United States Court of Appeals

For the Eighth Circuit

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No. 15-1552

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Terry L. Harlan

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: November 20, 2015

 Filed: February 16, 2016

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Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

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RILEY, Chief Judge.

A jury found Terry Lee Harlan, a Native American man, guilty of domestic

assault in Indian country by an habitual offender in violation of 18 U.S.C. § 117. The
district court sentenced Harlan to 41 months imprisonment. Harlan appeals his

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conviction and sentence. With jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND2

Harlan lived with his girlfriend Marlene Freemont, a Native American woman,

in his trailer home on the Omaha Indian Reservation. Freemont moved out for two

weeks early in 2014 and spent some time with another man. When Harlan and

Freemont got back together in March, Freemont lied about seeing another man for

fear Harlan would hit her. Harlan, who earlier had seen Freemont with the man, got

mad about the lie and hit the windshield of the car he and Freemont were sitting in.

On March 6, 2014, the evening Freemont returned, she and Harlan drank beer

together and Freemont, a long-time methamphetamine user, got high. Harlan

eventually went to bed, but Freemont stayed up all night drinking beer into the next

day. Harlan stayed sober for a while the next day, but began drinking with Freemont

again in the evening. Both were drunk by 8:00 p.m., and Freemont was still high on

meth from the day before. 

Harlan’s sister, Andrea Harlan, and Harlan’s thirteen-year-old daughter, K.H.,

joined the couple at the trailer later that night. Harlan and Freemont adjourned to the

bedroom to keep drinking and watch television. Harlan got mad when Freemont

mentioned the other man she dated and pushed Freemont into the closet with both

hands. Despite Freemont’s pleas for Harlan to stop, he grabbed her by the hair and

struck her face and head about eight times. Freemont fell to the floor, and Harlan

kicked her body twice.

The Honorable Lyle E. Strom, United States District Judge for the District of 1

Nebraska.

“We present the facts in the light most favorable to the jury’s verdict.” United

2

States v. Fuller, 557 F.3d 859, 862 (8th Cir. 2009). 

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When Harlan stopped, Freemont reached for her shoes and sweater so she

could leave, but Harlan tossed themaside and began hitting her again, asking whether

she intended to see another man. Harlan then ordered Freemont to lay on their bed

while he went to sleep. After Harlan passed out, Freemont left the trailer to report the

beating to the police. On her way out, Freemont asked Andrea if she had seen

Freemont’s sweater. She had not, so, despite the cold weather, Freemont left the

trailer wearing only a short-sleeved shirt and sweat pants. As she left, Freemont told

Andrea to tell Harlan that Freemont was going to report what Harlan had done.

 

No one was at the police station when Freemont arrived. She was able to flag

down an officer from a nearby town who contacted Omaha Nation Law Enforcement

Services, the department with jurisdiction over assaults between Native Americans

on the reservation. Officer William Webster responded and took Freemont’s

statement and examined her injuries. Officer Webster called an ambulance so a

member of the rescue squad could evaluate Freemont’s injuries and arranged for

Freemont to spend the night in jail to sleep off her substantial intoxication.

After her release early the next morning, Freemont sought treatment at Indian

Health Services Hospital in Winnebago, Nebraska, reporting she had been assaulted. 

Physician assistant Carmel Berglin, who has extensive experience treating assault

victims, examined Freemont. Freemont told Berglin that Harlan punched her in the

face and chest and grabbed her right arm.

Berglin observedmultiple contusions, including a bruise over Freemont’s right

cheek bone, and tenderness on Freemont’s face and head. Berglin also noted a large

contusion on Freemont’s forearm, a bruise on her chest, and tenderness along her ribs. 

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After the assault, Freemont stayed with her mother. When Freemont did return

to the trailer to see Harlan, he told her he was sorry and would not hit her again, but

there was nothing he could do about what he had done. 

On June 18, 2014, a grand jury charged Harlan with domestic assault in Indian

country by an habitual offender. See 18 U.S.C. § 117. The indictment charged that

Harlan had multiple prior convictions for domestic assault, including, as relevant

here, a 2002 tribal-court conviction for simple assault and a 2003 federal conviction

for assault resulting in serious bodily injury. On October 27, 2014, Harlan filed a

motion in limine challenging the admissibility of his 2002 tribal-court conviction.3

Harlan argued the prior conviction was for attempt, not assault. The district court

denied the motion. 

Harlan’s jury trial began on November 17, 2014. The government first called

Freemont, who described the assault in vivid detail. Berglin testified Freemont’s

injuries were entirely consistent with her description of the assault. On crossexamination, Berglin opined some—but not all—of Freemont’s injuries could have

resulted from a fall.

