United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 97-1918

United States of America, *
* Appellee, *
* Appeal from the Unite d States v. * District Court for the
* District of South Dakota. Kermit Miner, *
* Appellant. *

Submitted: November 21, 1997
Filed : December 23, 1997

Before LOKEN, HEANEY, and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

Kermit Miner appeals his conviction of abusive sexua l contact with a minor, alleging that the evide nce produced at t rial was insufficient and that the victim recante d her testimony. We affirm.2 I.

On May 8, 1996, Kermit Miner was indicted on tw o counts of abusive sexual contact and one count of sexual abuse of a minor. The indictment alleged that on tw o separate occasions, Miner sexually abused hi s stepdaughter S.J. The first alleged incident occurred on Novem ber 8, 1995, and gave rise to Counts I and II , abusi ve sexual contact and sexual abuse of a minor , resp ectively. The second alleged incident occurred o n Decem ber 7, 1995, and gave rise to Count III, abusiv e sexual contact. Miner’s trial commenced on October 28 , 1996, after which a jury acquitted him of Cou nts I and II and convic ted him of Count III. On March 21, 1997, Miner
was sentenced to twenty-four months of incarceration, a special assessment, and supervised release. On March 31, 1997, Miner filed notice of appeal to this court.

At th e time of trial, Kermit Miner was thirty-tw o years old and had a sixth-grade education. H e lived with hi s wife, Audrey Miner, and their eleven natural an d fo ster children in White Horse on the Cheyenne Rive r Indi an Reservation in South Dakota. Additionally, a s many as five other adults lived on the premises. Th e Miner household included two houses, the main house an d
a sm all, two-room auxiliary house (log house) locate d behind the main house. At most, the two-leve l main house
measu red 36 feet by 15 feet giving it a total of 1,08 0 square feet. Similarly, the log house measured 23 fee t by 15 feet giving it a total of 345 square feet. I n total, as many as eighteen residents shared 1,425 square feet of living space.3

On December 11, 1995 , Diane Chasing Hawk, one of the adul ts living in the Miner household, went to Standin g Rock Sioux Tribal Social Services Department and reported her suspicions that Kermit Miner was abusing the children in hi s home. In response to this report, Aldina Moran , a child pr otection worker for the state of South Dakota, went to th e Timber Lake School on December 21, 1995, and inte rviewed several of the children from the Mine r household. Kermit Miner’s stepdaughter, S.J., who wa s fourteen a t the time, told Ms. Moran that her stepfather had sexually abused4

her on two occasions. S.J. was subsequently removed from the household and her mother, Audrey Miner, was allowe d supervised visits.

At trial, S.J. testified that both instances o f sexual abuse occurred when Audrey Miner was a bsent. S.J. testified that the first incident happened onNovember 8, 1995, foll owing a trip to Timber Lake where Kermit Miner played volleyball. After returning home late that night, Kermit Miner made her take a VCR and TV to th e log house. In the bedroom of the log house, Kermit Miner pulled down S.J. ’s pants; started touching her, her breasts an d vaginal area; and tried to kiss her vagina. Sh e testif ied that during this time she was crying and sh e tri ed to push him away. She testified that he gave he r five dollars.

S.J. stated that the second incident occurred o n December 7 , 1995, when illness kept her from school. On this occasion, again in the log house, Kermit Mine r pushe d her shirt and bra up around her neck, rubbed he r breasts, a nd told S.J. that her breasts were soft. S.J. tol d him to stop touching her and that it was her body , but Miner continued until S.J.’s cousin and two younge r brother s came back from school. E.F.H., S.J.’s nine

year-old cousin, testified that he saw Kermit Miner an d S.J. lying on a bed, Miner was touching S.J.’s side, and Miner was “doing nasty” to S.J. (Tr. at 145.)

Onappeal, Kermit Miner challenges the sufficiency o f the evidence supporting his conviction on two bases

. Fi rst, Miner points out that S.J. twice recanted he r test imonyand alleges that S.J. fabricated he r5

allegations of sexual abuse. Second, Miner c ontends that the jur y reached a compromise verdict in that there ar e no real factual differences between the condu ct for which he wa s acquitted and that for which he was convicted

. Because substantial evidence supports his co nviction, we affirm.6 II.

