F I LED

United States Court of Appeals

Tenth Circuit

August 29, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 06-4173

REO BENALLY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. NO. 2:06-CR-381-TS)

Deirdre A. Gorman, Ogden, Utah, for Defendant-Appellant.

Karin M. Fojtik, Assistant United States Attorney, (Brett L. Tolman, United

States Attorney with her on the brief), Salt Lake City, Utah, for PlaintiffAppellee.

Before MURPHY, McWILLIAMS, and McCONNELL, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Defendant-Appellant Reo Benally was convicted by a jury of one count of

aggravated sexual abuse of a minor under the age of sixteen while in Indian
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Country, in violation of 18 U.S.C. § 2241(c) and § 1153(a). Benally was

sentenced to 324 months’ imprisonment to be followed by five years’ supervised

release. Benally appeals his conviction, arguing the district court improperly

admitted the testimony of four witnesses regarding Benally’s prior acts of sexual

assault. This court takes jurisdiction pursuant to 28 U.S.C. § 1291. We conclude

the district court did not abuse its discretion by admitting the evidence and affirm

Benally’s conviction. 

II. Background

The events giving rise to the charged conduct occurred while Benally was

acting as guardian to his twelve year old granddaughter, N.W. N.W.’s mother,

Rowena A., had left N.W. and her two sisters, S.A. and K.W., ages six and four,

respectively, in the care of Benally while Rowena was living in Phoenix, Arizona. 

Benally also had custody of two of his natural children, J.B.1, a nine-year old

boy, and J.B.2, a six-year old girl. On August 23, 2003, Benally took all five

children swimming at a river near the family sheep farm on the Navajo

reservation in White Mesa, Utah. The group spent the night in the family’s oneroom hogan.

According to N.W.’s testimony at trial, N.W. and her sisters were sharing a

bed, J.B.1 and J.B.2 slept on a separate bed, and Benally slept on a couch between

the two beds. At some point during the night, N.W. woke up to find Benally

naked and holding a knife to her neck. N.W. testified Benally said he would cut
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her if she resisted him. She claimed to have pushed Benally away with her legs

and to have grabbed the knife and thrown it across the room. N.W. said Benally

then choked her and attempted to remove her from the hogan by pulling her hair

and dragging her towards the door. She claimed that at least some of the other

children were awake and crying. N.W. testified she lost consciousness from

being choked, but that when she regained consciousness, she was back on the bed,

her clothing had been removed, and Benally was applying lotion to and rubbing

her genitals with his fingers and penis and kissing her legs and breasts. N.W.

asserted Benally eventually stopped, put his clothes on, grabbed his car keys, and

said he was going to commit suicide. She said he gave her twenty-two dollars

and asked her not to disclose the events that had transpired. Benally ultimately

did not leave because J.B.1 asked him to stay to drive J.B.1 and J.B.2 back to

their boarding school.

The other young children present during the alleged assault also testified at

trial. None had a very detailed recollection of the incident, which occurred

almost three years earlier, but most remembered either seeing Benally without his

clothes on top of N.W. or said Benally was next to N.W. on the bed. Several

indicated they were scared or crying or heard N.W. crying or screaming. The

testimony of J.B.1, the oldest child among the group other than N.W.,

corroborated N.W.’s testimony as to Benally’s use of a knife in threatening N.W.,

but J.B.1’s testimony was that Benally put the knife away when he got off of
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N.W. and put on his clothes. J.B.1 also corroborated N.W.’s assertion that

Benally gave her money at the end of the incident.

