United States Court of Appeals

For the Eighth Circuit

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No. 19-3207

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Cyrus Allan Free

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: May 15, 2020

Filed: October 1, 2020

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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges. 

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WOLLMAN, Circuit Judge.

A jury found Cyrus Allan Free guilty of the following offenses: aggravated

sexual abuse of a minor under the age of twelve years old, in violation of 18 U.S.C.

§§ 2241(c) and 1153 (count I); sexual abuse of a minor between the ages of twelve

and sixteen years old, in violation of 18 U.S.C. §§ 2243(a) and 1153 (count III); and

abusive sexual contact, in violation of 18 U.S.C. §§ 2244(a)(3) and 1153 (count V). 
The district court1

 sentenced Free to life imprisonment on count I, 180 months’

imprisonment on count III, and 24 months’ imprisonment on count V, with the

sentences to run concurrently. Free argues that the district court abused its discretion

in excluding certain evidence, that the evidence was insufficient to support his

conviction on count I, and that his sentence is substantively unreasonable. He also

raises a claim of ineffective assistance of counsel, which we do not address because

it is premature. See United States v. Oliver, 950 F.3d 556, 566 (8th Cir. 2020) (“We

review ineffective-assistance claims on direct appeal only ‘where the record has been

fully developed, where not to act would amount to a plain miscarriage of justice, or

where counsel’s error is readily apparent.’” (quoting United States v. Thompson, 690

F.3d 977, 992 (8th Cir. 2012))). We affirm.

G.M. lived with her grandmother, Veronica Free, for most of her life. Cyrus

Free moved into the home when G.M. was five. Although he was not married to

Veronica, G.M. referred to Free as her grandfather. During the school day on April

19, 2017, when G.M. was fourteen years old, she told a friend that her grandfather

had been raping her. The allegations were eventually relayed to a school

administrator, who then called child protective services. 

School administrators brought G.M. to a child protective services office on

April 20, 2017, where she reported that Free had sexually abused her. G.M. then was

taken to the emergency room and thereafter transferred to a different hospital for an

examination by a Sexual Assault Nurse Examiner. G.M. reported that her grandfather

had last assaulted her on April 18, 2017, when he engaged in vaginal intercourse

while wearing a condom. G.M. left for a school trip to Washington D.C. soon

thereafter.

1The Honorable Robert F. Rossiter, Jr., United States District Judge for the

District of Nebraska.

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While executing a search warrant, a law enforcement officer discovered a used

condom and wrapper in the garbage can outside Veronica Free’s home. DNA

analysis revealed that the condom contained a DNA profile consistent with a mixture

of two individuals, Free and G.M. Free was eventually arrested and charged with the

offenses set forth above, among others.

G.M. testified at trial that Free began molesting her when she was eight years

old. According to G.M., “he started putting his fingers inside [her] vagina, and it just

kept getting worse over the years.” Free began trying to have vaginal intercourse

with G.M. when she was nine years old, but was physically unable to penetrate her

until she was eleven. G.M. testified that he would instead anally penetrate her and

would often force her to perform oral sex on him. When G.M. became older, Free

would regularly have vaginal intercourse with her, sometimes using a condom. He

told her not to tell anyone about the sexual abuse, threatening to hurt her grandmother

and siblings if she did so. G.M. stated that her grandmother twice entered a room

while G.M. was performing oral sex on Free. Veronica Free testified that Free

sometimes slept in G.M.’s room and that she once had walked into a room to find

Free lying on the bed, with G.M. sitting on her knees by Free’s waist. 

G.M. testified on cross-examination that she had been accepted into a special

school program, in which students took advanced classes, went on annual trips, and

received college scholarships. G.M. testified that she sometimes got into trouble, but

the district court disallowed questions regarding whether Veronica and Cyrus Free

had found marijuana in G.M.’s bedroom and whether they had made G.M. take an

over-the-counter drug test.

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Free was found guilty on all counts.2

 At sentencing, the district court

determined that Free’s total offense level was 43, that his criminal history category

was V, and that his sentencing range under the U.S. Sentencing Guidelines

(Guidelines) was life imprisonment. 

Free argues that the district court abused its discretion in excluding evidence

that G.M. had kept drugs in her bedroom and had tested positive for marijuana use

shortly before she disclosed that Free had been sexually abusing her. See United

States v. Battle, 774 F.3d 504, 512 (8th Cir. 2014) (standard of review). Relevant

evidence of a prior act is not admissible to prove a person’s character in order to show

that on a particular occasion she acted in accordance with the character. Fed. R. Evid.

404(b)(1). Such evidence may be admissible, however, to prove “motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Fed. R. Evid. 404(b)(2). Evidence is relevant if it tends to make

a fact more or less probable and the fact is of consequence in determining the action. 

