                  United States Court of Appeals
                    FOR THE EIGHTH CIRCUIT


                         No. 97-1918


United States of America,       *
                                *
          Appellee,             *
                                * Appeal      from   the   United
States
         v.                     * District Court for the
                                * District of South Dakota.
Kermit Miner,                   *
                                *
         Appellant.             *


                Submitted:   November 21, 1997

                                                           Filed:
December 23, 1997


Before LOKEN, HEANEY, and BRIGHT, Circuit Judges.


HEANEY, Circuit Judge.

    Kermit Miner appeals his conviction of abusive sexual
contact with a minor, alleging that the evidence produced
at trial was insufficient and that the victim recanted
her testimony. We affirm.
                           I.

    On May 8, 1996, Kermit Miner was indicted on two
counts of abusive sexual contact and one count of sexual
abuse of a minor.    The indictment alleged that on two
separate   occasions,    Miner   sexually    abused   his
stepdaughter S.J. The first alleged incident occurred on
November 8, 1995, and gave rise to Counts I and II,
abusive sexual contact and sexual abuse of a minor,
respectively. The second alleged incident occurred on
December 7, 1995, and gave rise to Count III, abusive
sexual contact. Miner’s trial commenced on October 28,
1996, after which a jury acquitted him of Counts I and II
and convicted him of Count III. On March 21, 1997, Miner
was sentenced to twenty-four months of incarceration, a
special assessment, and supervised release. On March 31,
1997, Miner filed notice of appeal to this court.

    At the time of trial, Kermit Miner was thirty-two
years old and had a sixth-grade education. He lived with
his wife, Audrey Miner, and their eleven natural and
foster children in White Horse on the Cheyenne River
Indian Reservation in South Dakota.     Additionally, as
many as five other adults lived on the premises.     The
Miner household included two houses, the main house and
a small, two-room auxiliary house (log house) located
behind the main house. At most, the two-level main house
measured 36 feet by 15 feet giving it a total of 1,080
square feet. Similarly, the log house measured 23 feet
by 15 feet giving it a total of 345 square feet.      In
total, as many as eighteen residents shared 1,425 square
feet of living space.



                            2
    On December 11, 1995, Diane Chasing Hawk, one of the
adults living in the Miner household, went to Standing
Rock Sioux Tribal Social Services Department and reported
her suspicions that Kermit Miner was abusing the children
in his home. In response to this report, Aldina Moran,
a child protection worker for the state of South Dakota,
went to the Timber Lake School on December 21, 1995, and
interviewed several of the children from the Miner
household. Kermit Miner’s stepdaughter, S.J., who was
fourteen at the time, told Ms. Moran that her stepfather
had sexually abused




                            3
her on two occasions. S.J. was subsequently removed from
the household and her mother, Audrey Miner, was allowed
supervised visits.

    At trial, S.J. testified that both instances of
sexual abuse occurred when Audrey Miner was absent. S.J.
testified that the first incident happened on November 8,
1995, following a trip to Timber Lake where Kermit Miner
played volleyball. After returning home late that night,
Kermit Miner made her take a VCR and TV to the log house.
In the bedroom of the log house, Kermit Miner pulled down
S.J.’s pants; started touching her, her breasts and
vaginal area; and tried to kiss her vagina.           She
testified that during this time she was crying and she
tried to push him away. She testified that he gave her
five dollars.

    S.J. stated that the second incident occurred on
December 7, 1995, when illness kept her from school. On
this occasion, again in the log house, Kermit Miner
pushed her shirt and bra up around her neck, rubbed her
breasts, and told S.J. that her breasts were soft. S.J.
told him to stop touching her and that it was her body,
but Miner continued until S.J.’s cousin and two younger
brothers came back from school.    E.F.H., S.J.’s nine-
year-old cousin, testified that he saw Kermit Miner and
S.J. lying on a bed, Miner was touching S.J.’s side, and
Miner was “doing nasty” to S.J. (Tr. at 145.)

    On appeal, Kermit Miner challenges the sufficiency of
the evidence supporting his conviction on two bases.
First, Miner points out that S.J. twice recanted her
testimony   and  alleges   that   S.J.   fabricated   her

                            4
allegations of sexual abuse. Second, Miner contends that
the jury reached a compromise verdict in that there are
no real factual differences between the conduct for which
he was acquitted and that for which he was convicted.
Because substantial evidence supports his conviction, we
affirm.




