NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0610n.06 No. 12-5922 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff - Appellee , v. ARDI TH DOB SON, Def endant - Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT CO UR T FOR THE EASTERN DI STRI CT OF KENTUCKY

OP INION

Before: DA UG HTREY, MOORE, an d ST RANCH, Cir cuit Judges. JANE B. STRANCH, Circuit Judge. Ardith Dobson appea ls the district court’s judgme nt revoking his supervised rele ase and imposing a 32-month prison sentenc e. He argues t h at t he evi d en ce wa s i nsufficie nt to establish a violation of his conditions of rele ase. We disag ree and AF F IRM the judg ment of the district cour t. I. BACKG ROUND Shortly befor e 3:25 a.m. on Novemb er 1 7 , 2 011, Kathlee n Click called 911 to repor t that Ardith Dobson, her boy friend, had a s s au l t ed her at her home. Kentucky State Police Offic er J oel Abner responde d to the call, but lear ned on his w ay to Click’s house that Click w as en route to the hospital in an ambulance

. Ab n er arr ived at Click’s home at approximately 4 a.m., but did not g o inside beca

use no one was there

. Be fore leaving , though, he noticed blood smeare d on a scre en door and on the f

ront porch.United States v. Dobson , No. 12-5922

Pag e 2 Abner found Click g etting medical car e in the major trauma wing of the hospital’s em e rg ency

room at about 4:40 a .m. H e obser ved a f our-inch la cer ation on her head and a one-inc h deep g ash

on her rig ht fore arm. Click’s left bicep was cut, as was her rig h t ey eb row. Blood cover ed Click from her neckline to he r fe et. During their interview—slowe d down to some extent by Cl i ck ’s inebriation and hear ing loss—Cl ick rela

ted that Dobson hit her sever al times with a whiskey bottle when she confr onted him about his infidelity

. Dobson was very drunk when the assault occur red and fled afte r she called 911. Be fore Abner left the hospital a bit afte r 5:00 a.m., Click told him that she wanted to press char g es ag ainst Dobson. Abner later testified that Click did not appear to be confuse d about how she was injured, nor mention that any one else was in her home when the attack oc curr ed. Abner next spoke to Click a wee k-and- a-ha lf later. She had chang ed her mind and no longe r wanted to press char g es. Click told Abner that “she didn’t want to put any thing else on Ardith.” At

no point, though, did she exculpate Dobson. When Dobson was arr ested two wee ks afte r the assault, Click called Abner to a sk what she neede d to do to dr op the char g es. At this time, too, she did not sug g est that someone e lse attac ked her

. The assault char g e ag ainst Dobson was ultimately dismiss ed without prejudice

. But beca use he was serving a six -y ear superv i sed-r elea se term, the probation depar tment soug ht revoc ation of Dobson’s supervised rele ase for alleg edly violating one of its t er m s that prohibited him from committing any

crimes. At Dobson ’s s u p ervised-rele ase- revoc ation hear ing on April 6, 2012, a mag istrate judge hear d testimony from Dobson’s probation office r, Click, Abner , Dobson’s niece Alicia Dobson, andUnited States v. Dobson , No. 12-5922

Pag e 3 his brother R i ck y Da rr ell Dobson. When Click took the stand, she dropped a bombshell: she testified that the story sh e t o l d Ab n er about Dobson was fabr icated to punish Dobson for his

u n faithfulness. Now claiming a dim rec ollection of what happene d that night, Click rela t ed t h at Trac y , a woman w ith whom Cl ick had pr eviously tussled, was re sponsible for her injuries. The gove rnment poi nted ou t that Click had never mentioned Trac y to Abner , even though they had spoken on at least three occa sions. And Alicia Dobson testified that Click told her for the first time that day that Trac y was re sponsible, even thoug h she aske d Click what happe ned bef ore and talked to he r multiple tim es about the a ssault. Dobson argued that Click’s intox ication and propensity to black out made all o f h e r te s ti mo ny unreliable , but the mag istrate judge found that the statement Click made to Abner at the hospital was

