United States v. Chisholm

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 9, 2025
• Docket: 24-7007
• Status: Unpublished

Opinion

Appellate Case: 24-7007 Document: 55-1 Date Filed: 04/09/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 9, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-7007 (D.C. No. 6:21-CR-00194-RAW-1) PAULA AMBER CHISHOLM, (E.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, CARSON, and ROSSMAN, Circuit Judges. _________________________________

When the government lists a specific date in an indictment, it must produce

evidence which tends to show that the defendant committed the charged offense on a

date “reasonably near” the date listed in the indictment. So long as the government

presents enough evidence reasonably consistent with the indictment’s time frame, it

provides sufficient evidence for conviction. “Reasonably near” does not mean exact.

Here, a grand jury indicted Defendant Paula Amber Chisholm for conduct

beginning “on or about” November 20, 2019, and ending December 5, 2019.

Defendant contends the jury lacked sufficient evidence to convict her for conduct

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-7007 Document: 55-1 Date Filed: 04/09/2025 Page: 2

occurring within that range. We disagree. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

I.

K.C., a minor, lived in a house in McAlester, Oklahoma, within the Choctaw

Nation and thus within Indian Country. K.C. lived with Defendant, his grandmother,

his aunt Emily, Emily’s four children, K.C.’s sister, an adult male cousin, and that

adult male cousin’s girlfriend. For a time, K.C.’s grandfather lived there too.

Defendant’s grandmother owned the house in which they all lived. Defendant is a

member of the Muscogee Creek Nation—a federally recognized Indian tribe.

K.C.’s grandmother became his legal guardian after his mother died. But

Defendant watched the children in the home, including K.C.

In 2019, the children had a break from school over the Thanksgiving holiday

from November 23, 2019 through December 1, 2019. K.C. skipped school on

December 2 because of a stomach ache. When he returned to school on December 3,

the school counselor, Ginger Cornish, suspected someone had abused K.C. She

noticed he did not have much hair and did not look very healthy. His stomach was

distended. He appeared small, thin, listless, and lethargic. K.C. did not respond to

Cornish and had bodily injuries, including bruising on his ears, a festering wound on

his leg, and marks on his back. The school called an ambulance and officials met

Defendant and K.C.’s grandmother at the hospital. Cornish knew that the Oklahoma

Department of Human Services (DHS) had intervened in March and August 2019.

Defendant had agreed to the state weighing and monitoring K.C.

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Nurse practitioner Cynthia Sanford examined K.C. at the hospital. She

previously evaluated K.C. in September 2019 after the earlier DHS referrals. Sanford

performed a “head-to-toe evaluation” of K.C. The photographs from this

examination revealed: (1) injuries to four of K.C.’s toes, including abrasions and

missing tissue on two of them; (2) an abrasion on the top of a foot; (3) scarring on the

top of a foot reflecting well-healed scars to injuries from a previous manner;

(4) scarring at the head of K.C.’s right fibula that reflected another well-healed old

injury; (5) scarring on the front of both of his legs from old injuries that had healed;

(6) a partially healed injury on the front of one of his legs; (7) pink or red abrasions

on his knees; (8) well-healed scars on his right knee; (9) scarring up next to his

underwear on the right thigh; (10) scarring on the front side of his torso, including a

long linear scar; (11) scarring to the right of the umbilicus or the belly button;

(12) scarring just under his ribs, right upper quadrant and left lower quadrant;

(13) scarring on the lower rib cage; (14) scarring just right above the left nipple that

extends down to the left side; (15) a linear abrasion, a little round abrasion right next

to it, and some contusion or bruising around that abrasion in the area of his left

nipple; (16) multiple scratches or abrasions in the area of his left anterior chest;

(17) a long linear abrasion that crosses his chest; (18) a brownish-yellow “healing

contusion” on the inside of his upper arm; (19) a contusion or a bruise to the cartilage

of the upper ear; (20) a “glial injury” to the left ear, where the ear is pulled and it

pulls the skin away from the bone and produces a bruise under the skin; (21) a scrape

or an abrasion on the left forehead, and a small scratch right below it; (22) an old

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injury on the back of his knee; (23) scarring on the back of his left leg, some of

which was well-healed and some of which reflected a new injury; (24) an oval-

shaped contusion with some purple, some red, and some green discoloration

indicating a healing contusion on his left hip; and (25) a different contusion on his

left hip, above the hip bone and extending into the soft tissue.

In addition to talking to the nurse practitioner at the hospital, K.C. also spoke

with social worker Michelle Swimmer. Swimmer described K.C. as terrified. She

noticed marks all over his ears, his head, his arms, his wrists, his legs, and his feet.

He told her that “Aunt Paula” had been hurting him.

Defendant denied hurting K.C. The hospital discharged K.C. into his father’s

care and custody the next day.

Following McGirt v. Oklahoma, 591 U.S. 894 (2020), the Federal Bureau of

Investigation filed a criminal complaint that charged Defendant with one count of

child abuse in Indian country, in violation of 18 U.S.C. § 1153. A grand jury later

indicted Defendant on one count of child abuse and one count of child neglect

violating 18 U.S.C. § 1153. The indictment alleged that Defendant abused K.C.

“[b]eginning on or about November 20, 2019 and continuing until December 5, 2019

. . . by striking, kicking, dragging, pinching, and restraining” him.

The case proceeded to a jury trial. The jury convicted Defendant of child

abuse but acquitted her of child neglect. The district court sentenced Defendant to

forty-eight months’ imprisonment followed by twenty-four months’ supervised

release.

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II.