In reviewing the sufficiency of the evidence for a crim inal conviction, we view the evidence in the ligh t most favorable to the government and accept a s established all reasonable inferences supporting th e verdic t. United States v. Black Cloud , 101 F.3d 1258 , 1263 (8th Cir. 1996); see also Glasser v. Un ited States , 315 U .S. 60, 80 (1942). “The evidence need not exclud e every reas onable hypothesis of innocence, but simply be sufficient to convince the jury beyond a reas onable doubt that the defendant is guilty.” United States v. McGuire , 45 F .3d 1177, 1186 (8th Cir. 1995) (citation omitted)

. Furthermore, because circumstantial evidence is a s inh erentlyprobative as direct evidence, Holland v

. Uni ted States , 348 U.S. 121, 140 (1954), the sam e standard a pplies to verdicts based entirely, or in part,
on c ircumstantial evidence. United States v. Carlson , 547 F.2d 1346, 1360 (8th Cir. 1976).

At tri al, the jury had ample evidence from which i t could have concluded Miner’s guilt. S.J. provide d extensive and detailed evidence of Kermit Miner’s sexual abuse. Diane Chasing Hawk, rather than S.J., initiall y raised the specter of sexual abuse. Consequently, S.J

. had no warning that Aldina Moran would investigat e activities in the Miner household. Ms. Moran conducte d an extensi ve interview at which S.J. provided a detailed desc ription of two incidents of sexual abuse, includin g dates, times, and places. During the intervi ew, S.J. was emot ional and cried. Finally, details surrounding th e second incident were corroborated by E.F.H., S.J.’s nineyear-old cousin.7

Despite S.J.’s recan tations which make this a closer
case , we conclude that substantial evidence support s Miner’s conviction. S.J.’s first recantationoccurred on Jun e 29, 1996 in a private meeting between S.J. an d Kermit Miner’s attorney. At the meeting S.J. signed a note written by the attorney disavowing her allegation s of sexual abuse which was later admitted as Exhibit 7 at trial. Three weeks after signing the note, S.J

. reaf firmed her recantation. At trial, however, S.J

. changed her position and8

renewed her allegations that Kermit Miner sex ually abused her. The jury was aware of the fact that S.J. initially repo rted sexual abuse; that she recanted these charges ; that S.J. reaffirmed her recantation; and that sh e testi fied at trial consistent with her origina l allegation s. Having weighed S.J.’s credibility in light of he r changed position as well as the other evidenc e prod uced at trial, the jury convicted Kermit Miner

. Viewing the evidence in the light most favorable to th e government and accepting all reasonable inference s su pporting the verdict, we find nothing in the firs t recantation that warrants reversal.

Because we affirm Miner’s conviction in light o f S.J.’ s first recantation, the second recantation wil l warrant reversal only if it raises a strong enoug h infe rence of innocence to warrant a new trial on th e ground of newly discovered evidence under Ru le 33 of the Fede ral Rules of Criminal Procedure. Courts look upo n reca ntations with suspicion. United States v. Provost , 969 F.2d 6 17, 619-20 (8th Cir. 1992) (citation omitted). “[S]kepticism about recantations is especiall y applicable in ca ses of child sexual abuse where recantation is a recu rring phenomenon” such as “when family members ar e inv olved and the child has feelings of guilt or th e family members seek to influence the child to change her sto ry.” Id. at 621 (citations omitted). At trial , expe rt testimony revealed that recantations are ver y common in child sexual abuse.

The second recantation occurred on April 10, 1997

. S.J. signed an affidavit to the effect that he r allegations of sexual abuse were untrue and t hat she made9

themu p because she hated Kermit Miner. The affidavi t alleged that Diane Chasing Hawk offered S.J. money t o fabr icate charges of sexual abuse and that socia l
serv ices and the Assistant U.S. Attorney Mikal Hanso n manipulated S.J. into providing false testimony.

A caref ul review of the record suggests that Audre y Miner pres sured S.J. before trial, and this pressure may have had a n effect on S.J.’s recantations. For example, in her first supervised visit with S.J., Audr ey expressed disb elief in S.J.’s description of the alleged sexua l abuse. Inanother supervised visit on January 19, 1996, Audrey told10

a soc ial worker that she did not believe S.J. Durin g thi s meeting, S.J. became very upset and cried. A t trial, Deanne Ducheneaux, the Assistant Coordinator fo r Sacred Heart Adolescent Program where S.J. wa s eventually placed, te stified that Audrey frequently put pressure on S.J. befor e trial. The week before trial, Audrey called S.J. at Sacred Heart Adolescent Center and to ld S.J. that she h ad a heart attack and was minutes away from dying

