Duane Dewey Anderson v. Ind. School Dist. 97

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1832
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of South Dakota.
*
Ronald Neiss, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 19, 2003
Filed: December 22, 2003
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Before MURPHY, LAY, and FAGG, Circuit Judges.
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PER CURIAM.
The Government charged Ronald Neiss, a resident of the Rosebud Sioux
Reservation, with sexually abusing his girlfriend’s six-year-old daughter on the
reservation in violation of 18 U.S.C. §§ 1153, 2244(a)(1), 2244(c), 2246(3). During
a routine Department of Social Services (DSS) interview, the girl had indicated to a
caseworker that Neiss had touched her in her vaginal area. The interview was
videotaped. Neiss later confessed to authorities that he rubbed the girl’s vaginal area
through her clothing in her bedroom, but that he had been very intoxicated and
believed the six-year-old was her adult mother. The girl was removed from her
mother’s home, which she shared with Neiss, and sent to live with her grandmother.

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The week before trial, the girl recanted her earlier statement and told the prosecutor
Neiss had not touched her. She also stated her mother told her to say the touching
“really didn’t happen.” At trial, the girl testified she did not remember anything about
the DSS interview. The Government introduced the interview on videotape during the
caseworker’s testimony. In light of the girl’s recantation, the defense argued the
touching never occurred, rather than that the touching was accidental. The jury
convicted Neiss.
Neiss appeals challenging the sufficiency of the evidence. Viewing the
evidence in the light most favorable to the verdict and giving the verdict the benefit
of all reasonable inferences, a reasonable jury could have found Neiss knowingly
engaged in sexual contact with the girl. See United States v. Voice, 200 F.3d 584,
585 (8 th Cir. 2000) (per curiam); United States v. Crow, 148 F.3d 1048, 1050 (8 th Cir.
1998); United States v. Plenty Arrows, 946 F.2d 62, 67 (8 th Cir. 1991). The jury
could reasonably find from the girl’s videotaped statement and the DSS caseworker’s
testimony that Neiss touched the girl in her vaginal area. The girl’s initial account of
the abuse was very similar to Neiss’s account of the events, and her recantation was
significantly undercut by Neiss’s own pretrial admission that the touching occurred.
Neiss’s theory at trial that the illegal contact never occurred directly contradicted his
earlier statement that the contact was accidental. The jury could also reasonably
reject Neiss’s explanation of accidental contact and find the illegal touching was done
knowingly. Neiss claimed the touching was accidental because of his intoxication,
yet Neiss drove home thirty miles after drinking and knew the layout of the residence
because he lived there. In addition, the furniture in the girl’s room included a
sibling’s crib and was differently arranged than the furniture in her mother’s
bedroom, and the six-year-old girl was obviously smaller than her mother.
Neiss also contends the district court abused its discretion in denying his
motion for a new trial based on newly discovered evidence–testimony of the girl’s
psychologist that the girl had denied any wrongdoing on Neiss’s part. The district

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court properly denied the motion because the testimony would have been merely
cumulative. See United States v. Fellers, 285 F.3d 721, 725 (8 th Cir. 2002) (to
warrant new trial, newly discovered evidence may not be merely cumulative). During
the trial, the girl’s guardian ad litem and grandmother testified the girl had told them
Neiss had not touched her, and the girl herself testified Neiss did nothing improper
to her.
We thus affirm the district court.
LAY, Circuit Judge, concurs only in the result.
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