United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 97-1918

 

United States of America, *

*

 Appellee, *

* Appeal from the United

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 sexual

contact with a minor, alleging that the evidence produced

at trial was insufficient and that the victim recanted

her testimony. We affirm.
2

I.

On May 8, 1996, Kermit Miner was indicted on two

counts of abusive sexual contact and one count of sexual

abuse of a minor. The indictment alleged that on two

separate occasions, Miner sexually abused his

stepdaughter S.J. The first alleged incident occurred on

November 8, 1995, and gave rise to Counts I and II,

abusive sexual contact and sexual abuse of a minor,

respectively. The second alleged incident occurred on

December 7, 1995, and gave rise to Count III, abusive

sexual contact. Miner’s trial commenced on October 28,

1996, after which a jury acquitted him of Counts I and II

and convicted 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 the time of trial, Kermit Miner was thirty-two

years old and had a sixth-grade education. He lived with

his wife, Audrey Miner, and their eleven natural and

foster children in White Horse on the Cheyenne River

Indian Reservation in South Dakota. Additionally, as

many as five other adults lived on the premises. The

Miner household included two houses, the main house and

a small, two-room auxiliary house (log house) located

behind the main house. At most, the two-level main house

measured 36 feet by 15 feet giving it a total of 1,080

square feet. Similarly, the log house measured 23 feet

by 15 feet giving it a total of 345 square feet. In

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

adults living in the Miner household, went to Standing

Rock Sioux Tribal Social Services Department and reported

her suspicions that Kermit Miner was abusing the children

in his home. In response to this report, Aldina Moran,

a child protection worker for the state of South Dakota,

went to the Timber Lake School on December 21, 1995, and

interviewed several of the children from the Miner

household. Kermit Miner’s stepdaughter, S.J., who was

fourteen at the time, told Ms. Moran that her stepfather

had sexually abused
4

her on two occasions. S.J. was subsequently removed from

the household and her mother, Audrey Miner, was allowed

supervised visits.

At trial, S.J. testified that both instances of

sexual abuse occurred when Audrey Miner was absent. S.J.

testified that the first incident happened on November 8,

1995, following 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 the log house.

In the bedroom of the log house, Kermit Miner pulled down

S.J.’s pants; started touching her, her breasts and

vaginal area; and tried to kiss her vagina. She

testified that during this time she was crying and she

tried to push him away. She testified that he gave her

five dollars.

S.J. stated that the second incident occurred on

December 7, 1995, when illness kept her from school. On

this occasion, again in the log house, Kermit Miner

pushed her shirt and bra up around her neck, rubbed her

breasts, and told S.J. that her breasts were soft. S.J.

told him to stop touching her and that it was her body,

but Miner continued until S.J.’s cousin and two younger

brothers came back from school. E.F.H., S.J.’s nineyear-old cousin, testified that he saw Kermit Miner and

S.J. lying on a bed, Miner was touching S.J.’s side, and

Miner was “doing nasty” to S.J. (Tr. at 145.) 

On appeal, Kermit Miner challenges the sufficiency of

the evidence supporting his conviction on two bases.

First, Miner points out that S.J. twice recanted her

testimony and alleges that S.J. fabricated her
5

allegations of sexual abuse. Second, Miner contends that

the jury reached a compromise verdict in that there are

no real factual differences between the conduct for which

he was acquitted and that for which he was convicted.

Because substantial evidence supports his conviction, we

affirm.
6

II.

In reviewing the sufficiency of the evidence for a

criminal conviction, we view the evidence in the light

most favorable to the government and accept as

established all reasonable inferences supporting the

verdict. United States v. Black Cloud, 101 F.3d 1258,

1263 (8th Cir. 1996); see also Glasser v. United States,

315 U.S. 60, 80 (1942). “The evidence need not exclude

every reasonable hypothesis of innocence, but simply be

sufficient to convince the jury beyond a reasonable 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 as

inherently probative as direct evidence, Holland v.

