United States Court of Appeals

For the Eighth Circuit

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No. 13-1657

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Patrick Brown Thunder

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of South Dakota - Pierre

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 Submitted: January 14, 2014

 Filed: March 12, 2014

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Before GRUENDER, BRIGHT, and MELLOY, Circuit Judges.

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GRUENDER, Circuit Judge.

Following a jury trial, Patrick Brown Thunder was convicted of two counts of

a four-count indictment: sexual abuse of a minor (A.C.), a violation of 18 U.S.C.

§§ 2243(a) and 1153(a), and sexual abuse of a person incapable of consenting (H.C.),
a violation of 18 U.S.C. §§ 2242(2) and 1153(a). The district court sentenced him

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to concurrent 180- and 240-month terms of imprisonment. For the reasons described

below, we affirm.

I. Background

On March 28, 2008, three minor girls, A.C., H.C., and T.C., consumed a liter

of whiskey at A.C.’s home. Brown Thunder, who was 26 years old at the time, joined

the girls. Shortly before A.C.’s mother was due to arrive at the residence, Brown

Thunder drove away with H.C. By this time, the alcohol had caused H.C. to

experience difficulty walking and speaking. Shortly thereafter, H.C.’s mother, Fawn

High Bear, realized her daughter was not at home and called A.C.’s house. She spoke

with T.C., who said that H.C. “went off walking alone.” T.C. told A.C. about her

conversation with High Bear. A.C. then visited High Bear and told her the

truth—that Brown Thunder had driven away with her daughter. 

High Bear drove to the house ofBrown Thunder’s mother, where she identified

Brown Thunder in his car. She parked behind his vehicle and yelled out, “My

daughter—I want my daughter out of there.” Looking in the vehicle’s window, she

identified her daughter passed out on the reclined front passenger seat. She pounded

on the window and pulled the locked door handle—all to no avail. Boxed in by High

Bear’s car behind him, Brown Thunder sped off through the backyard and escaped

with H.C. High Bear notified the authorities. 

Several hours later, H.C. knocked on Kelly Speker’s front door, and his

girlfriend, Alyssa Knight, answered. Knight called H.C.’s aunt,Jennifer Brown Wolf,

The HonorableRoberto A. Lange, United States DistrictJudge for the District 1

of South Dakota.

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to report H.C.’s appearance at Speker’s residence. Knight waited outside with H.C.

until Brown Wolf arrived. H.C. was unable to remember what had happened to her. 

When Brown Wolf arrived, she observed that H.C.’s hair was disheveled, her makeup

wassmeared, and her shirt and pants were stained with blood. H.C. also was missing

a shoe. After meeting with High Bear, they called an ambulance to take H.C. to the

local hospital. Unable to receive care there, High Bear drove H.C. to the hospital in

Pierre, South Dakota.

The attending nurse identified scrapes on H.C.’s face and chest, bruises on her

knees, and a two-centimeter laceration on the right side of her vaginal wall. 

According to the physician who testified at trial, this laceration was consistent with

an object being inserted into the vagina and not with a straddle-type injury. Blood

was identified on her shirt, pants, and underwear. No evidence of semen was found

on H.C.’s genitals or clothing, but a blood sample retrieved from Brown Thunder’s

front passenger seat matched H.C.’s DNA. Medical experts testifying at trial agreed

that it was not possible to determine whether the injury was caused by a penis, a hand,

a finger, or another object. 

During the investigation of H.C.’s assault, A.C. told an FBI agent that Brown

Thunder first had intercourse with her when she was thirteen years old. The FBI

agent visited a trailer court parking lot where A.C. reported she and Brown Thunder

had sex. The agent found H.C.’s missing shoe in the parking lot. 

At trial, Brown Thunder attempted to implicate Speker, a convicted sex

offender, as the perpetrator responsible for assaulting H.C. However, given the lack

of evidence showing Speker and H.C. spent time alone together on the evening in

question, the district court did not allow Brown Thunder to introduce evidence of

Speker’s prior sexual abuse conviction. Instead, the court limited the inquiry about

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Speker to whether law enforcement conducted a sufficient investigation of H.C.’s

assault. 

