United States v. Kermit Miner

131 F.3d 1271, 1997 U.S. App. LEXIS 36557, 1997 WL 784020
Court of Appeals for the Eighth Circuit·Decided December 23, 1997·No. 97-1918·Published·Cited by 20 cases

Opinions

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. 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 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, [1273]*1273again 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 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.

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, 62 S.Ct. 457, 469, 86 L.Ed. 680 (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, 75 S.Ct. 127, 137, 99 L.Ed. 150 (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 Keimit 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 Aldi-na 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.

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 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

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United States v. Kermit Miner, 131 F.3d 1271, 1997 U.S. App. LEXIS 36557, 1997 WL 784020 (8th Cir. 1997).

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