United States v. Denny Johnson, Sr.

860 F.3d 1133, 103 Fed. R. Serv. 1006, 2017 WL 2800729, 2017 U.S. App. LEXIS 11585
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 29, 2017
Docket16-3483
StatusPublished
Cited by39 cases

This text of 860 F.3d 1133 (United States v. Denny Johnson, Sr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Denny Johnson, Sr., 860 F.3d 1133, 103 Fed. R. Serv. 1006, 2017 WL 2800729, 2017 U.S. App. LEXIS 11585 (8th Cir. 2017).

Opinion

SHEPHERD, Circuit Judge.

Following a jury trial, Denny Johnson was sentenced to thirty years in prison for physically assaulting and raping his estranged wife. Johnson now challenges four of the district court’s 1 evidentiary rulings at trial, as well as the court’s application of sentencing enhancements for obstruction of justice and vulnerable victim. We affirm.

I. Background

Johnson and D.M. were married nearly seven years and had three young children *1137 together when D.M. filed for divorce in August 2013. D.M. and the children moved out of the couple’s home in Kenel, South Dakota, and into her parents’ home in nearby Dupree. 2 Seeking to mend her marriage, in September D.M. moved back in with Johnson, leaving the children with her parents. The two stayed together through the fall, but in early December D.M. informed Johnson that she had decided to proceed with the divorce. D.M. continued living with Johnson, although she began sleeping in a separate bedroom.

D.M. alleged that, between December 1, 2013 and January 10, 2014, Johnson continually entered her bedroom while she tried to sleep and raped her both vaginally and anally. If she resisted, D.M. claimed that Johnson would strangle her, squeezing his forearm around her neck until her vision blurred. D.M. would later testify that during those weeks she felt trapped, too frightened to call out for help, and too weak to regain her car keys, cell phone, and money from Johnson’s control.

D.M. attempted escape in late December 2013. As she opened the front door to the house, Johnson slammed the door shut and pulled her back inside by her jacket. He then threw D.M. to the floor, kicked her repeatedly in an area of her back that had previously been injured, struck her in the forehead with metal, used a knife to cut off all the clothes from her body, and instructed her to kill herself in front of him. When she refused, Johnson urinated on her naked body. He then forced her into the shower, turned on cold water, and began pouring powdered bathroom cleaner, dish-washing soap, body wash, shampoo, bleach, and dirty mop water on her. He held up a mirror to D.M. and said, “Look how ugly you look when you cry,” before shattering the mirror in the tub. When Johnson’s cousins arrived at the house, Johnson forced D.M. to stay in the bedroom and told her he would kill her if she cried out for help. After the cousins left, Johnson raped D.M., forcibly contorting her body to reenact the positions he claimed he had experienced with other women.

On January 10, 2014, D.M. and Johnson made a deal: she would give him her 1997 Chevrolet Blazer in exchange for him allowing her to leave. After signing over the title, D.M. immediately ran outside, got into her Chevrolet Cavalier, and drove to a gas station to call 911 and report Johnson. D.M. prepared a written statement for law enforcement summarizing much of what she would later testify to at trial. Johnson was indicted in the U.S. District Court for the District of South Dakota and charged with five counts of aggravated sexual abuse, kidnapping, assault with a dangerous weapon, assault of a spouse by strangulation, and domestic assault by a habitual offender.

The charges in the indictment related solely to the incidents that allegedly occurred in December 2013 and January 2014. At trial, evidence was also presented that Johnson had two tribal court convictions for physically assaulting D.M. The first conviction arose from a conflict between Johnson and D.M. in April 2004 in which Johnson ripped out parts of D.M.’s hair, leaving a bald spot and visibly swollen scalp. Johnson also sat on D.M.’s stomach and pushed on her chest because he had heard that doing CPR on a living person stops the heart. When their two-year-old son tried to help his mother, Johnson hit him in the stomach, knocking the child to the floor. Johnson subsequent *1138 ly pled guilty in the Cheyenne River Sioux Tribal Court, Eagle Butte, to two counts of aggravated assault, domestic violence, ánd endangering the welfare of a child. The second conviction arose in December 2006, around two weeks before the couple’s wedding. Johnson came home intoxicated, kicked in the bedroom door, and kicked over the Christmas tree. He then slapped D.M. in the face, leaving her cheek swollen. She took her children and fled to the neighbors’ house to call the police. For this incident, Johnson pled guilty to simple assault and domestic violence.

The government also offered expert testimony from Kristine Heeren-Graber, the executive director of the South Dakota Network Against Family Violence and Sexual Assault. Heeren-Graber testified about the common emotional and behavioral characteristics that domestic violence victims often display. Her testimony was based on the Duluth Model, which she described as a scientific study highlighting the power and control that propels abusive domestic relationships (the “power-and-control wheel”). She explained that the power-and-control wheel represents the various attributes of a physically and/or sexually abusive relationship. In the middle, there is power and control, surrounded by terms describing how abusers use power and control to trap their victims in violence, including intimidation, isolation, denial, blame, and economic abuse. Heeren-Graber also explained the “cycle of violence,” which divides domestic abuse into three stages. The cycle begins with tension-building between the abuser and victim, followed by an explosion of violence, and ending with a honeymoon phase that gives the victim hope until the tension begins stewing once more. Finally, Heeren-Graber discussed typical victim responses to domestic violence, including how women often remain in abusive relationships without reporting the abuse to authorities. Throughout her testimony, Heeren-Graber did not discuss any emotional or behavioral characteristics specific to D.M. and offered no opinion as to D.M.’s credibility or whether D.M. had in fact been sexually abused.

Johnson attempted to rebut the government’s expert testimony with evidence of D.M.’s prior bad acts. In a notice filed before the trial began, Johnson stated his intent to introduce testimony that (1) in October 2013 D.M. assaulted Johnson and trashed his home, (2) in November 2013 D.M. punched Johnson in the jaw resulting in Johnson going to the hospital, and (3) on various other dates witnesses have seen D.M. physically abuse Johnson. In response, the government pointed to the facts that D.M. was not on trial and was never convicted of any of the alleged prior bad acts. The government argued that, under Federal Rules of Evidence 401 and 403, introducing evidence of D.M.’s prior acts would only confuse the issues and waste the court’s time. The district court granted the government’s motion to exclude the evidence on the ground that admitting the evidence would create mini-trials because, if Johnson offered evidence of D.M.’s prior misconduct, the government would be allowed to offer rebuttal evidence of Johnson’s same aggressive trait. See Fed. R. Evid. 404(a)(2)(B).

The jury found Johnson guilty of two counts of aggravated sexual abuse, 18 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
860 F.3d 1133, 103 Fed. R. Serv. 1006, 2017 WL 2800729, 2017 U.S. App. LEXIS 11585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-denny-johnson-sr-ca8-2017.