N.W. testified that, after Benally got off of her, she went outside with her

sisters, but when it started sprinkling, Benally told her to come back inside and go

to sleep. The next day, Benally took all the children back to his house in Teec

Nos Pos, Arizona. After returning to Benally’s home, N.W. told her fifteen year

old neighbor and friend that her grandfather had almost raped her, but asked him

not to tell anyone. A few days later, she told another neighbor, Georginda Pierce,

that Benally had almost raped her and repeated the same allegations to Pierce’s

mother, Lucinda Pierce. Lucinda Pierce called N.W.’s mother, Rowena. N.W.

and her sisters were then taken to Child Haven, a child welfare agency, and then

sent to live with Virginia S., Benally’s sister. N.W. admitted she did not reveal

all of the details of the encounter to the first doctor she spoke with because he

was a male and she did not feel comfortable talking to him. She also admitted she

omitted details when initially interviewed by defense investigators because other

children were present. 

Physical examinations of N.W. did not reveal evidence indicative of the

alleged assault. Georginda Pierce testified that, at the time N.W. related the story

to her, she did not see any bruising on N.W.’s neck. N.W. herself admitted she

did not sustain any cuts even though she had grabbed the knife blade with both

hands. A nurse at Child Haven who saw N.W. after N.W. reported the incident to
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Pierce did not indicate on an intake form that N.W. had any bruises or other

injuries. Thirteen days after the incident, the Indian Health Service doctor who

examined N.W. did not see any marks or bruising on N.W.’s body. A nurse who

examined N.W. about five weeks after the incident found no physical evidence of

the attack N.W. described but said that in most cases, there would be no evidence

of digital penetration of female genitalia. 

There was also testimony at trial about N.W.’s propensity for truthfulness: 

N.W.’s uncle and Benally’s son, Stanford Benally, testified N.W. had lived with

him for two years when she was about seven years old, five years before the

alleged assault, and was often untruthful. Virginia S., who had herself been raped

by Benally as a child, testified N.W. lived with her during the school year

following the alleged assault and said N.W. “sometimes” told lies. She agreed

that, if N.W. said something, one could not know if it was true. The nurse at

Child Haven who examined N.W. after the incident knew N.W. from N.W.’s

multiple stays at the agency and testified N.W. was not honest most of the time. 

Another Child Haven employee indicated N.W. “lies and steals” and was

dishonest. A social worker from the school N.W. attended during the school year

preceding the incident, however, testified that N.W. was “pretty honest” and

“[took] responsibility for her actions.” The defense also highlighted

inconsistencies in N.W.’s account of the incident, bringing out the differences
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between the story she told the doctor who initially examined her, the nurse who

examined her five weeks after the alleged assault, and N.W.’s testimony at trial.

Finally, evidence of four of Benally’s other sexual assault and child

molestation crimes was admitted under Federal Rules of Evidence 413 and 414. 

The admission of this evidence is the sole issue on appeal. Ruling on Benally’s

motion in limine to exclude the prior-crimes evidence, the court admitted

evidence of three of Benally’s prior offenses without an evidentiary hearing

because each had resulted in a conviction and the court determined their probative

value was not substantially outweighed by a danger of unfair prejudice, pursuant

to Rule 403. The court also ultimately admitted evidence of a fourth incident

involving the rape of Rowena, Benally’s daughter and N.W.’s mother, after

holding an evidentiary hearing and concluding a jury could find by a

preponderance of the evidence that the rape occurred and that the evidence should

not be excluded under Rule 403.

In brief, the four incidents testified to were as follows:

Betty R. testified that Benally’s sister was married to her brother. She

stated that when she was about twenty years old, about forty years earlier, Benally

came to her house when she was home alone babysitting, chased her into a sheep

corral about a half a mile from her home, pushed her and held her down, hit her in

the eye and on the cheek, and had sexual intercourse with her. Benally was
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charged with rape, but pleaded guilty to assault and battery. The rape charge was

dismissed.

Sarah J. testified Benally was once married to her older sister’s daughter. 

She indicated that, when she was thirteen, or about forty years prior to the current

trial, Benally came to her home, threw her on the floor, and had forcible sexual

intercourse with her. Benally pleaded guilty to rape.

Virginia, Benally’s sister, testified that, when she was thirteen or fourteen,

she lived at the sheep camp with her mother. After a drunken Benally and their

mother argued, Virginia left the family home and ran toward a nearby hill. 