                            5
                          II.

    In reviewing the sufficiency of the evidence for a
criminal conviction, we view the evidence in the light
most favorable to the government and accept as
established all reasonable inferences supporting the
verdict. United States v. Black Cloud, 101 F.3d 1258,
1263 (8th Cir. 1996); see also Glasser v. United States,
315 U.S. 60, 80 (1942). “The evidence need not exclude
every reasonable hypothesis of innocence, but simply be
sufficient to convince the jury beyond a reasonable doubt
that the defendant is guilty.” United States v. McGuire,
45 F.3d 1177, 1186 (8th Cir. 1995) (citation omitted).
Furthermore, because circumstantial evidence is as
inherently probative as direct evidence, Holland v.
United States, 348 U.S. 121, 140 (1954), the same
standard applies to verdicts based entirely, or in part,
on circumstantial evidence. United States v. Carlson,
547 F.2d 1346, 1360 (8th Cir. 1976).

    At trial, the jury had ample evidence from which it
could have concluded Miner’s guilt.        S.J. provided
extensive and detailed evidence of Kermit Miner’s sexual
abuse. Diane Chasing Hawk, rather than S.J., initially
raised the specter of sexual abuse. Consequently, S.J.
had no warning that Aldina Moran would investigate
activities in the Miner household. Ms. Moran conducted
an extensive interview at which S.J. provided a detailed
description of two incidents of sexual abuse, including
dates, times, and places. During the interview, S.J. was
emotional and cried. Finally, details surrounding the
second incident were corroborated by E.F.H., S.J.’s nine-
year-old cousin.

                            6
    Despite S.J.’s recantations which make this a closer
case, we conclude that substantial evidence supports
Miner’s conviction. S.J.’s first recantation occurred on
June 29, 1996 in a private meeting between S.J. and
Kermit Miner’s attorney. At the meeting S.J. signed a
note written by the attorney disavowing her allegations
of sexual abuse which was later admitted as Exhibit 7 at
trial.    Three weeks after signing the note, S.J.
reaffirmed her recantation.    At trial, however, S.J.
changed her position and




                           7
renewed her allegations that Kermit Miner sexually abused
her. The jury was aware of the fact that S.J. initially
reported sexual abuse; that she recanted these charges;
that S.J. reaffirmed her recantation; and that she
testified at trial consistent with her original
allegations. Having weighed S.J.’s credibility in light
of her changed position as well as the other evidence
produced at trial, the jury convicted Kermit Miner.
Viewing the evidence in the light most favorable to the
government and accepting all reasonable inferences
supporting the verdict, we find nothing in the first
recantation that warrants reversal.

    Because we affirm Miner’s conviction in light of
S.J.’s first recantation, the second recantation will
warrant reversal only if it raises a strong enough
inference of innocence to warrant a new trial on the
ground of newly discovered evidence under Rule 33 of the
Federal Rules of Criminal Procedure. Courts look upon
recantations with suspicion. United States v. Provost,
969 F.2d 617, 619-20 (8th Cir. 1992) (citation omitted).
“[S]kepticism about recantations is especially applicable
in cases of child sexual abuse where recantation is a
recurring phenomenon” such as “when family members are
involved and the child has feelings of guilt or the
family members seek to influence the child to change her
story.”   Id. at 621 (citations omitted).      At trial,
expert testimony revealed that recantations are very
common in child sexual abuse.

    The second recantation occurred on April 10, 1997.
S.J. signed an affidavit to the effect that her
allegations of sexual abuse were untrue and that she made

                            8
them up because she hated Kermit Miner. The affidavit
alleged that Diane Chasing Hawk offered S.J. money to
fabricate charges of sexual abuse and that social
services and the Assistant U.S. Attorney Mikal Hanson
manipulated S.J. into providing false testimony.