Following the jury’s guiltyverdict,Brown Thunder filed a motion for judgment

of acquittal based upon insufficiency of the evidence as to the sexual abuse count

involving H.C., which was denied. Brown Thunder raises three arguments on appeal:

(1) the district court abused its discretion by failing to give his theory-of-defense

instruction; (2) the evidence was insufficient to support his conviction for sexually

abusing H.C.; and (3) the district court abused its discretion by excluding evidence

of Speker’s prior sexual abuse conviction.

II. Discussion

A. Theory-of-Defense Instruction

“We review a district court’s rejection of [a] defendant’s proposed instruction

for abuse of discretion, and we recognize that district courts are entitled to broad

discretion in formulating the jury instructions.” United States v. Ironi, 525 F.3d 683,

688 (8th Cir. 2008) (quoting United States v. Hayes, 518 F.3d 989, 994 (8th Cir.

2008)). “We will affirm so long as the jury instructions given by the district court,

‘taken as a whole, fairly and adequately submitted the issues to the jury.’” United

States v. Chatmon, --- F.3d ---, 2014 WL 443979, at *3, slip op. at 6 (8th Cir. Feb. 5,

2014) (quoting United States v. Engelmann, 720 F.3d 1005, 1011 (8th Cir. 2013)). 

“Defendants are entitled to a theory of defense instruction if it is timely requested, is

supported by the evidence, and is a correct statement of the law.” Id. However,

“there is no error if the instructions as a whole, by adequately setting forth the law,

afford counsel an opportunity to argue the defense theory and reasonably ensure that

the jury appropriately considers it.” United States v. Christy, 647 F.3d 768, 770 (8th

Cir. 2011).

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Brown Thunder submitted a handwritten proposed jury instruction outlining

three defense theories: (1) that A.C. falsely accused Brown Thunder; (2) that the

evidence was insufficient to prove that H.C. was sexually abused or, in the

alternative, that Brown Thunder was the perpetrator of any abuse; and (3) that High

Bear falsely testified that she identified her daughter in Brown Thunder’s car. The

district court rejected the instruction, reasoning that it was “duplicative of what

already [was] in the instructions” and was “more in the nature of arguments to the

jury.” However, the district court did instruct the jury that Brown Thunder had pled

not guilty and was presumed to be innocent until proven guilty. The district court

also explained that, to establish guilt, the essential elements of each offense had to be

proven by the Government beyond a reasonable doubt. The jury also was instructed

to consider the credibility of the witnesses in reaching its verdict. 

In Christy, the defendant requested an alibi theory-of-defense instruction,

which the district court rejected. Id. at 770-71. We observed that “[n]o specific

instruction was necessary to alert the jur[ors] that . . . [they] must find [the defendant]

not guilty if they had a reasonable doubt about whether he was present” at the scene

of the crime. Id. at 771. Likewise, no additional specific instruction was necessary

here. Based on the instructions given, the jurors understood that they had to find

beyond a reasonable doubt that Brown Thunder sexually abused H.C. The jurors also

knew they had to consider whether the testimony against him was credible and

truthful. Brown Thunder’s rejected theory-of-defense instruction essentially

amounted to an assertion that he did not commit the crimes charged. He was afforded

the opportunity to argue these theories during closing argument; moreover, the jury

instructions, as given, reasonably ensured that the jury would consider his theories. 

See United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995) (finding no error

where the substance of the rejected instruction was adequately addressed in other

instructions and the defendant’s counsel was permitted to argue the substance of the

rejected instruction during closing argument). Accordingly, we find no abuse of

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discretion in refusing to give Brown Thunder’s tendered theory-of-defense

instruction.

B. Sufficiency of the Evidence

“In reviewing the denial of a motion for a judgment of acquittal, we review the

sufficiency of the evidence de novo, evaluating the evidence in the light most

favorable to the verdict and drawing all reasonable inferences in its favor.” United

States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014). “[T]he court will not disturb

the conviction unless ‘no reasonable jury could have found the defendant guilty

beyond a reasonable doubt.’” Id. (quoting United States v. Serrano-Lopez, 366 F.3d

628, 634 (8th Cir. 2004)). “Importantly, ‘[i]t is not necessary for the evidence before

the jury to rule out every reasonable hypothesis of innocence. It is enough if the

entire body of evidence [is] sufficient to convince the fact-finder beyond a reasonable

doubt of the defendant’s guilt.’” Id. (first alteration in original) (quoting United

States v. Surratt, 172 F.3d 559, 564 (8th Cir. 1999)). This is a “very strict standard

of review.” United States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004). Brown

Thunder raises two sufficiency arguments with respect to the sexual abuse count

involving H.C., and we consider them each in turn.