In support of his motion in limine, Harlan entered into the record Omaha

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Tribal Code § 5-4-4(a) (2013), which states, in relevant part, “A person is guilty of

simple assault if he . . . attempts to cause or purposely, knowingly, or recklessly

causes bodily injury to another; or . . . attempts by a show of force or violence to put

another in fear of imminent serious bodily injury.” When asked at oral argument why

the record did not include the 2002 version of the tribal statute under which Harlan

pled guilty, Harlan explained the Tribal Code was revised in 2003 and he was unable

to find the 2002 version. Relying on the alignment between the language in the

charging documents and the current version of § 5-4-4, Harlan maintains the statutes

were renumbered but the elements of simple assault did not change. We accept the

parties’ use of the record version.

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The government next called Freemont’s sister Delilah Freemont (Delilah), who

had an intimate relationship with Harlan more than a decade earlier. While they were

together, Harlan assaulted Delilah multiple times. Over Harlan’s renewed objection,

the district court admitted three exhibits showing two of Harlan’s prior assault

convictions. Exhibits 1 and 2 described Harlan’s 2003 federal conviction for

assaulting Delilah and causing serious bodily injury. Exhibit 3 documented Harlan’s

2002 tribal-court conviction for simple assault on Delilah. After briefly

acknowledging her past relationship with Harlan, Delilah stated that a week after the

assault on Freemont, Delilah observed injuries on Freemont consistent with

Freemont’s description of the assault. 

Harlan’s sister Andrea testified that on the night of the charged assault, she

returned to the trailer where she lived with Harlan and Freemont. Andrea stated she

and K.H. watched television in the living room when Harlan and Freemont went to

the bedroom. Both Harlan and Freemont were drinking alcohol, and Harlan needed

help to the bedroombecause he was physically impaired by the alcohol. Andrea soon

heard arguing. When she went to the bedroom to investigate, Andrea learned Harlan

was mad because Freemont would not go to bed and let him sleep.

 

Andrea denied hearing anything suggesting a physical struggle, assault, or

someone falling down. Andrea testified Freemont later came out of the bedroom

asking for a sweater, but left without one when Andrea told her she did not have one. 

Andrea did not notice any bleeding or other signs of a fight when Freemont left the

trailer and testified Freemont did not mention any injuries and did not ask for any

help. Freemont did not return, but the police arrived thirty to forty minutes later to

investigate.

K.H. testified next. K.H. observed Harlan and Freemont drinking and talking

at the kitchen table the night of the assault. Shortly after K.H. helped Harlan to the

bedroom, K.H. heard yelling and went to the bedroom to see what was happening. 

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K.H. asked Harlan, who appeared to be mad, why he was yelling, and he replied

Freemont would not let him sleep. 

K.H. made at least two or three trips to the bedroom to investigate the yelling. 

At one point, K.H. observed Harlan sitting on the bed with Freemont standing nearby. 

When Harlan moved, Freemont raised her hands to defend herself. K.H. asked why

she reacted that way, and Freemont replied she thought Harlan was going to hit her

as he had before. K.H. never saw a physical altercation between Harlan and Freemont

and did not hear anyone falling down. K.H. did observe Freemont crying, but

Freemont explained she was sad about a friend who died. K.H. did not think

Freemont looked like she was hurt. Like Andrea, K.H. recalled Freemont later asking

for a sweater and leaving the trailer without a sweater even though it was cold. K.H.

stated the police arrived about thirty minutes after Freemont left. 

Officer Webster testified he took a report from Freemont the night of the

assault. Recalling Freemont was not dressed appropriately for the cold weather that

night, Officer Webster testified she appeared to be intoxicated and afraid. Freemont

told Officer Webster that Harlan had assaulted her, and showed himthe injuriesto her

right cheek and forehead. After taking Freemont to jail and arranging for a medical

evaluation, Officer Webster went to Harlan’s trailer. Visibly intoxicated, Harlan

denied having a physical altercation with Freemont, and Officer Webster did not see

any marks on Harlan’s hands. Officer Webster arrested Harlan, who needed

assistance to walk to the squad car. 

The government entered certain factual stipulations about Harlan’s prior

convictions and his trailer’s location in Indian country before resting its case. Harlan

did not testify or call any witnesses. On November 19, 2014, the jury found Harlan

guilty. 

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Before sentencing, Harlan moved for a sentence below the advisory United

States Sentencing Guidelines (Guidelines) range based on his poor physical health.

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The government resisted the motion, highlighting Harlan’s history of assaultive

conduct and observing his health problems did not prevent him from getting drunk

and assaulting Freemont. 

After reviewing Harlan’s brief and hearing the parties’ arguments, the district

court denied Harlan’s motion. Troubled by Harlan’s failure to accept responsibility

for the assault and his lack of remorse for hurting Freemont, the district court

sentenced Harlan to 41months—the bottomofthe advisoryGuidelines range. Harlan

appeals, challenging the admission of his tribal-court conviction, the sufficiency of

the evidence, and his sentence.

