## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 18

- 3375

___________________________

United States of America

Plaintiff

- Appellee

v.

Kison Robertson

Defendant

- Appellant

____________ Appeal from United States District Court for the District of South Dakota

- Rapid City

____________

Submitted: October 18, 2019 Filed: January 23, 2020

____________ Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.

____________
GRUENDER, Circuit Judge.

Kison Robertson appeals his conviction and sentence for assault with a dangerous weapon, 18 U.S.C. §§ 113(a)(3), 1152, assault resulting in serious bodily injury, 18 U.S. C. §§ 113(a)(6), 1152, and discharge of a firearm during the commission of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). Robertson challenges two of the district court’s evidentiary rulings

, its denial of a request ed jury instruction, and its imposi tion of three supervised release conditions

. We affirm- 2

- the evidentiary rulings , the denial of the proposed instruction, and two of the supervised release conditions . We vacate and remand to the district court the
condition prohibiting Robertson from consuming alcohol or visiting establishments that primarily serve alcohol

.

I.

On March 30, 2017, Robertson, Urva Quick Bear

, S r., and Urva Quick Bear

, J r. entered into a physical altercation at Evergreen H ousing in Porcupine, South
Dakota

. The altercation ended

, and Robertson left the scene in his vehicle while the Quick Bears remained. Robertson admitted he then drove back to the scene with in
a matter of minutes. Multiple witnesses testified that Robertson returned with a gun and f ired two shots, one in the direction of Quick Bear

, Jr. and one in t he direction of Quick Bear

, Sr., hitting Quick Bear

, Sr. in the abdomen

. Ro bertson admitted that
he fired the shot s but asserted he only intended to sca re the Quick Bears away and protect himself

.

A grand jury indicted Robertso n

. The jury convicted him of one count each of assault with a dangerous weapon

, assault resulting in serious bodily injury, and discharge of a firearm during the commission of a crime of violence. The district

court calculated a total offense level of 24, a criminal history c ategory of VI

, and an advisory sentencing guidelines range of 77 to 96 months for the assault offenses

, plus a mandatory 10

- year

- minimum consecutive sentence for the firearm

- discharge
offense

. T he district court sentenced Robertson to 197 months’ imprisonment and 3 years’ supervised release

. The district court also imposed several supervised release conditions, including three special con ditions that were recommended in the presentence investigation report. Robertson did not object to any of the conditions before or during the sentencing hearing.

Robertson appeal s his conviction on the grounds that the district court abused
its discre tion by admitt ing certain evidence at trial and denying his proposed jury- 3

- instruction. He also a rgues the court improperly imposed three supervised release
conditions

.

II.

First, Robertson argues that the district court improperly admitted an
anonymous 911 cal l from the scene of the altercation that contained a statement identifying Robertson as “the same one that shot his gun over here last month.” Robertson argues that this evidence violated t he Confrontation Clause of the United
States Con stitution and that it should have been excluded under Federal Rule of
Evidence 403. W e review denials of confrontation clause objections de novo

, United
States v. Lee , 374 F.3d 637, 64 3

- 44 (8th Cir. 2004) , and review challenges under Rule 403 for an abuse of discretion, United States v. Guzman , 926 F.3d 991, 999 (8th Cir. 2019)

.

The Confrontation Clause prohibits the admission of testimonial hearsay
unless the declarant is unavailable and the defendant ha s had a prior opportunity to

cross

- examine the declarant. Crawford v. Washington , 541 U.S. 36, 59 (2004). We have held that 911 calls are admissible as nontestimonial statements when they are
“excited utterances

. ” See United States v. Brun , 416 F.3d 703 , 707 (8th Cir. 2005) ; United States v. Phelps , 168 F.3d 1048, 1054

- 55 (8th Cir. 1999). An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or co ndition.” Phelps , 168 F.3d at 1054 (quoting Fed. R. Evid. 803(2)). We also have held that 911 calls that are made to “enable police to identify and apprehend an armed, threatening individual

. . . [ are ] not testimonial in nature and thus d[o] not implica te the Confrontation Clause.” United States v. Mitchell , 726 F . App’x 498, 502 (8th Cir. 2018) ( per curiam ).