. Audrey told S.J. that her allegations of sexu al abuse and the u pcoming trial had put a lot of stress upon Audrey

. During the same phone call, S.J.’s little sister got o n th e phone and said “don’t say nothing bad about my daddy.” (Tr. at 394.) Finally, on June 28, 1996 , apparently in violation of a tribal court order, Audre y Miner took S.J. from her social services placement wit h rela tives in Little Eagle, South Dakota, back to Whit e Horse , South Dakota. The next day, Audrey Miner too k S.J. to Fo rt Pierre to meet with Kermit Miner’s attorney at which p oint S.J. signed her first recantation. Under the se circumstances, we conclude that S.J.’s secon d recantation does not raise a sufficiently stron g inference of innocence to warrant reversal.

Miner also contends that the jury reached a co mpromise verdict in that there are no real factua l differences between the alleged November 8, 1 995 incident which gave rise to Counts I and II, on which he wa s acqu itted, and the alleged December 8, 1995 inciden t givi ng rise to Count III, on which he was convicted

. Miner argues that the jury did not believe that he wa s guilt yof Counts I and II and, because there was les s evidence t o support Count III, his conviction should not stand. We disagree. Counts I and II were not supported11

by eyewitness testimony at trial, whereas Count III wa s supported by E.F.H.’s eyewitness testimony.
Incidentally, as we noted above, as many as eighteen people inhabited the Miner household, including eleve n natural and foster children of Audrey and Kermit Miner

. This court cannot understand why the Department of th e Interior, the Tribe, and other agencies permitted foster children t o be placed in this already over-crowded home.See United States v. Wright , 119 F.3d 630 (8t h Cir. 1997) (affirmed) (familial); 1 UnitedStates v. Cournoyer , 118 F.3d 1279 (8th Cir. 1997) (affirmed) (non-familial); Unit edStates v. Rouse , 111 F.3d 561 (8th Cir. 1997) (affirmed) (familial); Unite d States v. Goodlow , 105 F.3d 1203 (8th Cir. 1997) (affirmed) (familial); United States v. LeCompte , 99 F.3d

274 (8th Cir. 1996) (reversed and remanded) (familial); United States v. Hale , No. 95-3113, 1996 WL 39628 (8th Cir. Feb. 2, 1996) (per curiam ) (affirmed) (facts unclear whether familial); United States v. NB , 59 F.3d 771 (8th Cir. 19 95) (affirmed) (familial); United States v. Ponca , No. 94-3981, 1995 WL 29916 8 (8th Cir. May 18, 1995) (per curiam) (affirmed) (familial); United States v. Young , No. 94-2077, 1994 WL 577466 (8th Cir. Oct. 21 1994) (per curiam) (affirmed) (familial); United States v. Farmer , 32 F. 3d 369 (8th Cir. 1994) (affirmed) (non-familial); United Sta tes v. Saknikent , 30 F.3d 1012 (8th Cir. 1994) (affirmed) (non-familial); Unite d States v. Whitted , 11 F.3d 782 (8th Cir. 1993) (reversed and remanded) (familial) ; United States v. Ha s No Horse , 11 F.3d 104 (8th Cir. 1993) (reversed and remanded) (non-familial); United States v. Kni fe , 9 F.3d 705 (8th Cir. 1993) (affirmed) (familial); United States v. Martinez , 3 F.3d 1191 (8th Cir. 1993) (affirmed) (non-fam ilial); United States v. Shoulders , No. 92-3591, 1993 WL 326364 (8th Cir. Aug. 27 1993) (pe r curiam) (affirmed) (familial); United States v. Bear Stops , 997 F.2d 451 (8th Cir. 1993) (affirmed in part, reversed in part and remanded) (familial); United States v. Eagleman , No. 92-2882, 1993 WL 41382 (8th Cir. Feb. 22, 1993) (per curiam) (affirmed ) (familial); United States v. Drapeau , 978 F.2d 1072 (8th Cir. 1992) (affirmed) (fact s un clear whether familial); United States v. Claymore , 978 F.2d 421 (8th Cir. 1992 ) (affirmed) (non-familial); United States v. Bad Yellow Hair , No. 91-3704, 1992 WL 184103 (8th Cir. Aug. 5, 1992) (per curiam) (affirmed) (facts unc lear whether familial); United Stat es v. Crane , 965 F.2d 586 (8th Cir. 1992) (affirmed) (familial); Unite d S tates v. Balfany , 965 F.2d 575 (8th Cir. 1992) (familial); United States v. Fawbush , 946 F .2d 584 (8th Cir. 1991) (conviction affirmed, but case remanded fo r re sentencing) (non-familial); United States v. Plenty Arrows , 946 F.2d 62 (8th Cir