On appeal, Defendant argues we should reverse her conviction and remand

with instructions to grant a judgment of acquittal because the government presented

no evidence from which a rational jury could conclude Defendant injured K.C.

reasonably near the time period alleged in the indictment. “We review de novo the

sufficiency of evidence.” United States v. Murry, 31 F.4th 1274, 1296 (10th Cir.

2022) (citing United States v. Sharp, 749 F.3d 1267, 1275 (10th Cir. 2014)). “We

ask ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Id. (quoting United States v. Serrato, 742 F.3d

461, 472 (10th Cir. 2014)).

Here, the indictment alleged that Defendant physically abused K.C. beginning

“on or about” November 20, 2019, and ending December 5, 2019. Defendant argues

the government presented no evidence that Defendant inflicted the injuries K.C.

suffered reasonably close to the Thanksgiving school break in 2019.1

1 At oral argument, Defendant argued that in addition to appealing the sufficiency of the evidence as to the time period listed in the indictment, she also challenged the sufficiency of the evidence that she was K.C.’s abuser. Defendant does not raise this issue in her opening brief. And “the omission of an issue in an opening brief generally forfeits appellate consideration of that issue.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (citing Wyoming v. Livingston, 443 F.3d 1211, 1216 (10th Cir. 2006)). Even if we reviewed the sufficiency of the evidence, any rational trier of fact could have concluded that Defendant abused K.C. K.C. testified at trial that Defendant hit him everywhere and that Defendant scared him. Indeed, K.C. testified that Defendant was the person who punched and injured him the day he reported his injuries to the school. 5 Appellate Case: 24-7007 Document: 55-1 Date Filed: 04/09/2025 Page: 6

We hold the government to the indictment’s language indicating when the

alleged crime took place. United States v. Ellis, 868 F.3d 1155, 1179 (10th Cir.

2017). For that reason, “[w]hen an indictment lists a specific date, the government

must produce ‘some evidence which tends to show that the defendant committed the

charged offense on “a date reasonably near to the specified date.”’” Id. (quoting

United States v. Charley, 189 F.3d 1251, 1273 (10th Cir. 1999)). “Reasonably near”

does not mean exact. So, if the prosecution proves a defendant committed an offense

“within a few weeks of the date,” we deem the proof sufficient to hold a defendant

responsible for the charge. Kokotan v. United States, 408 F.2d 1134, 1138 (10th Cir.

1969) (citing Ledbetter v. United States, 170 U.S. 606, 612–13 (1898)). We have

sustained convictions based on more generic time evidence if the government

presented evidence reasonably consistent with the indictment’s time frame. See

United States v. Castillo, 140 F.3d 874, 885 (10th Cir. 1998) (upholding a conviction

against a defendant who allegedly committed a crime in June based on victim’s

testimony the crime occurred “in the summer”); Ellis, 868 F.3d at 1179 (sustaining a

drug conviction because “the government produced evidence of Ellis’s maintaining

921 Haskell as a drug premises during the month before the date charged in the

indictment.”).

Viewing the evidence in the light most favorable to the prosecution, we

conclude any rational trier of fact could have found beyond a reasonable doubt that

Defendant physically abused K.C. beginning “on or about” November 20, 2019, and

ending December 5, 2019. Here, the evidence shows that the nurse’s examination in

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September 2019 showed no physical abuse signs, nor did the photographs taken of

K.C. in October and November. Only after K.C. returned to school after

Thanksgiving break did he show physical-injury signs. After Thanksgiving break,

K.C. said that Defendant abused him. The evidence additionally showed fresh

bruises and stomach pains after Thanksgiving break, apparently from Defendant

punching him in the stomach.

Defendant objects to this evidence. First, that Nurse Sanford did not narrow

down when his bruising and other injuries occurred. But the government’s complete

case established a timeline: no injuries before Thanksgiving break, many injuries

after. Second, that K.C. gave non-specific testimony in which he said that Defendant

hit him with a belt while he lived with her, a period that exceeds even a few weeks’

leeway around the 2019 Thanksgiving school break. Defendant argues K.C.’s sister

gave the same non-specific testimony: accusing Defendant of pushing laundry

baskets down on K.C. while he lived with her. But, taken as a whole, the

government’s evidence suggests an abuse timeline that included the indictment dates.

K.C. testified that Defendant punched him in the stomach and that’s why he felt bad

when he returned to school. And as to K.C.’s sister’s testimony, Defendant admitted

laundry baskets fell on K.C. during Thanksgiving break.2

2 Because the evidence supports finding abuse during the period in the indictment, we need not reach the government’s additional argument that September 25—the last day Nurse Sanford saw K.C. without injuries—is itself sufficiently close to November 20 to support affirmance. 7 Appellate Case: 24-7007 Document: 55-1 Date Filed: 04/09/2025 Page: 8

Defendant cites our decision in United States v. Simpson, 845 F.3d 1039 (10th

Cir. 2017), for the proposition that evidence showing a defendant committing a crime

within a two-month period before her arrest was insufficient to sustain a conviction

for a crime alleged to have occurred “on or about” a particular date. Simpson is

inapposite. That case dealt with the propriety of jury instructions used during a gun

possession trial. Id. The law had recently changed on constructive possession to

require an intent to use the guns constructively possessed during the period the

indictment alleged, an element the jury instructions omitted. Id. at 1060. The

government argued there was nevertheless evidence to support a conviction because a

police officer testified that “Simpson had admittedly shown his wife how to fire the

handguns in the two months prior to the arrest.” Id. at 1062. We reversed because

that evidence did not address Simpson’s intent to use the guns any closer to his arrest

as the new constructive possession law required. Id. The issue with the

government’s case was not timing, but rather lack of the intent the law required.

Thus, the evidence was sufficient for a jury to conclude that Defendant

physically abused K.C. beginning “on or about” November 20, 2019, and ending

December 5, 2019.

AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge