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Evidence Objections not Enough to Overturn Molestation Convictions

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By Casey C. Sullivan, Esq. on March 31, 2015 4:50 PM

The Eight Circuit has upheld the conviction, on sexual abuse and molestation charges, of a South Dakota man found to have abused several young girls, including his nieces, near the Rosebud Indian Reservation.

Randy Never Misses A Shot had been convicted of five counts of child related sexual abuse. He appealed, arguing, in part, that the court had erred in allowing six witnesses to testify about similar sexual assaults he committed and in refusing to allow him to introduce evidence that one of his alleged victims had been previously molested by others.

The Eight Circuit affirmed his conviction, rejecting his claims.

Never Misses A Shot had been accused of sexually assaulting his two nieces, J.N.A.M.S. and P.S., over a series of years, beginning when they were five and nine years old. He was also accused of abusing a third child several years later. J.N.A.M.S. testified that Never Misses a Shot repeatedly abused her with a group of three other men, though she had failed to mention him when reporting abuse earlier.

P.S. testified that she had been abused while her family slept nearby. Other adults present, including Randy's mother and the girl's grandmother, stated that the saw and heard no abuse. The third witness testified about sexual abuse which occurred in 2007. After a jury trial he was sentenced to 444 months in prison.

A Troubling, but Harlmess Number of Witnesses

Never Misses A Shot argued that evidence of past molestations was improperly introduced. Under the Federal Rules of Evidence 413 and 414, evidence that a defendant committed similar sexual assaults may be considered where relevant. Such an assault is relevant if committed in a similar manner.

While the lower court applied the correct standards, the Eight Circuit was "troubled" by the amount of witnesses it allowed -- six. Such cumulative evidence adds little probative value, according to the court, though the error was not enough to result in reversal.

Evidence of Past Sexual Acts of Victims

Finally, Never Misses A Shot complained that he was not allowed to introduce evidence that P.S. was molested by another perpetrator, in order to support his theory that P.S. wrongly ascribed another's acts to him. Under Rule 412, evidence of an alleged victim's past sexual behavior is generally prohibited. The Eight Circuit held that the court could reasonably reject such evidence out of concern about the ramifications for future abuse victims and for the shame and embarrassment it may cause the witness.
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