Brown Thunder was found guilty of sexual abuse of a person incapable of

consenting, requiring proof that he “engage[d] in a sexual act with another person”

who was “incapable of appraising the nature of the conduct” or “physically incapable

of declining participation in, or communicating unwillingness to engage in, that

sexual act.” United States v. Demery, 674 F.3d 776, 779 (8th Cir. 2011) (quoting 18

U.S.C. § 2242(2)). Section 2246(2) describes four different types of conduct

constituting a “sexual act.” 18 U.S.C. § 2246(2). Brown Thunder was found guilty

of sexual abuse by means of the sexual act described in § 2246(2)(C), requiring

“penetration, however slight, of the anal or genital opening of another by a hand or

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finger or by any object.” Id. Brown Thunder also was charged in a separate count

of sexually abusing H.C. by means of the sexual act described in § 2246(2)(A),

requiring “contact between the penis and the vulva or the penis and the anus.” Id. 

He was acquitted on this count.

Brown Thunder contends that no reasonable jury could have found him guilty

of abusing H.C. by use of his hand, finger, or any object, as opposed to his penis. In 2

support of his argument, Brown Thunder cites undisputed medical expert testimony

that it was not possible to determine whether H.C. was abused with Brown Thunder’s

penis or with his hand, finger, or any object. Brown Thunder asserts that “[i]f there

was a reasonable possibility that the contact was with a penis, then there was a

reasonable possibility that the contact was not with the defendant’s hand, finger[,] or

[any] object.” Appellant’s Brief at 23 (emphasis in original). As uncomfortable as

it is to characterize his claim as a “hypothesis of innocence,” Brown Thunder

essentially argues that he cannot be held accountable for H.C.’s sexual abuse because

there is a “reasonable possibility” that he sexually abused her with his penis and not

with his hand, finger, or any object. This argument, however, misconstrues our role

in reviewing a jury’s verdict. We have held that “[i]t is not necessary for the evidence

before the jury to rule out every reasonable hypothesis of innocence.” Wright, 739

F.3d at 1167. Rather, “[i]t is enough if the entire body of evidence [is] sufficient to

convince the fact-finder beyond a reasonable doubt of the defendant’s guilt.” Id.

We conclude that the body of evidence was sufficient to support the jury’s

finding thatBrown Thunder used his hand, finger, or any object in perpetrating sexual

The Government did not argue that a penis might qualify as an “object” for

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purposes of § 2246(2)(C). Because this matter ofstatutory interpretation has not been

briefed and because the case can be resolved under sufficiency-of-the-evidence

review, we assume without holding that a penis is not an “object” within the meaning

of § 2246(2)(C).

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abuse against H.C. Brown Thunder left A.C.’s house with H.C., and High Bear later

identified her unconscious daughter with Brown Thunder in his car. He refused High

Bear’s demand to release her daughter, and he sped away. This evidence indicates

that Brown Thunder was alone with H.C. and had the opportunity to sexually abuse

her. One of H.C.’s shoes went missing during the evening of the attack; thatshoe was

found in a parking lot where Brown Thunder previously had sexually abused another

victim, providing yet another link to Brown Thunder. The attending physician

identified several injuries indicating that H.C. suffered a sexual assault, including

scraping on her face and chest, bruising on her knees, and a two-centimeter vaginal

laceration. Her blood was detected on her shirt, pants, and underwear, as well as on

Brown Thunder’s front passenger car seat, supporting the conclusion that she was in

his car during or after the attack. Finally, no semen was detected on her clothing or

genitals. While it is possible for penile penetration to occur without ejaculation, the

absence of semen supports a reasonable inference that a hand, finger, or any object

was used during the assault. While it might be that Brown Thunder employed his

penis to sexually abuse H.C., this theory alone is insufficient to overturn the jury’s

verdict under this “very strict standard of review.” Cook, 356 F.3d at 917. 