We hold that the admission of the challenged 911 call here did not violate Robertson’s confrontation right because the call was not testimonial in nature. The
statements on the call were excited utterances made “under the stress of excitement”- 4

- caused by the “startling event” of the shooting involving Robertson a nd the Quick
Bears

. See Phelps , 168 F.3d at 1054 ; Brun , 416 F.3d at 708 (noting that statements were “unstructured” and “not the product of police interrogation” in determining they were excited utterances). The 911 caller breathlessly describe d the shoo ting by saying Robertson “just now shot at Urva ” and plead ed with the dispatcher, saying “Hurry, hurry! He’s going to come back with a gun!” Moreover, the statement that
describes Robertson as the “ same one who shot his gun over here last month

, ” was inte nded to help police “identify and apprehend an armed, threatening individual.”
See Mitchell , 726 F. App’x at 502. For these reasons, the challenged 911 was a nontestimonial statement that does not implicate the Confrontation Clause.

We also hold the dis trict court did not abuse its discretion in admitting this call over Robertson’s Rule 403 objection

. See Guzman , 926 F.3d at 999. Rule 403 provides that a district court may exclude evidence if “its probative value is substantially outweighed by a danger of

. . . unfair prejudice ” or by considerations
of whether counsel is “ needless ly present ing cumulative evidenc e.” Fed. R. Evid.
403. Robertson argues that the probative value of the challenged 911 call was substantially outweighed by its potential for prejudice and was needlessly
cumulative.

We conclude that the district court did not abuse its discretion in deciding that
the probative value of the challenged 911 call was not substantially outweighed by the risk of unfair prejudice stemming from the description of Robertson as “the same one that shot his gun over here last month.” The challenged 911 call is t he only one of five admitted 911 call s that name d Urva Quick Bear , Sr. as the person at which Robertson was shooting. In addition, the call is significant in that it describes Robertson as shooting “at Urva,” which was probative of Robertson’s intent to s hoot Urva Quick Bear

, Sr. , and not merely warn him, as Robertson testified was his intent

. See Phelps , 168 F.3d at 1058 (noting that evidence had “significant probative value” when it showed defendant’s intentional hostility toward the alleged victim).
A lthough the call also referenced a prior bad act committed by Robertson, neither party claims that this statement was highlighted or even discussed during trial. See- 5

- United States v. Halk , 634 F.3d 482, 488 (8th Cir. 2011) (finding that evidence of a defendant’s previous firearms offenses was not unfairly prejudicial when the court limited references to them during trial). In weighing the probative value of evidence against the dangers of unfair prejudice, “the general rule is that the balance should
be struck in favor of admission.” United States v. Dennis , 625 F.2d 782, 797 (8th Cir. 1980). Despite the risk of prejudice in admitting the statement regarding the shooting “last month,” we do not find that the district court abused its broad
discretion in determining this risk did not substantially outweigh the call’s probative
value

. See Halk , 634 F.3d at 487 (“We review the court’s decision to admit such [404(b)] evidence for an abuse of discretion, and will reverse only when the evidence clearly had no bearing on the case

. . . . ”).

Robertson also argues that the challenged 911 call should have been excluded
under Rule 403 beca use it was needlessly cumulative. “Evidence is ‘ cumulative ’ when it adds very little to the probative force of the other evidence ” and its
contribution to the truth “ would be outweighed by its contribution to the length of the trial, with all the potent ial for confusion

. . . that a long trial creates.” United
States v. Williams , 81 F.3d 1434, 1443 (7th Cir. 1996) ; cf. Unit ed States v. Harris

Thompson , 751 F.3d 590, 601

- 02 (8th Cir. 2014) (concluding that the district court
did not abuse its discretion when it excluded as cumulative a lengthy

, forty

- five

minute video). The 911 call here had probative value, as discussed above, and to the extent any evidence it contained was cumulative, the call was less than two minutes in length and therefore did not greatly lengthen the trial or burden the jury. Therefore, the distric t court did not abuse its discretion in admitting it into evidence.

Second

, Robertson argues that testimony that Quick Bear

, Sr. owed Robertson twenty dollars for marijuana should also have been excluded under Rule 403. The
G overnment responds that Quick Bear

, Sr.’s testimony about this debt was
admissible as part of the res gestae of the crime because it supplie d a possible reason for the initial physical altercation. Res gestae , “also known as intrinsic evidence, is evidence of wrongful conduct other than the conduct at issue

. . . offered for the purpose of providing the context in which the charged crime occurred.” United- 6

- States v. Campbell , 764 F.3d 880, 888 (8th Cir. 2014) (internal quotation marks omitted) ; see United States v. Johnson , 463 F.3d 803, 808 (8th Cir. 2006) (stating that Federal Rule of Evidence 404(b) forbidding evidence relating to other wrongful conduct by a defendant does not apply to intrinsic evidence).