United States, 348 U.S. 121, 140 (1954), the same

standard applies to verdicts based entirely, or in part,

on circumstantial evidence. United States v. Carlson,

547 F.2d 1346, 1360 (8th Cir. 1976).

At trial, the jury had ample evidence from which it

could have concluded Miner’s guilt. S.J. provided

extensive and detailed evidence of Kermit Miner’s sexual

abuse. Diane Chasing Hawk, rather than S.J., initially

raised the specter of sexual abuse. Consequently, S.J.

had no warning that Aldina Moran would investigate

activities in the Miner household. Ms. Moran conducted

an extensive interview at which S.J. provided a detailed

description of two incidents of sexual abuse, including

dates, times, and places. During the interview, S.J. was

emotional and cried. Finally, details surrounding the

second incident were corroborated by E.F.H., S.J.’s nineyear-old cousin. 
7

Despite S.J.’s recantations which make this a closer

case, we conclude that substantial evidence supports

Miner’s conviction. S.J.’s first recantation occurred on

June 29, 1996 in a private meeting between S.J. and

Kermit Miner’s attorney. At the meeting S.J. signed a

note written by the attorney disavowing her allegations

of sexual abuse which was later admitted as Exhibit 7 at

trial. Three weeks after signing the note, S.J.

reaffirmed her recantation. At trial, however, S.J.

changed her position and
8

renewed her allegations that Kermit Miner sexually abused

her. The jury was aware of the fact that S.J. initially

reported sexual abuse; that she recanted these charges;

that S.J. reaffirmed her recantation; and that she

testified at trial consistent with her original

allegations. Having weighed S.J.’s credibility in light

of her changed position as well as the other evidence

produced at trial, the jury convicted Kermit Miner.

Viewing the evidence in the light most favorable to the

government and accepting all reasonable inferences

supporting the verdict, we find nothing in the first

recantation that warrants reversal.

Because we affirm Miner’s conviction in light of

S.J.’s first recantation, the second recantation will

warrant reversal only if it raises a strong enough

inference of innocence to warrant a new trial on the

ground of newly discovered evidence under Rule 33 of the

Federal Rules of Criminal Procedure. Courts look upon

recantations with suspicion. United States v. Provost,

969 F.2d 617, 619-20 (8th Cir. 1992) (citation omitted).

“[S]kepticism about recantations is especially applicable

in cases of child sexual abuse where recantation is a

recurring phenomenon” such as “when family members are

involved and the child has feelings of guilt or the

family members seek to influence the child to change her

story.” Id. at 621 (citations omitted). At trial,

expert testimony revealed that recantations are very

common in child sexual abuse. 

The second recantation occurred on April 10, 1997.

S.J. signed an affidavit to the effect that her

allegations of sexual abuse were untrue and that she made
9

them up because she hated Kermit Miner. The affidavit

alleged that Diane Chasing Hawk offered S.J. money to

fabricate charges of sexual abuse and that social

services and the Assistant U.S. Attorney Mikal Hanson

manipulated S.J. into providing false testimony. 

A careful review of the record suggests that Audrey

Miner pressured S.J. before trial, and this pressure may

have had an effect on S.J.’s recantations. For example,

in her first supervised visit with S.J., Audrey expressed

disbelief in S.J.’s description of the alleged sexual

abuse. In another supervised visit on January 19, 1996,

Audrey told
10

a social worker that she did not believe S.J. During

this meeting, S.J. became very upset and cried. At

trial, Deanne Ducheneaux, the Assistant Coordinator for

Sacred Heart Adolescent Program where S.J. was eventually

placed, testified that Audrey frequently put pressure on

S.J. before trial. The week before trial, Audrey called

S.J. at Sacred Heart Adolescent Center and told S.J. that

she had a heart attack and was minutes away from dying.

Audrey told S.J. that her allegations of sexual abuse and

the upcoming trial had put a lot of stress upon Audrey.

During the same phone call, S.J.’s little sister got on

the 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, Audrey

Miner took S.J. from her social services placement with

relatives in Little Eagle, South Dakota, back to White

Horse, South Dakota. The next day, Audrey Miner took

S.J. to Fort Pierre to meet with Kermit Miner’s attorney

at which point S.J. signed her first recantation. Under

these circumstances, we conclude that S.J.’s second

recantation does not raise a sufficiently strong

inference of innocence to warrant reversal. 

Miner also contends that the jury reached a

compromise verdict in that there are no real factual

differences between the alleged November 8, 1995 incident

which gave rise to Counts I and II, on which he was

acquitted, and the alleged December 8, 1995 incident

giving rise to Count III, on which he was convicted.