m o s t likely true. He rea soned that in her state that night—“ [d] runk, unconscious and viciously beate n”—Click did not likely lie to g et reve ng e on Dobson, as she now claimed. The mag istr ate judge also questioned her selec tive memory loss, noting that she now had a “cle ar rec ollection” that Trac y hit her with the whiskey bottle, and reme mbere d a detailed conver sation she overhe ard in the

emer g ency room. And he found that Click’s ref usal to aid in Dobson’s prosec ution “did not in any way attempt to exonerate” Dobson. Although the mag istrate judge found the evidenc e to be “conf licting,” he conclude d that it established that Dobson had violated the terms of his supervised rele ase. Over Dobson’s objections, the district court concur red in the mag istrate judge ’s finding s and conclusions. The court defe rre d to the mag istrate judge ’s evalua tion of Click’s cre dibilit y , as the mag istrate judge sat through t h e p roceeding s, listened to Click’s testimony , and observe d herUnited States v. Dobson , No. 12-5922

Pag e 4 comportment under examination. And the court endorsed the g reater weig ht the m ag istrate judge g ave to Click’s hospital statement by analog y to the hear say exception for excited utteranc es, which

rec og nizes that a statement made while a decla rant is under the stress of excitement from a startling incident contains “inher ent g uara ntees o f tr uthfulness.” Haggins v. W arden, Fort Pillow State Farm , 715 F.2d 1050, 1057 (6th Cir. 1983). The district court revoke d Dobson’s supervised rele ase and sentenc ed him to a 32-month prison term. Dobson appea ls only the district court’s revoc ation decision, which we have jurisdiction to revie w under

28 U.S.C. § 1291. II. ANALYSIS Dobson argues that the evidenc e supporting the district court’s deter mination that he violated the conditions of his supervised rele ase was insufficient. We apply an abuse- of-discr etion standard to appra ise a district court’s decision to revoke supervised rele ase. United States v. Crace , 207 F.3d 833, 835 (6th Cir. 2000)

. We r eview its leg al conclusions de novo, id ., and its factual finding s for clea r er ror, United States v. Carter , 463 F.3d 526, 528 ( 6th Cir. 2006). To revok e a d efendant’s supervised rele ase, a court must find “by a preponde ranc e of the evidenc e that the defe ndant violated a condition of supervised rele ase.” 18 U.S.C. § 3 5 83(e) (3); United States v. C o

f i eld , 233 F.3d 405, 406 (6th Cir. 2000). And to reve rse a revoc ation order , a

re v i ewing court needs t o have a “definite and firm conviction” that the di strict court’s conclusion was “ a cle ar e rror

of judg ment.” United States v. Stephe nson , 928 F.2d 728, 732 ( 6th Cir. 1991).United States v. Dobson , No. 12-5922

Pag e 5 Dobson complains t h at the only evidenc e ty ing him to the assault on Click—the drunken statement she g ave Abner in the hospital

— wa s i n admi ssible hear say evidenc e. Be cause a 1

revoc ation hear ing is “ more flexibl e than a criminal trial,” sufficie ntly reliable hear say evidenc e is unobjectionable

. Id

. So Dobson’s argument does not g et him very far unless he can show that Click’s hospital statement was unreliable

. Dobson insists Click’s later ad m i ssion that it was a lie makes the state ment cate g orica lly insufficient to establish a supe rvised-r elea se violation. Dobson is mi s ta

k e n . F a ctfinder s regularly fac e rec anting witnesses, and must decide whether to cre dit one version of events over another , or to disreg ard the m all. A fac tfinder c ould plausibly conclude that Click’s hospital statement, bolstered by other corr oborating evidenc e p r e s e n t here , was sufficie ntly reliable , even if her later rec antation was not. See United States v. Hadley , 431 F.3d 484, 5 1 0

