United States of America v. Wilbur Morrison, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 24-2134
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United States of America
Plaintiff - Appellee
v.
Wilbur Morrison, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: February 13, 2025
Filed: July 21, 2025
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Before SMITH, KELLY, and KOBES, Circuit Judges.
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SMITH, Circuit Judge.
A jury convicted Wilbur Morrison, Jr. of two counts of aggravated sexual
abuse of a child in Indian territory, in violation of 18 U.S.C. §§ 1153, 2241(c), and
2246(2)(A) (Counts I and II), as well as one count of assault resulting in serious
bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6) (Count III). The
district court sentenced Morrison to 480 months’ imprisonment for Counts I and II
and 120 months on Count III, with all counts to run concurrently. At sentencing, the

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district court orally pronounced concurrent supervised release terms of five years for
Counts I and II and three years for Count III. However, the written judgment outlined
concurrent supervised release terms of five years for all three counts. On appeal,
Morrison argues that (1) the district court abused its discretion in admitting an
excerpt of a forensic interview and accompanying testimony; (2) the evidence was
insufficient to convict him on Counts I and II; (3) his sentence is substantively
unreasonable; and (4) the written judgment conflicts with the oral pronouncement of
the sentence and should be remanded for correction. We affirm in part, vacate in
part, and remand for further proceedings consistent with this opinion.
I. Background
Morrison and his three children, S.M., T.M., and K.M., lived with Morrison’s
brother Charles, sister Elayne, and several other family members in a residence
within the Pine Ridge Reservation. In January 2023, law enforcement was called to
the residence after a domestic dispute between Morrison and Charles became
violent. Morrison, Charles, and Elayne testified that Morrison was intoxicated. And
a minor disagreement became a major fight.
Morrison’s children, however, recalled the events differently. According to
S.M., T.M., and K.M., Morrison was in the living room with them watching
television. T.M. and K.M. were sitting on the couch, and Morrison was lying next to
S.M. on the floor. T.M., who was ten years old at the time, testified that he saw
Morrison “[r]aping S.M.” R. Doc. 85, at 109. At trial, T.M. used an anatomical
drawing to explain that he saw Morrison’s “middle part” in S.M.’s buttocks. Id. T.M.
saw S.M. laying down and Morrison behind her with his hands on her waist and the
blanket moving “side to side.” Id. at 111. T.M. saw Morrison’s pants on the ground
and eventually saw Morrison’s penis when the blanket was lifted. K.M., who was
nine years old at the time, confirmed T.M.’s account of seeing Morrison lie next to
S.M. and seeing the blanket move. He testified that he was able to see Morrison put
his leg over S.M. and that his pants were off and lying on the ground nearby. Counsel
asked K.M. if he “remember[ed] how it was that [Morrison was] able to get his
middle part into her B.” R. Doc. 87, at 10. K.M. responded, “He pulled down her

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pants.” Id. T.M. testified that after Morrison passed out, he went to go tell Elayne
“S.M.’s getting raped.” R. Doc. 85, at 113. K.M. testified that Charles came into the
living room, removed the blanket from Morrison to expose his naked body, and then
said, “[g]et off your daughter.” R. Doc. 87, at 16. At that point, Morrison grabbed a
crowbar, and he started fighting with Charles. When the fight erupted, Elayne called
law enforcement and took the children to a neighbor’s house. The neighbor testified
that T.M. told her that Morrison was “doing gay things to his sister.” R. Doc. 85, at
97. The neighbor also testified that S.M. told her, “[S]ometimes I poop blood.” Id.
Following the incident, law enforcement arranged two forensic interviews
with S.M. conducted by Brandi Tonkel––one on January 23, 2023, and another on
February 28, 2023. In the second interview, Tonkel asked S.M. if the “disgusting
things” happened on “other days.” R. Doc. 87, at 88. S.M. responded that it would
happen on “[o]ther days too” often “at night.” Id. at 88–89. Tonkel asked whether it
“would always be [Morrison’s] middle part to that part of you or would it be other
places on your body?” R. Doc. 60-33, at 35:39–48. S.M. responded, “Other places.”
Id. at 35:48. When asked where Morrison’s middle part would go on these other
nights, S.M. pointed to the “vaginal labial area” of the diagram. R. Doc. 87, at 90.
At trial, after testifying about the events charged in Count II, S.M. was asked
if she “remember[ed] the second time that [she] spoke with [Tonkel]” and “told her
about the other times?” Id. at 48. S.M. shook her head no. Next, she was asked if she
“remember[ed] telling [Tonkel] about the other times,” and she shook her head
again. Id. Then, counsel asked, “Do you just not want to talk about the other times?”
Id. S.M. nodded her head in agreement. The government did not question her further.
Later, over Morrison’s objection, the government sought to introduce into evidence
an excerpt from S.M.’s second forensic interview and testimony from Tonkel
regarding the forensic interview under the residual exception to the hearsay rule. The
court agreed that S.M. “was not able to testify about the other incident” and a portion
of the interview could come in under “the residual exception.” Id. at 85. The
government presented to the jury approximately three minutes of the video and had
Tonkel testify about the interview.