“[E]valuating the evidence in the light most favorable to the verdict and drawing all

reasonable inferences in its favor,” Wright, 739 F.3d at 1167, we conclude that a

reasonable jury could have concluded that Brown Thunder sexually abused H.C. by

use of his hand or finger or by any object.

Brown Thunder also contends that the evidence was insufficient to prove that

H.C.’s sexual assault occurred in Indian country, as required by 18 U.S.C. § 1153(a). 

This argument is unavailing. Brown Thunder admitted at trial that he never left the

CheyenneRiver Sioux Indian Reservation on the evening of March 28 orthe morning

of March 29, 2008. Additionally, H.C.’s missing shoe was found at the same trailer

court parking lot where Brown Thunder had previously sexually assaulted A.C. This

parking lot is within the boundaries of the reservation. His admission, together with

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the location of H.C.’s missing shoe, would allow a reasonable jury to conclude that

H.C.’s assault occurred in Indian country. 

Accordingly, we affirm the denial of Brown Thunder’s motion for judgment

of acquittal.

C. Speker Evidence

“We review a district court’s decision to admit or exclude testimony for an

abuse of discretion.” United States v. Jewell, 614 F.3d 911, 918 (8th Cir. 2010). The

Federal Rules of Evidence permit a district court to “exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . confusing the issues.” 

Fed. R. Evid. 403. Brown Thunder sought to introduce evidence of Speker’s prior

sexual abuse conviction in order to suggest that it was Speker, and not Brown

Thunder, who sexually abused H.C. However, citing Rule 403 and a concern over

confusion of the jury, the district court excluded evidence of Speker’s prior sexual

abuse conviction given the complete lack of evidence showing that Speker was alone

with H.C. The district court instructed the jury that any testimony concerning Speker

was being admitted for the limited purpose of evaluating the sufficiency of the law

enforcement investigation. 

Brown Thunder contends this ruling and the court’s limiting instruction

deprived him of his right to present a defense and his right to a fair trial. We

disagree. In United States v. Kenyon, 397 F.3d 1071 (8th Cir. 2005), Kenyon sought

to introduce evidence that his victim’s caretaker had a past sexual abuse conviction

and argue that the caretaker, rather than Kenyon, committed the crime. Id. at 1079. 

The district court excluded the evidence, and we affirmed because Kenyon’s caretaker

theory was unsupported by any evidence and “was entirely speculative.” Id.

Similarly, Brown Thunder’s theory that Speker perpetrated the abuse is based solely

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upon conjecture. The record is devoid of evidence that Speker spent any time alone

with H.C. While H.C. did approach his residence on the evening in question, Knight

waited with H.C. until Brown Wolf retrieved her. H.C. testified that she did not

interact with anyone other than Knight while waiting for Brown Wolf to arrive at

Speker’s residence. The lack of evidence that Speker had the opportunity to abuse

H.C. completely undermines the probative value of his prior conviction. Moreover,

admitting the conviction into evidence very likely would have confused the jury by

creating the impression that someone without access to the victim may have

committed the crime. This leads us to conclude that the district court did not abuse

its discretion by excluding Speker’s prior conviction under Rule 403 and giving the

limiting instruction. 

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Accordingly, the district court did not abuse its discretion in excluding

evidence of Speker’s prior sexual abuse conviction, and we affirm.

III. Conclusion

For the foregoing reasons, we affirm. 

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Additionally, Rule 412 also would bar the admission of this evidence. When

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a party seeks to offer evidence that “someone other than the defendant wasthe source

of semen, injury, or other physical evidence,” the party is required to file a motion

describing the proposed evidence at least fourteen days before trial and to notify the

victim of the proposed evidence. Fed. R. Evid. 412(c)(1). Here, Brown Thunder

neglected to file a Rule 412 motion and failed to notify H.C. or her guardian or

representative of the proposed Speker evidence. See United States v. Eagle, 137 F.3d

1011, 1015 (8th Cir. 1998) (holding that the district court did not abuse its discretion

in excluding evidence based upon the defendant’s non-compliance with the deadlines

in Rule 412(c)).

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