1

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

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2200

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the District

* of South Dakota.

Thomas Yellow Hawk, Jr., *

*

Appellant. *

*

___________

Submitted: November 13, 2001

Filed: January 10, 2002 

___________

Before BYE, RICHARD S. ARNOLD, BEAM, Circuit Judges.

___________

BEAM, Circuit Judge.

Appellant, Thomas Yellow Hawk, Jr. , was convicted on three counts of sexual

abuse and sentenced to seventy months in prison. On appeal, Yellow Hawk

challenges several trial rulings made by the district court.1

 For the reasons set forth

below, we affirm. 
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I. BACKGROUND

On April 20, 2000, Thomas Yellow Hawk, Jr. was charged by indictment with

three counts of sexual abuse, a violation of 18 U.S.C. § 2242(2)(b). The allegations

concerned Yellow Hawk's behavior on or about January 29, 2000, in St. Francis,

South Dakota.

On that date, Yellow Hawk assisted his longtime friend, Merrill Whirlwind

Soldier at the latter's garage with mechanical repair work on a car. Yellow Hawk and

Whirlwind Soldier were close friends, and Yellow Hawk also knew Thomasine

Whirlwind Soldier, Merrill's wife. The two men started drinking around 5:30 p.m.

on that day and consumed a large quantity of alcohol throughout the evening and well

into the early morning hours. Thomasine joined the two men early in the evening and

again in the early morning hours and the three drank heavily together. 

Near the end of the drinking binge, Yellow Hawk, Thomasine, and Merrill

went into the Whirlwind Soldiers' home and drank at the kitchen table until around

7:30 a.m. Each considered themself drunk by this time. Yellow Hawk then "passed

out" and was carried to a nearby couch. Merrill and Thomasine Whirlwind Soldier

went to their bedroom and went to sleep.

 

Merrill's fourteen-year old son, A.W.S., was living with his father and

stepmother at that time, and was the only witness to the charged crime. A.W.S.

observed Yellow Hawk enter Merrill and Thomasine's bedroom, stand over

Thomasine, take her pants off, and engage in sexual acts as described in the

indictment. Merrill and Thomasine were not awake during this time. According to

A.W.S., Yellow Hawk called A.W.S. to the living room shortly thereafter and told

him that they "needed to have a man-to-man talk." A.W.S. testified that Yellow

Hawk then took A.W.S. to the bedroom and attempted to get A.W.S. to touch his
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stepmother but A.W.S. refused. After the two left the bedroom, A.W.S. drove Yellow

Hawk home. 

Thomasine acknowledged at trial that she was intoxicated during the time in

question. She has no recollection of anything that happened between the time she and

her husband retired, and the time she woke at around noon. She remembers going to

bed wearing a t-shirt, blue spandex pants, socks and underwear. When she woke up,

she was naked from the waist down and was hanging half-way off the bed. 

The next day, A.W.S. disclosed to Thomasine's sister what he had observed

Yellow Hawk do to Thomasine. Thomasine's sister and mother then traveled to

Thomasine's home and told her about A.W.S.'s accusations. Thomasine reported the

incident to the police the following day and three months later the indictment was

issued. 

Following trial in February 2001, Yellow Hawk was convicted by a jury on all

three counts and sentenced to seventy months in prison. Yellow Hawk raises four

issues on appeal. First, Yellow Hawk contends the district court erred in allowing the

government to question Thomasine's husband about an allegation of bribery. Yellow

Hawk next contends the district court erred by denying his motion for judgment of

acquittal. Third, Yellow Hawk alleges error in the failure of the court to conduct a

voluntariness hearing prior to the admission of his statement. Finally, Yellow Hawk

alleges that the court should have instructed the jury on the defense of voluntary

intoxication. 