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The government also introduced medical testimony concerning S.M.
Although S.M. declined a genital examination, her physical examination revealed
she had chunks of hair missing, and her blood test came back positive for an
advanced stage of syphilis, indicating she had the infection for an extended period
of time. The government presented expert medical testimony that syphilis is a
“blood-borne pathogen,” R. Doc. 86, at 30, that can be transmitted through anal,
vaginal, or oral intercourse and can often be “proof of sexual abuse in children,” id.
at 34. The government also presented Morrison’s medical records from a few months
prior to the January incident showing that he had tested positive for syphilis and had
only been partially treated.
II. Discussion
A. Admissibility of the Forensic Interview
Morrison argues that the district court abused its discretion by admitting the
forensic interview tape and the accompanying testimony under Federal Rule of
Evidence 807. We review a district court’s admission of hearsay evidence for abuse
of discretion. United States v. Gallardo, 970 F.3d 1042, 1045 (8th Cir. 2020).
Evidence is admissible under the residual exception to hearsay if
(1) it has circumstantial guarantees of trustworthiness that are
equivalent to those accompanying the enumerated hearsay exceptions;
(2) it is offered as evidence of a material fact; (3) it is more probative
on the point for which it is offered than any other reasonably available
evidence; and (4) its admission would best serve the purposes of these
rules and the interests of justice.
United States v. Sully, 114 F.4th 677, 685 (8th Cir. 2024) (quoting United States v.
Bruguier, 961 F.3d 1031, 1033 (8th Cir. 2020)). When evaluating the trustworthiness
of an out-of-court statement offered in lieu of a child’s direct testimony regarding
sexual abuse, we weigh the following factors:
the training and experience of the interviewer; whether the child was
interviewed using open-ended questions; the age of the child and

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whether the child used age-appropriate language in discussing the
abuse; the length of time between the incident of abuse and the making
of the hearsay statement; and whether the child repeated the same facts
consistently to adults.
Id. (quoting United States v. Thunder Horse, 370 F.3d 745, 748 (8th Cir. 2004)).
“No single factor is dispositive; we examine the factors to determine if there are
sufficient positive signs of trustworthiness.” Thunder Horse, 370 F.3d at 748
(quoting United States v. NB, 59 F.3d 771, 776 (8th Cir. 1995)). On appeal, Morrison
argues that the statements lacked circumstantial guarantees of trustworthiness.
We conclude that the record contains sufficient circumstantial guarantees of
trustworthiness to permit admission of the hearsay in Tonkel’s testimony. First,
Tonkel had over 14 years of experience in interviewing child sexual abuse victims.
Second, Tonkel testified that she asked open-ended questions throughout the
interview. The interview excerpt confirms this testimony. Tonkel asked whether it
“would it always be [Morrison’s] middle part to that part of you or would it be other
places on your body?” R. Doc. 60-33, at 35:39–48. This arguably leading question
occurred after S.M. had already told Tonkel what happened on the specific night in
January. S.M. responded, “Other places,” id. at 35:48, and then repeatedly pointed
to the vaginal labial area on an anatomically correct diagram when asked where
Morrison’s middle part would go on the other days. Next, S.M. was eight years old
at the time, “marked anatomically correct drawings during [the] interview[,] . . . and
discussed the incidents of sexual abuse in a childlike way.” United States v. Grooms,
978 F.2d 425, 427 (8th Cir. 1992); see also Thunder Horse, 370 F.3d at 748 (“A
declarant’s young age is a factor that may substantially lessen the degree of
skepticism with which our [c]ourt views her motives, and mitigates in favor of the
trustworthiness and admissibility of her declarations.” (internal quotation marks
omitted)).
Next, S.M. spoke only to Tonkel about these other incidents. Consequently,
there are no other accounts to compare for consistency. The absence of other
accounts by S.M. neither strengthens nor weakens the circumstantial guarantee of

