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The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-4161

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 *

United States of America, * 

* Appeal from the United States

 Appellee, * District Court for the

v. * District of South Dakota.

*

Lyman Gerald Crawford, * [PUBLISHED]

*

 Appellant. *

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Submitted: June 22, 2005

 Filed: June 28, 2005 

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Before RILEY, BOWMAN, and BENTON, Circuit Judges. 

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PER CURIAM.

Lyman Gerald Crawford appeals his convictions for two counts of abusive

sexual contact and one count of aggravated sexual abuse of an eight-year-old minor,

in violation of 18 U.S.C. §§ 1153, 2241(c), 2244(a)(1), 2246(3). He argues the

district court1

 should have granted two Batson challenges, excluded evidence of a

prior conviction, and instructed on simple assault as a lesser-included-offense of
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abusive sexual contact. Jurisdiction being proper under 28 U.S.C. § 1291, this court

affirms. 

I.

Crawford, a Native American, alleges the government peremptorily struck the

only two Native Americans from the jury panel based on race. He claims an Equal

Protection violation. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). To prove this,

Crawford must make a prima facie case of discrimination – a showing that the

government's peremptory challenges were racially motivated. See United States v.

Meza-Gonzalez, 394 F.3d 587, 593 (8th Cir. 2005). Once a prima facie case is

shown, the government must produce a race-neutral explanation for the strike. Id.

The court decides whether the proffered reason is a pretext. Id. The district court's

determination that the peremptory challenges are race-neutral is reviewed for clear

error. United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990).

The government stated that it struck juror number 11 because the juror's

brother-in-law pleaded guilty to molesting children or "something like this," and

because the juror twice said she knew who Crawford was but did not know him

personally. There is no Batson violation when a juror is dismissed because the juror's

relatives have been prosecuted or convicted of a crime, or where the juror has

knowledge of the defendant. Gibson v. Bowersox, 78 F.3d 372, 373-74 (8th Cir.

1996); Kilgore v. Bowersox, 124 F.3d 985, 992 (8th Cir. 1997). 

The government explained that it struck juror number 1 because the juror had

a DWI conviction. The government also feared the juror may have a bias against law

enforcement and not show up for jury service. A juror's bias or dissatisfaction with

law enforcement is a race-neutral reason for striking the juror. Gee v. Groose, 110

F.3d 1346, 1351 (8th Cir. 1997); United States v. Gibson,105 F.3d 1229, 1232 (8th

Cir. 1997). 
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A prior conviction is a race-neutral reason for dismissing a juror. United States

v. Plumman, 2005 WL 1309065, at *7-8 (8th Cir. June 3, 2005). Crawford argues

that the DWI-conviction proffer was pretext because the government did not strike

a similarly-situated white juror whose son had a DWI. Pretext may be shown where

"non-stricken white panel members share the characteristics of a stricken minority

panel member." United States v. Jenkins, 52 F.3d 743, 747 (8th Cir. 1995). A person

convicted of a crime is not similarly-situated to a person whose child has been

convicted of a crime. In addition, the government proffered a combination of reasons

for striking juror number 1, making juror number 1 and the white juror sufficiently

dissimilar. See Devoil-El v. Groose, 160 F.3d 1184, 1187 (8th Cir. 1998), cert.

denied, 525 U.S. 1163 (1999). Finally, Crawford presented no evidence the

government systematically excluded minorities from the jury panel. See Miller-El v.

Dretke, — S.Ct. ----, 2005 WL 1383365, at *8 (2005). 

The district court's finding that the government's peremptory challenges were

race-neutral is not clearly erroneous.

II.

Crawford argues that the district court erred by admitting, over objection,

evidence of his 1994 conviction for abusive sexual contact of an eight-year-old girl.

In sexual assault cases, proof of prior offenses for sexual assault is generally

admissible against the defendant. Fed. R. Evid. 413(a). Assuming the prior offenses

are relevant, Rule 413 supersedes Rule 404's prohibition against character evidence.

