prejudiced him because it "undermined Medicine Horn's credibility with
the jury" and "raised an irrelevant, collateral issue and distracted the jury from
considering Medicine Horn's actual defense." Appellant's Br. at 23. We see no merit
in this argument.

         This case is remarkably similar to United States v. Norquay, in which we held
that the district court did not err by instructing the jury that voluntary intoxication was
not a defense to sexual abuse charges. 987 F.2d 475, 480 (8th Cir. 1993), abrogated
on other grounds, United States v. Thomas, 20 F.3d 817, 823 (8th Cir. 1994) (en
banc). We recognized in Norquay that district courts ordinarily should refrain from
giving voluntary intoxication instructions in cases involving rape, a general intent
crime. Id. (citing United States v. Lavallie, 666 F.2d 1217, 1219–20, 1222–23 (8th
Cir. 1981)). But we noted that "[i]n cases involving general-intent crimes where
considerable evidence has been introduced about the intoxicated state of a defendant
. . . giving such an instruction, even over a defendant's objection, to make clear to the
jury that voluntary intoxication is not a defense is not unfairly prejudicial." Id.

     Because a considerable amount of evidence was introduced at trial about
Medicine Horn's intoxicated state on the night he assaulted EFH, we hold that the

      rebut evidence of specific intent where the crime charged is one
      requiring a specific intent to commit the crime. In this case, however,
      the crimes charged do not require specific intent. Therefore, no act
      committed by the defendant while in a state of voluntary intoxication, if
      you so find, shall be deemed less criminal by reason of his having been
      in such condition.

Instruction No. 20.

                                           -7-
District Court did not abuse its discretion by giving the intoxication instruction. Like
the defendant's testimony in Norquay, Medicine Horn's "own testimony offered
plentiful evidence of his intoxication on the night of the events in question." Id.
Medicine Horn admitted that he was drinking heavily during the party that preceded
the assault. He testified that when he arrived at the Wade residence he was "buzzed"
and that in the four hours before the attack he consumed six to eight twelve-ounce
cans of beer, six sixteen-ounce cans of beer, and shots from three different bottles of
liquor. Tr. at 287. Given this evidence, the District Court did not abuse its discretion
in giving the voluntary intoxication instruction.

                                          IV.

      For the reasons discussed, Medicine Horn's conviction is affirmed.
                       ______________________________




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