Submitted: October 21, 2016
from United States District Court for the District of South
Dakota - Rapid City
RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
BENTON, Circuit Judge.
convicted Timothy Kenneth White Plume of assault resulting in
serious bodily injury in violation of 18 U.S.C. §§
1153 and 113(a)(6), and child abuse in violation of 18 U.S.C.
§ 1153 and South Dakota Codified Laws §§
26-10-01 and 26-8A-2(3) and (6). White Plume asserts: (1)
insufficiency of the evidence, (2) abuse of discretion in
excluding evidence of past child abuse by his wife, and (3)
precluding confrontation about his wife's past child
abuse. Having jurisdiction under 28 U.S.C. § 1291, this
afternoon of December 8, 2012, White Plume was at home with
his wife Natalie and her infant grandson, L.L. Natalie was
baking in the kitchen. White Plume was watching television
with L.L. in the bedroom. Later that afternoon, White Plume
became angry and visibly upset after Natalie accused him of
infidelity. Shortly after 4:30 p.m., White Plume came out of
the bedroom holding L.L., concerned something was wrong.
suffered significant, acute head trauma and a leg fracture.
The complex skull fractures were caused by force like a fall
from a roof to a concrete surface. L.L.-now blind, deaf, and
severely cognitively impaired-has little chance of ever
walking or talking.
Plume initially denied responsibility. He suggested that a
skin bump on L.L.'s head may have been responsible.
Later, he said Natalie had dragged L.L. across the bed by his
leg. White Plume eventually said he picked up and threw down
the bed in anger, causing L.L. to fall off. White Plume, in a
note for officers, apologized for what happened to L.L. At
trial, he testified he never saw L.L. fall off the bed,
instead claiming to black out shortly after arguing with
Natalie. The next thing he remembered was standing in the
bedroom with the box spring on top of his foot, with L.L. on
the ground making a "gurgling" sound.
a pre-trial conference editing the transcript of an audio
recording of White Plume's polygraph, he objected to the
removal of this exchange with officers:
Q: Did the children or have your children been taken away
from you? None of Natalie's children have been taken away
A: Yeah, her son did.
Q: Okay. For what ...