II. DISCUSSION

As to the prejudicial testimony, failure to conduct a voluntariness hearing, and

jury instructions, we review for plain error as trial counsel failed to object or

otherwise raise these issues before the district court. United States v. Mora-Higuera,
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Yellow Hawk asserts that McClinton is controlling on this issue. However,

McClinton merely discusses the appropriate test for determining the voluntariness of

a confession in a case where the defendant discussed details of his crime with

detectives during an interrogation. Yellow Hawk never confessed and so the analogy

is fruitless. 

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269 F.3d 905, 911 (8th Cir. 2001). "We will reverse under plain error review only if

the error prejudices the party's substantial rights and would result in a miscarriage of

justice if left uncorrected." United States v. Parker, 267 F.3d 839, 844 (8th Cir.

2001). "Plain error review is extremely narrow and is limited to those errors which

are so obvious or otherwise flawed as to seriously undermine the fairness, integrity,

or public reputation of judicial proceedings." United States v. Beck, 250 F.3d 1163,

1166 (8th Cir. 2001) (citations omitted). 

Yellow Hawk claims that the district court committed plain error by not

granting a mistrial when the government questioned the victim's husband on redirect

regarding an alleged bribe offered by Yellow Hawk's brother to induce Thomasine

to "forget" the allegations. We find no plain error. In fact, the defense raised the

issue of bribery allegations in the cross-examination of the victim, who was the first

person to testify, and again on direct examination of Yellow Hawk's brother. The

government reasonably responded to this line of questioning by asking Merrill

Whirlwind Soldier about the alleged bribery on redirect. We find that the reference

to the alleged bribe did not affect Yellow Hawk's substantial rights. 

Also without merit is Yellow Hawk's contention that the district court was

required to conduct a voluntariness hearing outside the presence of the jury. Yellow

Hawk never confessed to this crime. In fact, his only statement was that he was so

intoxicated, he could not remember anything during the time of the crime alleged in

the indictment. Thus, we have no reason to discuss United States v. McClinton, 982

F.2d 278 (8th Cir. 1992) or its progeny.2
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Our final issue under plain error review is Yellow Hawk's claim that the district

court erred in failing to instruct the jury on the defense of voluntary intoxication.

Again, Yellow Hawk did not object to the proposed instructions at trial. Failure to

object to jury instructions results in waiver of any assignment of error as to those

instructions. Daggitt v. United Food and Commercial Workers Int'l Union, Local

304A, 245 F.3d 981, 985 (8th Cir. 2001). It appears from a fair reading of the record

that Yellow Hawk's key defense was not that he was so intoxicated he could not be

held responsible for his actions, but that A.W.S. was not telling the truth, or was

coaxed into making the allegations against Yellow Hawk. Thus, there was no plain

error in failing to instruct the jury on a defense that was not addressed by counsel.

The final issue before us is the district court's denial of Yellow Hawk's motion

for judgment of acquittal. We review the denial of a motion for judgment of acquittal

based upon the sufficiency of the evidence by viewing the evidence in the light most

favorable to the verdict, thus drawing all reasonable inferences in favor of the

government. United States v. Hart, 212 F.3d 1067, 1070 (8th Cir. 2000), cert. denied,

531 U.S. 1114 (2001). The trial evidence supports the verdict that the sexual acts

were not a result of the victim's consent in this case, and that Yellow Hawk penetrated

the victim as proscribed in each count of the indictment. 

 

III. CONCLUSION

We reject Yellow Hawk's claims on appeal. Clearly, appellate counsel attempts

to raise ineffective assistance of counsel claims by way of contending that the failures

of the trial counsel were so obvious, the district court should have righted counsel's

alleged wrongs of its own volition sua sponte. We refrain from furthering this

argument. "Except where a miscarriage of justice would obviously result or the

outcome would be inconsistent with substantial justice, ineffective assistance of

counsel issues are more appropriately raised in collateral proceedings because they
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normally involve facts outside the original record." United States v. Woods, 270 F.3d

728, 730 (8th Cir. 2001). 

The conviction and sentence are affirmed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.