We agree with the district court that any prejudice stemming from the reference to marijuana did not substantially outweigh the value of the testimony as part of the res gestae of the crime. The G overnment’s questioning related to the marijuana debt was brief and served to provide context for the circumstances leading up t o the assaults Robertson committed. We have similarly upheld evidence that
discussed previous wrongful conduct by defendants in order to “provide a total picture of the charged crime.” United States v. Tyerman , 701 F.3d 552, 562 (8th Cir. 2012) (internal quotation marks omitted)

. Although a risk of prejudice exists when allowing references to a defendant’s prior bad acts, see Fed. R. Evid. 404 advisory
committee notes (1972) (Note to Subdivision (a)), we do not find the district court clearly abused its discretion by allowing this evidence given its probative value to explain the reason for the conflict between Robertson and the Quick Bears

. See
United States v. Rabins , 63 F.3d 721, 726 (8th Cir. 1995) (“We accord great deference to the [d]istrict [c]our t’s application of the Rule 403 balancing test

. . . .”).

III.

Robertson also argues the district court should have given a limiting instruction to the jury regarding the prosecutor’s cross

- examination that established
Robertson was not permitted to possess firearms at the time of the shooting

. 1

1 A heading in Robertson’s table of contents states that he appeals the admission of “firearm possession testimony at trial, ” but his argument only discusses the court’s imp roper refusal to give a limiting instruction to the jury regarding that testimony

. B ecause Robertson failed to support his challenge to the admission of the firearm possession testimony with any argument, reasoning, or citation to authority, we consider that challenge waived. See United States v. Howard , 532 F.3d 755, 760 (8th Cir. 2008).- 7

- Robertson requested that the court g ive an instruction stating, “Simply because a Defendant is not permitted to be in possession of a firearm does not mean he is necessarily guilty of violating a statute prohibiting possession of a firearm if he should come into control of the firearm for pu rposes of self

- defense.” We review a court’s refusal to give a defendant’s proposed instruction for an abuse of discretion.
United States v. Jewell , 614 F.3d 911, 927 (8th Cir. 2010).

The district court rejected the requested instruction on the ground s that its Preliminary Instruction No. 1 sufficiently instructed the jury that Robertson was on trial only for the offenses charged in the s uperseding i ndictment. We have upheld refusals to give requested jury instructions when, “e ven assuming [the] reque sted
instructions were accurate statements of the law

. . . , the jury instructions given by the district court correctly and adequately stated the applicable law.” Jewell , 614
F.3d at 927 (emphasis added) ; see United States v. Anderson , 533 F.3d 623, 632 (8th Cir. 2008) (indicating a defendant is not entitled to a “ particularly worded
instruction ” so long as the instructions as a whole correctly state the law). Robertson was not charged with unlawful possession of a firearm , making its requested
instruct ion irrelevant

. Therefore, the district court did not abuse its discretion in denying the requested instruction

.

I V

.

Finally , we address Robertson’s claim that the district court improperly imposed three supervised release conditions at sentencing

. Robertson challenges
two of the special condition s on constitutional grounds

, which we would normally
review de novo

. See United States v. Washington , 893 F.3d 1076, 1081 (8th Cir. 2018). But we review for plain error when a defendant fail s to timely and specifically object to s uch conditions at sentencing. United States v. Simons , 614 F.3d 475, 478 (8th Cir. 2010). At Robertson’s sentencing, his attorney vaguely objected to the “ sentence ” under 18 U.S.C. § 3553 and the Constitution. But he did

not explicitly object to any condition of supervised release

. We therefore review Robertson’s challenges to the supervis ed release conditions for plain error. See- 8

- Simons , 614 F.3d at 479 (holding that plain error re view applied when an attorney “presented only a general objection to the special condit ions” ). “To qualify for relief under this standard, the appellant must show that the district court committed an error that is clear under current law, that the error a ffects his substantial rights, and that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Wisecarver , 644 F.3d 764, 775 (8th Cir. 2011).

Robertson argues that t he district court improperl y imposed three condit ions requiring him to : (1) submit a sample of his blood, breath, or bodily fluids at the discretion of the probation office; (2) i nform a person of a risk he poses to them

, i f
his probat ion officer determines he poses a r isk to that person ; and (3) refrain from

consum ing alcohol or frequent ing establishments whose primary business is selling alcoholic beverages. We hold that the district court did not plainly err in imposing
the blood and risk conditions , but we find plai n error with respect to the alcohol
condition.