United States v. Mound, 149 F.3d 799, 801-02 (8th Cir. 1998), cert. denied, 525 U.S.

1089 (1999). Evidence admitted under Rule 413 is still subject to Rule 403, requiring

that the evidence's probative value outweigh the danger of unfair prejudice. Id. The

district court's evidentiary determination is reviewed for abuse of discretion. United

States v. Ballew, 40 F.3d 936, 941 (8th Cir. 1994).
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The district court found Crawford's 1994 conviction relevant, and that its

probative value outweighed the danger of unfair prejudice. This court agrees. The

1994 conviction was relevant because it involved a similar crime – sexual assault of

an eight-year-old girl. See United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001).

The district court gave two cautionary instructions that the jury not consider the

conviction solely as propensity evidence. Limiting instructions decrease the danger

of unfair prejudice. United States v. Thomas, 398 F.3d 1058, 1063 (8th Cir. 2005).

Finally, there is "strong legislative judgment that evidence of prior sexual offenses

should ordinarily be admissible." United States v. LeCompte, 131 F.3d 767, 769 (8th

Cir. 1997). The district court did not abuse its discretion. 

III.

Crawford asserts that he was entitled to a jury instruction on simple assault as

a lesser-included-offense of the two counts of abusive sexual contact. Crawford notes

that no Eighth Circuit precedent directly addresses when an instruction for simple

assault must be given in an abusive-sexual-contact case. Generally, an instruction on

a lesser-included-offense is appropriate where: (1) a proper request is made; (2) the

lesser-offense elements are identical to part of the greater-offense elements; (3) some

evidence would justify conviction of the lesser offense; (4) there is evidence such that

the jury may find the defendant innocent of the greater and guilty of the lesserincluded-offense; and (5) mutuality. United States v. Parker, 32 F.3d 395, 400-01

(8th Cir. 1994). The district court's decision whether to instruct on a lesser-includedoffense is reviewed for abuse of discretion. Id. at 400. 

Element (4) is at issue in this case. Crawford asserts that there is evidence such

that the jury may find him innocent of the greater offense – abusive sexual contact –

and guilty of the lesser offense of simple assault. Crawford emphasizes that simple

assault requires only a deliberately offensive touching of another without justification

or excuse. See United States v. Whitefeather, 275 F.3d 741, 743 (8th Cir. 2002). He
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contends there is evidence of such offensive touching, which does not also show the

intent necessary for abusive sexual contact: to "abuse, humiliate, harass, degrade, or

arouse or gratify the sexual desire." See 18 U.S.C. §§ 2244(a)(1), 2246(3). His

primary authority, United States v. Williams, 197 F.3d 1091, 1097 (11th Cir. 1999),

makes clear that to instruct on simple assault as a lesser-included-offense of abusive

sexual contact, there must be evidence that "the touching was not of a sexual nature."

The district court had to decide – ignoring the testimony of the minor, a witness

(Crawford's son), and a physician – whether Crawford's evidence permits a

reasonable jury to find that his intent is not sexual. See United States v. Elk, 658 F.2d

644, 648-49 (8th Cir. 1981). In Crawford's initial statement to law enforcement

officers – elicited at trial – he stated that on two occasions he "accidentally slipped"

his finger into the minor's vagina while toweling her off after a shower. Crawford

first told the officers that he inserted his finger "just past the end of the fingernail."

He later indicated he went "to the first knuckle." Crawford also informed the officers

that because the minor was scratching herself in various locations on her body, he laid

her on the floor to inspect her vagina for rashes "on a couple of occasions." Finally,

while Crawford denied he forced the minor to touch his penis, he stated that "on at

least two occasions" he woke up during the night and the minor's "hand would be in

his underwear holding his penis." He claims "he had a partial erection" because the

minor "was moving her hand."

Based on Crawford's evidence, a reasonable jury could not acquit him of

abusive sexual contact and find guilt only on simple assault. The district court did

not abuse its discretion by denying Crawford's request for a lesser-included-offense

instruction.

The judgment of the district court is affirmed. 

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