Benally followed Virginia down the hill, stabbed her in the arm with a can

opener, and pushed her back up the hill and into his truck. He drove a mile or

two, put her in the back of the truck and had sexual intercourse with her. Her

mother came to retrieve her and took her to a hospital where she spoke with

police. Benally was ultimately convicted by a jury of raping his sister.

Rowena, N.W.’s mother and Benally’s daughter, testified that Benally

raped her when she was approximately ten or twelve years old, nineteen to

twenty-one years before the alleged incident involving N.W. Benally had picked

up Rowena and her brother, Stanford, from school on a Friday. He took them to

the sheep camp and hogan in which the alleged assault against N.W. occurred. 

Benally had been drinking and asked Rowena if she would have sex with him. 

Rowena tried to escape to her grandmother’s house next door by asking if she
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could go outside to the bathroom, but Benally accompanied her outside. When

Rowena and Benally re-entered the hogan, Benally instructed Rowena to lie on

his bed and had sexual intercourse with her. Rowena testified she told her

grandmother and stepmother about the incident, but that neither did anything to

help her. She indicated her brother, Stanford, had been present during the rape. 

Later in the trial, Stanford corroborated Rowena’s testimony. No criminal

charges were ever filed.

The district court twice gave cautionary jury instructions to mitigate the

prejudicial impact of the Rule 413/414 evidence. Before the testimony regarding

the prior incidents began, the court instructed the jury as follows: 

Members of the jury, I want to give you a cautionary

instruction now because we are about to hear some evidence with this

witness and two witnesses that will follow after her, some evidence

of the defendant’s commission of another offense or offenses of

sexual assault or child molestation.

In a criminal case in which the defendant is accused of an

offense of sexual assault or child molestation, evidence of the

defendant’s commission of another offense or offenses of sexual

assault or child molestation is admissible and may be considered for

its bearing on any matter to which it is relevant. However, evidence

of a prior offense on its own is not sufficient to prove the defendant

guilty of the crime charged in the indictment. Bear in mind as you

consider this evidence, at all times the government has the burden of

proving that the defendant committed each of the elements of the

offense charged in the indictment. I remind you that the defendant is

not on trial for any act, conduct or offense not charged in the

indictment.
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Before the jury began deliberating, the court again cautioned the jury

against improper use of the Rule 413/414 evidence, instructing the jury,

In a criminal case in which the defendant is accused of an

offense of sexual assault or child molestation, evidence of the

defendant’s commission of another offense or offenses of sexual

assault or child molestation is admissible and may be considered for

its bearing on any matter to which it is relevant.

However, evidence of a prior offense on its own is not

sufficient to prove the defendant guilty of the crime charged in the

Indictment. Bear in mind as you consider this evidence at all times,

the government has the burden of proving that the defendant

committed each of the elements of the offense charged in the

Indictment. I remind you that the defendant is not on trial for any act, conduct, or offense 

On appeal, Benally contends the district court erroneously concluded in its

Rule 403 analysis that the probative value of the Rule 413/414 evidence was not

substantially outweighed by the danger of unfair prejudice. Benally argues the

prior acts have little probative value because they are dissimilar from the alleged

assault involving N.W., happened too long ago, and were infrequent. Benally

also argues the prior incidents all occurred when he was an alcoholic and that he

no longer drinks. Finally, Benally claims the Rule 413/414 evidence was

unnecessary. Benally contends the admission of the evidence prejudiced the jury

and amounted to error that was not harmless.

III. Discussion

This court reviews a district court’s evidentiary rulings for an abuse of

discretion. United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir. 2005). A
“Child” is defined as a “person below the age of fourteen” for the purposes 1

of Rule 414. See Fed. R. Evid. 414(d). Evidence of certain sexual acts involving

a child may be admitted under either Rule 413 or Rule 414. See id. 413(c); id.

414(c). Because N.W. was twelve years old at the time of the alleged assault and

two of Benally’s prior victims were under the age of fourteen at the time Benally

raped them, two of Benally’s prior acts were eligible for admission under either

Rule 413 or Rule 414.