First, R obertson argues that both the blood and risk conditions are unconstitutional delegations of judicial authority to a probation officer because they
allow the officer to determine whether he poses a ris k to any person, order him to notify such persons of the risk , and command the production of his bodily fluids

. We have held a special condition of supervised release is an impermissible delegation of authority “ only whe re the district court gives an affi rmative indication
that it will not retain ultimate authority over all of the cond itions of supervised
release

. ” United States v. Thompson , 653 F.3d 688, 693 (8th Cir. 2011) ( internal quotation marks omitted ). Robertson points to n othing in the record to show th e district court disclaimed ultimate authority over Robertson’s supervision. The court made no affirmative indication it was doing so. Thus, the risk and blood conditions were not unconstitutional delegations of authority.

Second

, the district court did not plainly err in holding that the risk condition

was not unconstitutionally vague. We have held that a term in a supervised release
condition i s “not unconstitutionally vague [when] its scope can be ascertained with- 9

- sufficient eas e.” United States v. Key , 832 F.3d 837, 840 (8th Cir. 2016) ( quoting
Smith v. United States , 431 U.S. 291, 309 (1977) ). Robertson asserts th is condition
is vague because the term “risk” is undefined by statute and has wide

- ranging meanings

. But the condition states that Robertson’s probation officer will determine
whether Robertson poses a risk to a particular person, and only then may he require Robertson to notify that person of the particular risk. Thus, the “scope of this
condition can b e ascertained with sufficient ease,” Key , 832 F.3d at 840, because the probation officer will identify and communicate the risk to Robertson before Robertson has a duty to inform another person of th at risk

, s ee United States v. Hull

, 893 F.3d 1221, 1223

- 3 4 (10th Cir. 2018) (upholding a similar condition of supervised release)

. Moreover, i f there is genuine confusion about what the condition requires, Robertson “may ask questions of his probation officer, who is statutorily required to instruct [him]

. . . as to the conditions specified by the sentencing court.” United States v. Forde , 664 F.3d 1219, 1224 (8th Cir. 2012) (internal quotation marks omitted). Although this is a close question and some circuits have refused to uphold s imilar risk conditions, see United States v. Evans

, 883 F.3d 1154, 1163

- 64 (9th Cir. 2018)

, the fact that this is a close question means that the error is not plain

. See United States v. Olano

, 507 U.S. 725, 734 ( 1993 ) (noting that “plain” in plain error standard is synonymous with “clear or “obvious”).

Lastly, Robertson asserts that the supervised released condition banning him from consuming alcohol and frequenting establishments that primarily serve alcohol is unsupported by the record because the re is no evidence that the offense involved alcohol or that Robertson ever had problems related to alcohol

. The relevant precedent here also dictates that “a history of drug abuse can support a condition prohibiting the consumption of alcohol” but “only where the defendan t is truly drug dependent.” United States v. Bell , 915 F.3d 574, 577 (8th Cir. 2019). “ [R] epeated [drug] use and light alcohol consumption are not necessarily sufficient to establish dependency, which exists when a person is psychologically or physiologi cally
reliant on a substance.” Bell , 915 F.3d at 577 (internal quotation marks omitted).- 10

- We have also held that when there is “a complete lack of explanation for imposition of [a] condition, the error . . . substantially affects the fairness, integrity, or public reputation of judicial proceedings.” Wisecarver , 644 F.3d at 776.

W e find that the district court plainly erred in imposing Robertson’s alcohol condition because the district court did not explain its basis for the condition

, Robertson’s of fense did not involve alcohol, and the record does not show that
Robertson was alcohol or drug dependent

. See Wisecarver , 644 F.3d at 775

- 76 (finding that imposition of an alcohol

- related supervised release condition was plain
error when the defendant had not previously had alcohol problems and the district court “gave no explanation

. . . when it imposed the conditions”). The only mention
of alcoh ol in the record involved Robertson consuming alcohol on New Year’s Day in 2017, approximately three months before the offense. In addition, a lthough Robertson has a history of drug convictions as recent as 2009

, the district court did not make individualized findings about his drug use

. See Bell , 915 F.3d at 578. ( vacating an alcohol condition when the district court did not make individualized findings and noting that a previous drug conviction did not show drug dependence)

. Th us , due to the district court’s lack of explanation for this condition and the lack of
evidence that Robertson was drug dependent

, the error “substantially affect [ed] the fairness, integrity, or public reputation of the judicial proceedings

, ” and Robertson is entitled to “plain error relief.” See Wisecarver , 644 F.3d at 776.

V.

For the foregoing reasons, we affirm the district court’s evidentiary rulings and refusal to give the limiting instruction, as well as its imposition of the blood and risk supervised release conditions . But we vacate the alcohol

- related condition and
remand to the district court for further proceedings not inconsistent with this opinion

.

______________________________