Miner argues that the jury did not believe that he was

guilty of Counts I and II and, because there was less

evidence to support Count III, his conviction should not

stand. We disagree. Counts I and II were not supported
11

by eyewitness testimony at trial, whereas Count III was

supported by E.F.H.’s eyewitness testimony. 

Incidentally, as we noted above, as many as eighteen

people inhabited the Miner household, including eleven

natural and foster children of Audrey and Kermit Miner.

This court cannot understand why the Department of the

Interior, the Tribe, and other agencies permitted foster

children to be placed in this already over-crowded home.
See United States v. Wright, 119 F.3d 630 (8th Cir. 1997) (affirmed) (familial); 1

United States v. Cournoyer, 118 F.3d 1279 (8th Cir. 1997) (affirmed) (non-familial);

United States v. Rouse, 111 F.3d 561 (8th Cir. 1997) (affirmed) (familial); United

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.

1995) (affirmed) (familial); United States v. Ponca, No. 94-3981, 1995 WL 299168

(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

States v. Saknikent, 30 F.3d 1012 (8th Cir. 1994) (affirmed) (non-familial); United

States v. Whitted, 11 F.3d 782 (8th Cir. 1993) (reversed and remanded) (familial);

United States v. Has No Horse, 11 F.3d 104 (8th Cir. 1993) (reversed and remanded)

(non-familial); United States v. Knife, 9 F.3d 705 (8th Cir. 1993) (affirmed) (familial);

United States v. Martinez, 3 F.3d 1191 (8th Cir. 1993) (affirmed) (non-familial); United

States v. Shoulders, No. 92-3591, 1993 WL 326364 (8th Cir. Aug. 27 1993) (per

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) (facts

unclear 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 unclear whether familial);

United States v. Crane, 965 F.2d 586 (8th Cir. 1992) (affirmed) (familial); United

States 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 for

resentencing) (non-familial); United States v. Plenty Arrows, 946 F.2d 62 (8th Cir.

1991) (reversed and remanded) (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 for

the sexual abuse of children or young adults, involving

Native Americans, in the United States District Court for

the District of South Dakota have been appealed to this

court. Of that number, at least 1
above); United States v. Two Bulls, 940 F.2d 380 (8th Cir. 1991) (per curiam)

(affirmed) (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

affirmed, 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

(8th Cir. 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, 876 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) (familial); 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

twenty-five represented instances in which children or

young adults were abused by a father or another family

member. Of those, we reversed the convictions in seven

cases. Unfortunately, in examining these cases, the

number of appeals in the most recent five years or so has

risen approximately fifteen percent, indicating that

little or no progress has been made by the United States

Department of Interior, the Tribe, or any of the federal

or state agencies that are involved in reducing the

incidents of sexual abuse on poverty-stricken Indian

reservations. This fact certainly suggests that all

interested agencies should consider alternative programs

that will reduce the prevalence of this crime on South

Dakota Indian reservations.

III.
14

Because substantial evidence supports Kermit Miner’s

conviction, we affirm.
15

BRIGHT, Circuit Judge, concurring separately.

I commend my distinguished colleague, Judge Heaney,

for his pertinent remarks calling attention to what I

believe may be the root cause of child abuse crimes on the

South Dakota Indian Reservation; that is, the degraded

living conditions of families on the Indian reservations.

The government has or will spend well over $50,000 in the

criminal prosecution and incarceration of Kermit Miner.

Although he will be removed from the family for about two

years, I question whether the family situation will be

bettered by his absence or improved on his return from

prison.

Child abuse on the reservation or anywhere is a

serious matter. I suggest in particular on the

reservation, improvement in housing conditions and

intensive education of parents and children about the

problem might reduce the incidence of the sort of abuse

that occurred here. All federal agencies interested in

the welfare of Native Americans in South Dakota need to

focus on rehabilitation, better housing and education

opportunities to alleviate the problem of child abuse on

the reservation.

The interest and action of federal prosecutors in this

regard could well serve as a catalyst for improvement of

living conditions at the Cheyenne River Indian Reservation

and other Indian reservations in South Dakota and,

thereby, reduce the incidence of child abuse.
16

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.