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district court’s ruling will not be disturbed “absent a distinct showing it was

based on a clearly erroneous finding of fact or an erroneous conclusion of law or

manifests a clear error of judgment.” Id. (quotation omitted). If this court

concludes the admission of evidence was erroneous, it must then consider whether

the error was harmless. Id.

Federal Rules of Evidence 413 and 414 address propensity evidence in the

context of sexual assault and child molestation. These rules provide an exception

to the general rule codified in Rule 404(a), which prohibits the admission of

evidence for the purpose of showing a defendant’s propensity to commit bad acts. 

See United States v. Guardia, 135 F.3d 1325, 1331 (10th Cir. 1998). Pursuant to

Rule 413(a), when “the defendant is accused of an offense of sexual assault,

evidence of the defendant’s commission of another offense or offenses of sexual

assault is admissible, and may be considered for its bearing on any matter to

which it is relevant.” Rule 414(a) contains identical language related to

accusations of child molestation. Consistent with congressional intent regarding 1

the admission of evidence tending to show the defendant’s propensity to commit

sexual assault or child molestation, “courts are to ‘liberally’ admit evidence of
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prior uncharged sex offenses.” United States v. Meacham, 115 F.3d 1488, 1492

(10th Cir. 1997).

Under Guardia and United States v. McHorse, 179 F.3d 889, 897–98 (10th

Cir. 1999), evidence of a prior sexual assault must meet three threshold

requirements before it may be considered for admission. The district court must

determine (1) the defendant is accused of a crime involving sexual assault or child

molestation, (2) the evidence proffered is evidence of the defendant’s commission

of another offense or offenses involving sexual assault or child molestation, and

(3) the evidence is relevant. McHorse, 179 F.3d at 898; Guardia, 135 F.3d at

1328. Relevant evidence is that which has “any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid.

401. Even where evidence is determined to be relevant, however, the

admissibility of Rule 413/414 evidence is subject to the Rule 403 balancing test,

which permits the exclusion of relevant evidence “‘if its probative value is

substantially outweighed by the danger of unfair prejudice.’” Guardia, 135 F.3d

at 1329 (quoting Fed. R. Evid. 403) (holding Rule 403 applies to determine the

admissibility of Rule 413 evidence); Meacham, 115 F.3d at 1495 (stating Rule

414 evidence is subject to Rule 403 balancing). 

In United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998), this court

explained that in cases where the government seeks to introduce Rule 413
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evidence, the district court must make a preliminary finding that a jury could

reasonably find that the “other act” occurred by a preponderance of the evidence. 

The district court should then consider: 

1) how clearly the prior act has been proved; 2) how probative the

evidence is of the material fact it is admitted to prove; 3) how

seriously disputed the material fact is; and 4) whether the

government can avail itself of any less prejudicial evidence. When

analyzing the probative dangers, a court considers: 1) how likely it is

such evidence will contribute to an improperly-based jury verdict;

2) the extent to which such evidence will distract the jury from the

central issues of the trial; and 3) how time consuming it will be to

prove the prior conduct.

Id. (quotation omitted). To further assist district courts in analyzing

probativeness under the second Enjady factor, the Guardia court enumerated

considerations which may influence the court’s analysis, including (1) the

similarity of the prior acts and the charged acts, (2) the time lapse between the

other acts and the charged acts, (3) the frequency of the prior acts, (4) the

occurrence of intervening events, and (5) the need for evidence beyond the

defendant’s and alleged victim’s testimony. Guardia, 135 F.3d at 1331. 

When the government seeks to introduce Rule 413 or 414 evidence, the

district court has an obligation “to fully evaluate the proffered . . . evidence and

make a clear record of the reasoning behind its findings” as to whether the

evidence survives the Rule 403 balancing test. Id.; see also United States v.