    A careful review of the record suggests that Audrey
Miner pressured S.J. before trial, and this pressure may
have had an effect on S.J.’s recantations. For example,
in her first supervised visit with S.J., Audrey expressed
disbelief in S.J.’s description of the alleged sexual
abuse. In another supervised visit on January 19, 1996,
Audrey told




                            9
a social worker that she did not believe S.J.      During
this meeting, S.J. became very upset and cried.        At
trial, Deanne Ducheneaux, the Assistant Coordinator for
Sacred Heart Adolescent Program where S.J. was eventually
placed, testified that Audrey frequently put pressure on
S.J. before trial. The week before trial, Audrey called
S.J. at Sacred Heart Adolescent Center and told S.J. that
she had a heart attack and was minutes away from dying.
Audrey told S.J. that her allegations of sexual abuse and
the upcoming trial had put a lot of stress upon Audrey.
During the same phone call, S.J.’s little sister got on
the phone and said “don’t say nothing bad about my
daddy.”   (Tr. at 394.)     Finally, on June 28, 1996,
apparently in violation of a tribal court order, Audrey
Miner took S.J. from her social services placement with
relatives in Little Eagle, South Dakota, back to White
Horse, South Dakota.    The next day, Audrey Miner took
S.J. to Fort Pierre to meet with Kermit Miner’s attorney
at which point S.J. signed her first recantation. Under
these circumstances, we conclude that S.J.’s second
recantation does not raise a sufficiently strong
inference of innocence to warrant reversal.

    Miner also contends that the jury reached a
compromise verdict in that there are no real factual
differences between the alleged November 8, 1995 incident
which gave rise to Counts I and II, on which he was
acquitted, and the alleged December 8, 1995 incident
giving rise to Count III, on which he was convicted.
Miner argues that the jury did not believe that he was
guilty of Counts I and II and, because there was less
evidence to support Count III, his conviction should not
stand. We disagree. Counts I and II were not supported

                           10
by eyewitness testimony at trial, whereas Count III was
supported by E.F.H.’s eyewitness testimony.

    Incidentally, as we noted above, as many as eighteen
people inhabited the Miner household, including eleven
natural and foster children of Audrey and Kermit Miner.
This court cannot understand why the Department of the
Interior, the Tribe, and other agencies permitted foster
children to be placed in this already over-crowded home.




                           11
    Over the last ten years at least forty convictions for
the sexual abuse of children or young adults, involving
Native Americans, in the United States District Court for
the District of South Dakota have been appealed to this
court.1   Of that number, at least


      1
        See United States v. Wright, 119 F.3d 630 (8th Cir. 1997) (affirmed) (familial);
United States v. Cournoyer, 118 F.3d 1279 (8th Cir. 1997) (affirmed) (non-familial);
United States v. Rouse, 111 F.3d 561 (8th Cir. 1997) (affirmed) (familial); United
States v. Goodlow, 105 F.3d 1203 (8th Cir. 1997) (affirmed) (familial); United States
v. LeCompte, 99 F.3d 274 (8th Cir. 1996) (reversed and remanded) (familial); United
States v. Hale, No. 95-3113, 1996 WL 39628 (8th Cir. Feb. 2, 1996) (per curiam)
(affirmed) (facts unclear whether familial); United States v. NB, 59 F.3d 771 (8th Cir.
1995) (affirmed) (familial); United States v. Ponca, No. 94-3981, 1995 WL 299168
(8th Cir. May 18, 1995) (per curiam) (affirmed) (familial); United States v. Young, No.
94-2077, 1994 WL 577466 (8th Cir. Oct. 21 1994) (per curiam) (affirmed) (familial);
United States v. Farmer, 32 F.3d 369 (8th Cir. 1994) (affirmed) (non-familial); United
States v. Saknikent, 30 F.3d 1012 (8th Cir. 1994) (affirmed) (non-familial); United
States v. Whitted, 11 F.3d 782 (8th Cir. 1993) (reversed and remanded) (familial);
United States v. Has No Horse, 11 F.3d 104 (8th Cir. 1993) (reversed and remanded)
(non-familial); United States v. Knife, 9 F.3d 705 (8th Cir. 1993) (affirmed) (familial);
United States v. Martinez, 3 F.3d 1191 (8th Cir. 1993) (affirmed) (non-familial); United
States v. Shoulders, No. 92-3591, 1993 WL 326364 (8th Cir. Aug. 27 1993) (per
curiam) (affirmed) (familial); United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993)
(affirmed in part, reversed in part and remanded) (familial); United States v. Eagleman,
No. 92-2882, 1993 WL 41382 (8th Cir. Feb. 22, 1993) (per curiam) (affirmed)
(familial); United States v. Drapeau, 978 F.2d 1072 (8th Cir. 1992) (affirmed) (facts
unclear whether familial); United States v. Claymore, 978 F.2d 421 (8th Cir. 1992)
(affirmed) (non-familial); United States v. Bad Yellow Hair, No. 91-3704, 1992 WL
184103 (8th Cir. Aug. 5, 1992) (per curiam) (affirmed) (facts unclear whether familial);
United States v. Crane, 965 F.2d 586 (8th Cir. 1992) (affirmed) (familial); United
States v. Balfany, 965 F.2d 575 (8th Cir. 1992) (familial); United States v. Fawbush,
946 F.2d 584 (8th Cir. 1991) (conviction affirmed, but case remanded for
resentencing) (non-familial); United States v. Plenty Arrows, 946 F.2d 62 (8th Cir.
1991) (reversed and remanded) (familial); United States v. Drapeau, 943 F.2d 27 (8th
Cir. 1991) (affirmed) (non-familial, different case than one with same case name
                                           12
twenty-five represented instances in which children or
young adults were abused by a father or another family
member. Of those, we reversed the convictions in seven
cases.    Unfortunately, in examining these cases, the
number of appeals in the most recent five years or so has
risen approximately fifteen percent, indicating that
little or no progress has been made by the United States
Department of Interior, the Tribe, or any of the federal
or state agencies that are involved in reducing the
incidents of sexual abuse on poverty-stricken Indian
reservations.    This fact certainly suggests that all
interested agencies should consider alternative programs
that will reduce the prevalence of this crime on South
Dakota Indian reservations.