Fed. R. Evid. 401. 

Free contends that the excluded evidence would have helped prove his theory

that G.M. falsely accused him of rape to prevent him from punishing her. He argues

that “[t]he fact that Free might have been disciplining G.M. for misconduct was

crucial to explaining why G.M. might have a reason to lie about the abuse.” 

Appellant’s Br. 21. We agree that the evidence of Free’s discipline of G.M. was

relevant, in that it had a tendency to make it more probable that G.M. leveled a false

accusation against Free to retaliate against him and to avoid future punishment. The

district court did not limit defense counsel’s inquiry into Free’s discipline of G.M.,

however, leaving counsel free to ask whether G.M. was concerned that Free would

punish her for misconduct by forbidding her from attending the school trip to

2The district court vacated Free’s convictions on counts II and IV as potentially

lesser included offenses of counts I and III. 

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Washington D.C. The district court disallowed only questions regarding G.M.’s

having marijuana in her room and being required to take a drug test. Any evidence

of G.M.’s drug use would not have tended to prove the alleged motives of retaliation

and avoiding punishment. We thus find no abuse of discretion in the district court’s

decision to exclude the evidence.

Free next argues that the evidence was insufficient to convict him of count I

of the indictment, which alleged that Free had knowingly engaged in a sexual act and

had caused G.M. to engage in a sexual act before she attained the age of twelve years,

in that he “did digitally penetrate G.M.’s vaginal opening with his finger.” We

review the sufficiency of the evidence de novo, viewing the evidence in the light most

favorable to the verdict and giving the verdict the benefit of all reasonable inferences. 

United States v. Fool Bear, 903 F.3d 704, 708 (8th Cir. 2018). We will reverse a

conviction “only if no reasonable jury could have found the defendant guilty beyond

a reasonable doubt.” Id. (quoting United States v. Tillman, 765 F.3d 831, 833 (8th

Cir. 2014)). 

Free contends that the government failed to prove that any sexual act occurred

before G.M. turned twelve years old. See id. at 710 (“Age is a necessary element of

the offense: the victim must be ‘another person who has not attained the age of 12

years.’” (quoting 18 U.S.C. § 2241(c))). As set forth above, G.M. testified that the

abuse began when she was eight and that she knew that the digital penetration began

before she was twelve because, despite his attempts to do so, Free was unable to have

vaginal intercourse with her until she was eleven. G.M.’s testimony on her age and

the sexual act was unequivocal:

Q: I want to go back to when you were talking about him putting his

fingers into you. Did that take place before you turned 12 years

old?

A: Yes.

. . . 

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Q: Okay. And how did you know that it was his finger as opposed

to an object or some other body part?

A: Because he was putting his hand in that area and he told me he

was going to do it.

A reasonable jury thus could rely on G.M.’s testimony to find that Free digitally

penetrated G.M. before she was twelve years old. See Fool Bear, 903 F.3d at 710

(holding that victim’s testimony was sufficient to prove that she was younger than

twelve when the aggravated sexual abuse occurred); United States v. DeCoteau, 630

F.3d 1091, 1097 (8th Cir. 2011) (“[A] victim’s testimony alone can be sufficient to

prove aggravated sexual abuse.”); see also United States v. Never Misses A Shot, 781

F.3d 1017, 1025 (8th Cir. 2015) (“[I]t is for the jury, not a reviewing court, to

evaluate the credibility of witnesses and to weigh their testimony.” (quoting United

States v. Mallen, 843 F.2d 1096, 1099 (8th Cir. 1988))).

Finally, Free argues that he should have been sentenced to the mandatory

minimum sentence of thirty years’ imprisonment, see 18 U.S.C. § 2241(c), which

would “put [him] into his eighties when he is released.” Appellant’s Br. 27. He

contends that because he would be statistically unlikely to recidivate at that age, the

life sentence imposed by the district court is greater than necessary to serve federal

sentencing goals under 18 U.S.C. § 3553(a). The record reveals that the district court

gave due consideration to defense counsel’s well-thought-out, well-presented

argument for a lesser-than-life sentence, and we conclude that it did not abuse its

discretion in determining that Free’s age did not warrant a downward variance from

the advisory Guidelines sentence. See United States v. Feemster, 572 F.3d 455, 461

(8th Cir. 2009) (en banc) (standard of review); see also United States v. King, 898

F.3d 797, 810 (8th Cir. 2018) (“The district court’s decision not to weigh mitigating

factors as heavily as [the defendant] would have preferred does not justify reversal.”

(internal quotation marks and citation omitted)).

The judgment is affirmed. 

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