Castillo, 140 F.3d 874, 884 (10th Cir. 1998). The district court fulfilled that

obligation in this case. It carefully addressed the Enjady and Guardia factors and
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reached a permissible conclusion regarding the admissibility of the testimonial

evidence. 

The district court first determined Benally’s prior conduct was relevant and

the other Guardia threshold requirements had been met. The court then

methodically addressed the Enjady factors to determine whether the evidence was

excludable under Rule 403. As to the first three incidents, the court concluded

the fact of Benally’s rape and assault and battery convictions satisfied the first

Enjady factor for the incidents involving Virginia, Sarah, and Betty, respectively. 

In connection with the alleged incident involving Rowena, the court concluded an

evidentiary hearing was necessary to determine, as a preliminary matter, whether

a jury could find by a preponderance of the evidence that Benally raped Rowena.

Referring specifically to the rapes of Virginia, Sarah, and Betty, the court

next addressed the second Enjady factor, the probative value of the 413/414

evidence. Enjady, 134 F.3d at 1433. The court looked to the Guardia court’s

guidance in focusing its probativeness analysis. See Guardia, 135 F.3d at 1331. 

Most significant in the court’s determination that the evidence was highly

probative was the similarity between the current charge and the prior acts. The

court stated,

The incidents which the government seeks to introduce contain a

number of similarities to the incident alleged in this case. The

incidents involve young females, mostly young female family

members. The individuals involved in the prior incidents are similar

in age to each other and are similar in age to the individual involved
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in the charged offense. Additionally, many of the incidents involved 

either the use of force or a weapon, as did the charged incident. 

Thus, the similarity of these incidents shows that they are highly

probative.

As to the other considerations enumerated in Guardia regarding the probative

value of the testimony, the court acknowledged the significant time lapse between

the incidents involving Virginia, Sarah, and Betty, and the charged conduct

involving N.W. The court ultimately concluded, however, that the time lapse did

not in itself negate the probative value of testimony about the prior incidents and

stated the incidents were still “highly probative, despite their age.” In support of

its conclusion, the court cited the Tenth Circuit’s discussion of congressional

intent in Meacham, which indicated “there is no time limit beyond which prior

sex offenses by a defendant are inadmissible.” Meacham, 115 F.3d at 1492

(citing Rule 413’s Historical Notes which, in turn, cite to congressional history). 

The court also stated there had been no intervening events between the first

cluster of assaults, the alleged incident involving Rowena, and the charged

conduct involving N.W., to undermine the probative value of the evidence. In

completing its analysis of probativeness, the court turned to the government’s

need for the Rule 413/414 evidence and stated the government’s reliance on child

witnesses whose credibility would “surely [be] challenge[d]” necessitated the

introduction of the prior acts evidence.
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The court next returned to its Enjady analysis, stating the material fact at

issue, whether the alleged assault against N.W. occurred, was “hotly disputed.” It

also concluded that, because of questions about the credibility of the child

witnesses, there was no other evidence available to the defense that would be less

prejudicial. Addressing the “probative dangers” enumerated by the Enjady court,

the district court concluded the risk of an improper jury verdict would be lessened

by providing limiting instructions to the jury; it determined any risk of jury

distraction could be ameliorated by minimizing the quantity of evidence offered

as well as by the limiting jury instructions. Finally, the court stated it did not

believe the introduction of the evidence would be so time consuming as to

warrant its exclusion. Based on its evaluation of all the Enjady factors, the court

concluded the probative value of the evidence at issue in the incidents involving

Virginia, Sarah, and Betty was not substantially outweighed by the danger of

unfair prejudice to Benally.

In a separate proceeding, the court held an evidentiary hearing to determine

the admissibility of Rowena’s testimony regarding her alleged rape by Benally. 

After hearing from Rowena, the court determined a jury could find by a

preponderance of the evidence that the rape had occurred, satisfying Enjady’s
During the evidentiary hearing, the district court referred to its ruling 2

regarding the admissibility of the other three incidents and stated that analysis

also applied to the probative value and probative dangers of Rowena’s testimony.