. 1991) (reversed and reman ded) (familial); United States v. Drapeau , 943 F.2d 27 (8th Cir. 1991) (affirmed) (non-familial, different case than one with same case name
12 Over the last ten years at least forty convictions fo r the sexual abuse of children or young adults, involvin g Native Americans, in the Unite d States District Court for the District of South Dakota have been appealed to thi s court. Of that number, at least

1above); Unit ed States v. Two Bulls , 940 F.2d 380 (8th Cir. 1991) (per curiam )

(aff irmed) (non-familial); Arcoren v. United States , 929 F.2d 1235 (8th Cir. 1991 ) (affirmed) (familial); United States v. Clown , 925 F.2d 270 (8th Cir. 1991) (conviction aff irmed, but case remanded for resentencing) (familial); United States v. Two Bulls , 918 F.2d 56 (8th Cir. 1990) (vacated and remanded) (facts unclear whether familial ; different case

than one with same case name above); United States v. Eagle Thunder , 893 F.2d 950 (8th Cir. 1990) (affirmed) (non-familial); United v. Duran , 886 F.2d 167 (8thCir. 1989) (affirmed) (familial); United States v. Spotted War Bonnet , 882 F.2d 1360 (8th Cir. 1989), vacated and remanded , 497 U.S. 1021 (1990) ( Mem. ), 933 F.2d 1471, aff’g , (8th Cir. 1991) (familial); United States v. Iron Moccasin , 878 F.2d 226 (8th Cir. 1989) (affirmed) (familial); United States v. Demarrias , 87 6 F.2d 674 (8th Cir. 1989) (affirmed) (familial); United States v. Provost , 875 F.2d 172 (8th Cir. 1989 ) (affirmed) (familial); United States v. Red Feather , 865 F.2d 169 (8th Cir. 1989) (per curiam) (affirmed) (famili al); United States v. St. John , 851 F.2d 1096 (8th Cir. 1988) (affirmed ) (familial); United States v. St. Pierre , 812 F.2d 417 (8th Cir. 1987 ) (affirmed) (familial).
13 twe nty-five represented instances in which children o r you ng adults were abused by a father or another famil y memb er. Of those, we reversed the convictions in seve n cases . Unfortunately, in examining these cases, th e number of appeals in the most recent five years or so has risen approximately fifteen percent, indicating tha t little or no progress has been made by the United States Department of Interior, the Tribe, or any of the federal
or s tate agencies that are involved in reducing th e incidents of sexual abuse on poverty-stricken India n reser vations. This fact certainly suggests that al l interested agencies should consider alternative program s tha t will reduce the prevalence of this crime on Sout h Dakota Indian reservations.

III.14

Becau se substantial evidence supports Kermit Miner’s conviction, we affirm.15

BRIGHT, Circuit Judge, concurring separately.

I commend my distinguished colleague, Judge Heaney , for hi s pertinent remarks calling attention to what I believe may be the root cause of child abuse crimes on th e South Dakota Indian Reservation; that is, the degrade d living conditions of families on the Indian reservations. The government has or will spe nd well over $50,000 in the crim inal prosecution and incarceration of Kermit Miner

. Although he will be removed fr om the family for about two yea rs, I question whether the family situation will b e bet tered by his absence or improved on his return fro m prison.

Ch ild abuse on the reservation or anywhere is a serious matter. I suggest in particular on th e reservation, improvement in housing conditions an d inten sive education of parents and children about th e prob lemmight reduce the incidence of the sort of abus e that occurred here. All federal agencies interested i n the welfare of Native Americans in South Dakota need t o fo cus on rehabilitation, better housing and educatio n opportunities to alleviate the problem of child abuse on the reservation.

The interest and action of federal prosecutors in thi s regard could well serve as a catalyst for improvement of living conditions at the Cheyenne River Indian Reservatio n and o ther Indian reservations in South Dakota and , thereby, reduce the incidence of child abuse.16

A true copy.

Attest:

CLER K, U. S. COURT OF APPEALS, EIGHT H CIRCUIT.