II. DISCUSSION

A. Harlan’s Tribal-Court Conviction

Section 117(a)(1) provides in relevant part,

Any person who commits a domestic assault within . . . Indian country

and who has a final conviction on at least 2 separate prior occasions in

Federal, State, or Indian tribal court proceedingsfor offenses that would

be, if subject to Federal jurisdiction . . . any assault, sexual abuse, or

serious violent felony against a spouse or intimate partner . . . shall be

fined under this title, imprisoned for a term of not more than 5 years, or

both. 

(Emphasis added). Over Harlan’s objection, the district court admitted evidence that

in 2002, Harlan pled guilty in tribal court to assaulting Delilah in Indian country

Harlan suffers from a number of health problems, including diabetes,

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hypertension, end-stage renal disease, coronary artery disease, congestive heart

failure, cerebral palsy, and anemia chronic disease. He needs dialysis several times

per week and takes a long list of medications. 

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while they were in an intimate relationship. The district court concluded the phrase

“any assault” in § 117(a)(1) unquestionably included Harlan’s simple-assault

conviction under the tribal code. Harlan argues the district court erred in admitting

his 2002 tribal-court conviction based on an erroneous interpretation of 18 U.S.C.

§ 117(a)(1).

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We review de novo issues of statutory interpretation. See, e.g., United States

v. Woodard, 694 F.3d 950, 953 (8th Cir. 2012); United States v. Boaz, 558 F.3d 800,

806 (8th Cir. 2009). “We review the district court’s evidentiary rulings, including its

rulings on motionsin limine, for an abuse of discretion.” United States v. Parish, 606

F.3d 480, 486 (8th Cir. 2010).

Harlan contends the district court abused its discretion in denying his motion

in limine and admitting evidence of his 2002 simple-assault conviction as a predicate

offense for § 117(a)(1) because, in Harlan’s view, a closer examination of the

charging documents reveals Harlan pled guilty to a charge of “Attempt and not

[actual] Assault.” Pointing to language in the criminal complaint stating he

“attempt[ed] to cause bodily injury” to Delilah Freemont, Harlan asserts “prior

convictions for Attempt cannot be used as predicate offenses to fulfill the necessary

elements to prove a violation of 18 U.S.C. § 117.” Harlan misunderstands the nature

of criminal assault.

On December 14, 2015, the United States Supreme Court granted certiorari to 5

consider “whether reliance on valid uncounseled tribal-court misdemeanor

convictions to prove Section 117(a)’s predicate-offense element violates the

Constitution.” See United States v. Bryant, 769 F.3d 671, 673 (9th Cir. 2014), cert.

granted, No. 15-420, 2015 WL 5822186 (U.S. Dec. 14, 2015). We have held it does

not. See United States v. Cavanaugh, 643 F.3d 592, 594 (8th Cir. 2011); accord

United States v. Shavanaux, 647 F.3d 993, 998 (10th Cir. 2011). The Ninth Circuit

recently decided it does. See Bryant, 769 F.3d at 673. That issue is not before us

because Harlan did not raise the issue on appeal.

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In construing § 117(a), we start with “the language employed by Congress.” 

Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979). Neither § 117 nor any other

provision of the chapter where § 117 resides defines the term “assault.” See

18 U.S.C. ch. 7. “[W]here a federal criminal statute uses a common-law term of

established meaning without otherwise defining it, the general practice isto give that

term its common-law meaning.” United States v. Turley, 352 U.S. 407, 411 (1957). 

“‘Common law assault embraces two different crimes: [(1)] attempted battery, that

is, an intended effort to cause bodily harm to another which falls short of success

. . . regardless of whether the intended victim knows of the attempt,’” and (2) any “act

which is intended to, and reasonably does, cause the victim to fear immediate bodily

harm; such ‘menacing’ constitutes assault even if no physical harm is attempted,

achieved, or intended.” United States v. Olson, 646 F.3d 569, 573-74 (8th Cir. 2011)

(alteration omitted) (quoting United States v. Lee, 199 F.3d 16, 18 (1st Cir. 1999)). 

The offense underlyingHarlan’s 2002 tribal-court conviction for simple-assault

readily fits the first part of the common-law definition. See Anderson v. Crawford,

265 F. 504, 507 (8th Cir. 1920) (“While a battery always included an assault, assaults

often fall short of a battery. An assault is an attempt, which, if consummated, would

result in a battery.”). The district court did not err in denying Harlan’s motion in

limine and in allowing the government to use his simple-assault conviction as a

predicate offense under § 117(a).