Although the earlier ruling was explicitly limited only to the three incidents

involving Virginia, Sarah, and Betty, the court clearly considered in its order the

incident involving Rowena when discussing the probativeness of Benally’s prior

conduct and the lack of intervening circumstances. Because the four incidents are

all substantially similar to one another, the thorough analysis of the Enjady

factors and Guardia probativeness considerations undertaken in the district

court’s earlier ruling was sufficient to permit the court’s more abbreviated

discussion of Enjady at the evidentiary hearing. See United States v. Castillo,

140 F.3d 874, 884 (10th Cir. 1999).

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threshold requirement. The court then, once again, recited the Enjady factors and

stated Rowena’s testimony would be admitted.2

Considering the record as a whole, this court sees nothing to suggest the

district court abused its discretion when ruling on the admissibility of the

testimony of Benally’s four prior victims. Benally has not presented any

argument regarding the application of the Enjady factors or Guardia

considerations that persuades us otherwise. Contrary to Benally’s assertions, the

prior incidents contain significant similarities to N.W.’s alleged assault: each

involved a young woman whom Benally previously knew and two were close

relatives; all involved force of some type. It is inconsequential that the prior

incidents involved an actual rape, whereas Benally’s purported assault on N.W.

involved only genital touching. Especially given the circumstances of the assault

on N.W., where an actual rape could conceivably have occurred had N.W. not

attempted to fight Benally off and had the four other children not been present,
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this difference in the degree of severity of Benally’s conduct cannot serve as a

basis for this court to reverse the district court’s considered judgment. Benally’s

argument regarding the time lapse between the prior incidents and the charged

assault is similarly unpersuasive since Benally himself acknowledges this circuit

has observed no bright line rule regarding the timing of charged conduct relative

to prior acts. See Meacham, 115 F.3d at 1492; see also United States v. Drewry,

365 F.3d 957, 960 (10th Cir. 2004) (“Sufficient factual similarity can rehabilitate

evidence . . . that might otherwise be inadmissible due to staleness.”), vacated on

other grounds, 543 U.S. 1103 (2005), and remanded, 133 Fed. App’x 543 (10th

Cir. 2005).

As to Benally’s argument that all of the prior acts occurred while he was an

alcoholic, Benally is correct that a change in his drinking habits may generally

constitute an intervening circumstance. The change in Benally’s drinking habits

was, however, presented to the jury through the testimony of Rowena and

Stanford Benally. The jury was therefore able to consider this testimony, along

with all the other testimony, when weighing the importance of the Rule 413/414

evidence. As a consequence, the change in Benally’s drinking habits is not an

adequate intervening circumstance requiring the exclusion of the prior acts

testimony. 

Finally, Benally is incorrect in his assertion that the only reason to

introduce this evidence was to bias the jury. Evidence of other similar crimes
At oral argument, there was some suggestion that the district court 3

admitted the Rule 413/414 evidence solely because, without it, the government’s

case was exceptionally weak. We agree that this alone would have been an

impermissible justification for admission and would have amounted to an abuse of

the district court’s discretion. This court’s thorough review of the record,

however, satisfies us that the district court’s decision to admit the evidence was

grounded in a proper consideration of the Enjady and Guardia factors and not in

an improper consideration of the strength or weakness of the government’s case.

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involving sexual assault and child molestation was determined by Congress to be

probative of a defendant’s propensity to commit such crimes. See Meacham, 115

F.3d at 1492. The purpose for introducing evidence of Benally’s prior sexual

assaults was to provide the jury with just such probative propensity evidence.

3

Additionally, any jury bias that may have resulted from the district court’s

decision to admit this evidence would have been mitigated by the court’s two

separate instructions to the jury regarding the jury’s permissible and

impermissible uses of the evidence.

IV. Conclusion

The district court’s decision to admit evidence of Benally’s four prior

sexual assaults was not an abuse of the district court’s discretion. The evidentiary

ruling of the district court was proper and Benally’s conviction is AFFIRMED.