– 1 4 (6 th Cir. 2005) (finding no err or in the sentenc ing court’s relianc e on a domestic abuse victim’s post-incident statement that the defe n d an t h el d a g un to her head to conclude that the defe ndant used or possessed a g un in connec tion with a crime of violence, despite the victim’s

rec antation at a later sente ncing hear ing)

. To beg in with, the circ umstances surrounding Click’s hospital statement permitted the court to rea sonably infer t h at she was not apt t o lie about t he identit y of her attacke r at that time. Click spoke t o Abner about an hour after she was brutally beate n. Trac king the rationale of a ve nera ble evidentiar y rule conce rning the reliability o f s o -c alled excited utteranc es, the court rea soned that Click’s hospital statement was not likely contrived beca use she was under the stress of excitement

The reliability o f Ab n er ’s repor t is not at issue here

. Whil e Click was undoubtedly 1 intox i ca t ed wh en s he spoke to Abner at t he hospi tal, Dobson does not sug g est that his acc ount of their conver sation is untrustworthy

. Nor does Dobson question the vera city of Abner ’s later hear ing testimony

.United States v. Dobson , No. 12-5922

Pag e 6 fr o m the assault when she told Abner that Dobson was the perpe trator. See Fe d. R. Evid. 803(2); Haggins , 715 F.2d at 1057. Abner corr oborate d that Click did not appea r to be confuse d about how

s h e was injured, or say that another person was prese nt when the attack occur red. Moreo v er , t h e hospital statement was actua lly the second time Click pinned the blame on Dobson that night, having

ear lier told the 911 dispatcher that Dobson was responsible. Th e court rea sonably thought it implausible tha t a

n intox icated assault victim sobe rly calc ulated reve ng e ag ainst an innocent party rig ht after she wa s attacke d, at the cost of le tting her assailant esc ape. Other rec ord evidenc e also s u p p o rt s the court’s decision to discount Click’s later story without undermining the reliability of the ear lier one. Click established her motive to bend the truth

ea rl y on. When she spoke to Abner more than a wee k afte r the attack but befor e the revocat i o n hear ing, Click e x plained that “she didn’t want to put any thing else on Ardith.” And althoug h they talked three times befor e the hear ing, Click never told Abner that Dobson was not responsible or that

someone else was. Moreove r, Dobson’s niece testified that Click did not r elate to he r that another person was involved until the morning of the hear ing, even though they spoke four or five times afte r the assault and A licia direc tly asked Click wha

t transpired tha t night. Be fore concluding , we note that Dobson failed in his endea vor to establi s h an al i b i

. Dobson’s brother tried t o place him at t heir father’ s h o u s e on the ni g ht of t he assault, but told the court that he did not know wher e Dobson was betwee n 10 p.m. and 5 a.m. This testimony does not help Dobson beca

use Click was attac ked at a round 3 a.m., c alled 911 at 3:25 a.m., and told Abne r that Dobson fled after she place d the call. At most, Dobson established that he did not have a carUnited States v. Dobson , No. 12-5922

Pag e 7 to g et to and from Click’s home. T h e co u rt b elow did not err in sifting throug h—and disreg arding

—this evidence

. At bottom, the district court made fac tual deter minations based o n evidenc e that bore sufficie nt indicia of reliability , and properly pushed aside ev i d en ce that did not. Dobson may not ag ree with the court’s cre d i b i l i t y deter minations or the infere nces it drew from the evidenc e, but those fac tual finding s wer e neither contra ry to the fac ts nor clea

rly err oneous. So we defe r to them. III. CONCLUSION Dobson’s arguments on appea l do not leave us with a “def inite and firm conviction” that the district court’s conclusion was in err or. Stephenson , 928 F.2d at 732. As the court acte d well within its discretion in concluding that Dobson violated a condition of his supervised rele ase, we AF F IRM

.