B. Sufficiency of the Evidence

Harlan next contendsthe evidence wasinconsistent and insufficient to convict

him of assaulting Freemont in violation 18 U.S.C. § 117. Questioning Freemont’s

perception, memory, and credibility, Harlan emphasizes (1) Freemont was under the

influence of drugs and alcohol; (2) Berglin testified some of Freemont’s injuries

possibly could have come from a fall; (3) Harlan was “drunk and disabled” and had

no marks on his hands; and (4) Andrea and K.H. did not see the assault or any injuries

before Freemont left the trailer. According to Harlan, “[s]uch facts could easily lead

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a reasonable jury to conclude that the injuries [Freemont] sustained were due to

multiple fallsinto fixed, hard objects, as opposed to the result of an assault committed

by Harlan.”

That may be true, but it is not the proper inquiry on appeal. The question we

must answer is not whether the jury could have reasonably decided the case

differently, but whether “no reasonable jury could have found [Harlan] guilty beyond

a reasonable doubt.” United States v. Carlson, 787 F.3d 939, 943 (8th Cir. 2015). In

deciding that question, we view the “evidence in the light most favorable to the jury’s

verdict, resolv[e] conflicts in the government’s favor, and accept[] all reasonable

inferences that support the verdict.” United States v. Dunn, 723 F.3d 919, 924 (8th

Cir. 2013). “We do not weigh the evidence or the credibility of the witnesses.” 

United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir. 2007). “[T]he jury has sole

responsibility for resolving conflicts or contradictions in testimony, and we must

resolve credibility issues in favor of the verdict.” United States v. Spears, 454 F.3d

830, 832 (8th Cir. 2006). 

In that light, the evidence adduced at trial was more than sufficient to support

the jury’s guilty verdict. Despite her intoxication, Freemont provided the jury with

a detailed account of the altercation she had with Harlan, the beating he gave her, and

the injuries he inflicted. Leaving the trailer when Harlan fell asleep, Freemont

promptly reported the assault to Officer Webster, who testified Freemont appeared

to be afraid. Officer Webster verified Freemont’s reported injuries and investigated

the assault. As soon asshe could, Freemont sought treatment at the hospital. Berglin

testified Freemont’s injuries to her head, face, chest, ribs, and arm were entirely

consistent with Freemont’s report that Harlan punched her about eight times, grabbed

her right arm, and kicked her while she was down. Although no one else witnessed

the actual assault, testimony from Andrea and K.H. also bolstered Freemont’s

account. Both Andrea and K.H. heard Harlan yelling at Freemont for a long period

of time. K.H., who went back to the bedroom several times to investigate, testified

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that when Harlan moved, Freemont raised her hands to defend herself, explaining she

was afraid Harlan would hit her again. It was reasonable for the jury to credit

Freemont’s corroborated testimony and find Harlan guilty of domestic assault. 

C. Substantive Reasonableness

Harlan last argues his sentence was substantively unreasonable because the

district court did not vary downward “fromthe advisory guidelinesrange for Harlan’s

various serious health problems.” We review the substantive reasonableness of a

sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). 

“A district court abuses its discretion and imposes an unreasonable sentence when it

fails to consider a relevant and significant factor, gives significant weight to an

irrelevant or improper factor, or considersthe appropriate factors but commits a clear

error of judgment in weighing those factors.” United States v. Miner, 544 F.3d 930,

932 (8th Cir. 2008). Harlan’s within-Guidelines sentence is presumptively

reasonable. See Gall, 552 U.S. at 51. Harlan fails to rebut that presumption. 

Harlan acknowledges the district court considered his myriad health problems

in imposing his sentence, but complains the district court should have given more

weight to that factor. “The fact the district court did not give [Harlan’s health

problems] as much ‘weight’ as [Harlan] would have preferred does not justify

reversal.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). “The district

court has wide latitude to weigh the [18 U.S.C.] § 3553(a) factors in each case and

assign some factors greater weight than others in determining an appropriate

sentence.” Id. 

Here, the district court sentenced Harlan at the bottom of the Guidelines range

after considering various factors such as Harlan’s health, his history of criminal

assault, the seriousness of domestic violence, Harlan’s failure to acceptresponsibility

for his actions, and his lack of remorse for harming Freemont. “‘[T]he court carefully

explained the reasons for its sentence and its refusal to vary downward, and we see

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no indication that the court improperly weighed the sentencing factors.’” United

States v. Wanna, 744 F.3d 584, 589 (8th Cir. 2014) (quoting United States v. Von

Crutcher, 529 F. App’x 802, 803 (8th Cir. 2013) (unpublished per curiam)). Harlan’s

sentence is substantively reasonable. 

III. CONCLUSION

We affirm Harlan’s conviction and sentence.

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