Submitted February 12, 2015.
Appeal from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellant: Deidre Yvonne Aanstad, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN; Lisa D. Kirkpatrick, Assistant U.S. Attorney, U.S. Attorney's Office, Saint Paul, MN.
James White, Jr., Defendant - Appellee, Pro se, Red Lake, MN.
For James White, Jr., Defendant - Appellee: Peter Benson Wold III, Minneapolis, MN.
Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges. KELLY, Circuit Judge, dissenting.
GRUENDER, Circuit Judge.
A jury found James White, Jr., guilty of assault resulting in serious bodily injury in Indian country in connection with injuries suffered by his ten-month old son, A.W. See 18 U.S.C. § § 113(a)(6), 1151, 1153(a). The district court then granted White's motion for judgment of acquittal, concluding that no reasonable juror could find beyond a reasonable doubt that White intentionally assaulted A.W. during a tenminute period when the two were alone. The Government appeals. We reverse and remand with instructions to reinstate the jury's guilty verdict. See United States v. Boesen, 491 F.3d 852, 853 (8th Cir. 2007).
On August 30, 2013, ten-month old A.W. lived with his mother, Cheryl Maxwell; his father, James White, Jr.; his brother, X.W.; and his three half-siblings, L.S., J.S., and J.L.S. At A.W.'s five-month check-up with his pediatrician, A.W. had been a " perfectly healthy, thriving infant." And at his nine-month visit, A.W. had been developing normally and meeting all age-appropriate milestones.
That changed on August 30, 2013. A.W. spent that day at home with Maxwell, White, X.W., L.S., and J.S. L.S. and J.S. played inside and outside of the house, and A.W. and X.W. stayed inside with Maxwell and White. Maxwell testified that she " always" kept A.W. with her. The only time before dinner on August 30 that Maxwell could not account for A.W. was when she showered. Maxwell observed that A.W. acted normally throughout the day; he was, as she put it, his " usual self." He was not fussy and did not " cry out" at any time. Around 5:00 p.m., the family ate dinner together. Maxwell made hamburger and rice soup, which everyone, including A.W., ate. During dinner, A.W. continued to act normally. He was not fussy or crying, and he did not appear to be ill. After dinner, A.W. became tired, and White told Maxwell that he would put A.W. to bed.
Maxwell decided to walk to her cousin's house to get a ride to the store. She took X.W., L.S., and J.S. with her, leaving A.W. alone with White. Maxwell testified that nothing seemed out of the ordinary when she left. Maxwell and the other children returned approximately ten minutes later. White met them at the door with A.W. in his arms and told Maxwell that A.W. was choking. When Maxwell saw A.W., his eyes were " rolled back," and he had " a little bit of rice coming out of his mouth and a little bit out of his nose." White told her that he had found a cigarette filter in A.W.'s mouth. Maxwell called 9-1-1 as White performed CPR.
Officer Guadalupe Ybarra and Officer Dana Lyons responded to the 9-1-1 call. White told Officer Ybarra that A.W. was choking, but White " didn't know if it was a cigarette butt or the hamburger . . . that [A.W.] had been fed earlier." When Officer Lyons arrived, White stated that A.W. was eating hamburger and rice and that
" all of a sudden [A.W.] started choking and he stopped breathing." White further explained that he had tried to " get the object out of [A.W.'s] throat." The officers looked for choking hazards on the floor. They saw none. Officer Ybarra instead observed that the home was fairly clean. Maxwell confirmed that she recently had cleaned the house. The officers also checked what they could see of A.W.'s body for injuries. Neither officer saw any bruising, including on A.W.'s ears. While they waited for an ambulance to arrive, Officer Lyons performed back thrusts on A.W., and White gave him rescue breaths.
Maxwell accompanied A.W. to the local hospital, where he was seen by Dr. Randall Fryer. Dr. Fryer immediately requested a helicopter to take A.W. to a hospital that could provide more care. Dr. Fryer observed that A.W. was seizing, was breathing irregularly, had unequal pupils, and had extensor posturing, which means that his arm was extended and stiff. Extensor posturing, Dr. Fryer explained, can indicate an injury at the deepest part of the brain. Dr. Fryer feared that A.W. was going to die.
In examining A.W., Dr. Fryer noticed a " yellowish brown" bruise on A.W.'s forehead, which Dr. Fryer thought was an old bruise. Maxwell stated that the bruise came from a sibling throwing something that struck A.W. Dr. Fryer also observed almost symmetrical bruising near the base of A.W.'s ears. Dr. Fryer estimated that this bruising was hours or minutes old based upon its color. Maxwell reported that the bruising on A.W.'s right ear was from a fall the day before. Based upon the seriousness of A.W.'s condition, the symmetry of the bruising at the base of his ears, his extensor posturing, his low neurological score, and his non-responsiveness, Dr. Fryer believed that A.W. had been " shaken."
A.W. was taken to Sanford Medical Center in Fargo, North Dakota. After seeing the trauma team, A.W. was seen by Dr. Kenneth Gheen, a pediatric criticalcare physician. When Dr. Gheen examined A.W., he noted " obvious bruising" on A.W.'s head. Dr. Gheen also reviewed A.W.'s CT scan from the emergency room, which showed a brain hemorrhage and a " little bit" of swelling.
A.W.'s medical team in Fargo also included Dr. Adam Jackson, a neurosurgeon. From his review of A.W.'s CT scans, Dr. Jackson saw acute blood between the lobes of A.W.'s brain as well as between the skull and the brain on the right side of A.W.'s head. Dr. Jackson testified that acute blood is deposited between three hours and three days of a CT scan. Dr. Jackson characterized the acute blood on A.W.'s brain as a subdural hematoma. According to Dr. Jackson, " in a young child, a spontaneous subdural hematoma is exceedingly rare, even in the literature, and so the most likely explanation is trauma." Dr. Jackson explained that although blood on the brain can collect slowly, that usually happens in older adults.
After reviewing A.W.'s MRI and examining him, Dr. Jackson also concluded that A.W. had an underlying brain injury as opposed to mere pressure on his brain. According to Dr. Jackson, A.W.'s MRI showed a lack of blood flow to part of his brain, which " can be from cortical injury or pressure on the brain. And in this case, from cortical injury." Dr. Jackson gave two reasons for this conclusion. First, a child A.W.'s age still has an anterior fontanel, the " baby soft spot," that can be felt to determine pressure in the head. In A.W.'s case, the anterior fontanel was not tense, meaning that the ...