                                         III.




above); United States v. Two Bulls, 940 F.2d 380 (8th Cir. 1991) (per curiam)
(affirmed) (non-familial); Arcoren v. United States, 929 F.2d 1235 (8th Cir. 1991)
(affirmed) (familial); United States v. Clown, 925 F.2d 270 (8th Cir. 1991) (conviction
affirmed, but case remanded for resentencing) (familial); United States v. Two Bulls,
918 F.2d 56 (8th Cir. 1990) (vacated and remanded) (facts unclear whether familial;
different case than one with same case name above); United States v. Eagle Thunder,
893 F.2d 950 (8th Cir. 1990) (affirmed) (non-familial); United v. Duran, 886 F.2d 167
(8th Cir. 1989) (affirmed) (familial); United States v. Spotted War Bonnet, 882 F.2d
1360 (8th Cir. 1989), vacated and remanded, 497 U.S. 1021 (1990) (Mem.), 933 F.2d
1471, aff’g, (8th Cir. 1991) (familial); United States v. Iron Moccasin, 878 F.2d 226
(8th Cir. 1989) (affirmed) (familial); United States v. Demarrias, 876 F.2d 674 (8th Cir.
1989) (affirmed) (familial); United States v. Provost, 875 F.2d 172 (8th Cir. 1989)
(affirmed) (familial); United States v. Red Feather, 865 F.2d 169 (8th Cir. 1989) (per
curiam) (affirmed) (familial); United States v. St. John, 851 F.2d 1096 (8th Cir. 1988)
(affirmed) (familial); United States v. St. Pierre, 812 F.2d 417 (8th Cir. 1987)
(affirmed) (familial).
                                           13
    Because substantial evidence supports Kermit Miner’s
conviction, we affirm.




                           14
BRIGHT, Circuit Judge, concurring separately.

    I commend my distinguished colleague, Judge Heaney,
for his pertinent remarks calling attention to what I
believe may be the root cause of child abuse crimes on the
South Dakota Indian Reservation; that is, the degraded
living conditions of families on the Indian reservations.
The government has or will spend well over $50,000 in the
criminal prosecution and incarceration of Kermit Miner.
Although he will be removed from the family for about two
years, I question whether the family situation will be
bettered by his absence or improved on his return from
prison.

    Child abuse on the reservation or anywhere is a
serious matter.     I suggest in particular on the
reservation, improvement in housing conditions and
intensive education of parents and children about the
problem might reduce the incidence of the sort of abuse
that occurred here. All federal agencies interested in
the welfare of Native Americans in South Dakota need to
focus on rehabilitation, better housing and education
opportunities to alleviate the problem of child abuse on
the reservation.

    The interest and action of federal prosecutors in this
regard could well serve as a catalyst for improvement of
living conditions at the Cheyenne River Indian Reservation
and other Indian reservations in South Dakota and,
thereby, reduce the incidence of child abuse.




                            15
    A true copy.


           Attest:


               CLERK,   U.   S.        COURT   OF   APPEALS,   EIGHTH
CIRCUIT.




                                  16