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trustworthiness of her statement to Tonkel. S.M. testified that “Elayne got mad” at
her for telling the neighbor about the abuse and that “[t]hey blamed it all on [her].”
R. Doc. 87, at 47–48. Considering this negative response, it is not surprising that
S.M. did not disclose her abuse to Elayne or other family members and was reluctant
to testify about it in open court.
The absence of specific dates for the alleged abuse prevents assessment of the
proximity of the incidents to the interview. Such knowledge could have affected the
perception of the trustworthiness of S.M.’s statement. Nevertheless, in light of the
other factors, we are satisfied that sufficient circumstantial guarantees of
trustworthiness permitted the admission of the forensic interview video and the
accompanying testimony. See NB, 59 F.3d at 777 (“Given the strength of other
factors, . . . we do not think the elapsed time between . . . [the] incident[s] of abuse
and her initial statement . . . outweighs the other indicia of trustworthiness in this
case.”). Accordingly, the district court did not abuse its discretion in admitting this
evidence.
B. Sufficiency of the Evidence
Next, Morrison challenges the sufficiency of the evidence for his convictions
for aggravated sexual abuse of a minor involving contact between the penis and
vulva (Count I) and contact between the penis and the anus (Count II).
“This court reviews the sufficiency of the evidence de novo, viewing evidence
in the light most favorable to the jury’s verdict, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the
verdict.” United States v. Fool Bear, 903 F.3d 704, 708 (8th Cir. 2018) (internal
quotation marks omitted). “We will overturn the verdict only if no reasonable jury
could have found the defendant guilty beyond a reasonable doubt.” United States v.
King, 898 F.3d 797, 808 (8th Cir. 2018).

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1. Count I
Under 18 U.S.C. § 2241(c), any person who “knowingly engages in a sexual
act with another person who has not attained the age of 12 years . . . or attempts to
do so” is guilty of aggravated sexual abuse. The term “sexual act” includes “contact
between the penis and the vulva or the penis and the anus, and for purposes of this
subparagraph contact involving the penis occurs upon penetration, however slight.”
Id. § 2246(2)(A). The jury was instructed that it must find Morrison guilty of Count
I if the government proved that “between August 1, 2022, and January 12, 2023,
[Morrison] . . . engaged or attempted to engage in a sexual act, that is contact
between the penis and the vulva, with S.M.” R. Doc. 59, at 3 (bold omitted).
Morrison argues that the evidence was insufficient for Count I because there
was insufficient evidence that he penetrated S.M.’s vulva. Morrison argues that his
case is similar to our precedent in United States v. Plenty Arrows, 946 F.2d 62 (8th
Cir. 1991) and United States v. Reddest, 512 F.3d 1067 (8th Cir. 2008). These cases
are distinguishable.
In Plenty Arrows, we found the evidence insufficient to support a conviction
for aggravated sexual abuse. 946 F.2d at 66. The victim testified that the defendant
had “touched him from [the] back of [his] behind” but said no more related to the
abuse. Id. at 65 (internal quotation marks omitted). “The government made no
further effort to elicit what the victim meant by this––whether he was referring to
his buttocks, anus, or to some other part of his anatomy.” Id. Therefore, the testimony
was “too vague to support the inference that contact involving penetration occurred
between the penis and anus.” Id. The court in Plenty Arrows contrasted its case with
our precedent in United States v. St. John, 851 F.2d 1096 (8th Cir. 1988), in which
the victim testified “that he had ‘humped’ with his mother and had been touched
with the ‘bad touch’ by her,” Plenty Arrows, 946 F.2d at 64 (quoting St. John, 851
F.2d at 1099), as well as “marked anatomically correct diagrams to demonstrate what
had taken place,” id. at 65 (quoting St. John, 851 F.2d at 1099). The court in Plenty
Arrows found that reliance on St. John was “unavailing” because “the evidence in
that case was much more detailed.” Id. at 65.

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In Reddest, we found that the evidence was insufficient to support the
defendant’s conviction for “penetration of the genital opening . . . by the finger . . . .”
512 F.3d at 1071 (ellipses in original) (internal quotation marks omitted). The victim
testified that the defendant “touched [her] vagina” but confirmed that he only
touched “the outside of [her] vagina.” Id. at 1072 (internal quotation marks omitted).
Moreover, the defendant sent a message to the victim saying he “accidentally
touched [her] private part.” Id. (internal quotation marks omitted). We found “this
evidence insufficient to prove penetration of the genital opening” because “it [was]
not clear where [the defendant’s] finger was or how close it was to the genital
opening.” Id. (internal quotation marks omitted).
The evidence in this case, however, provides sufficient detail to distinguish it
from Plenty Arrows and Reddest. It is sufficient to support the jury’s verdict that
Morrison penetrated S.M.’s vulva.
Unlike in Plenty Arrows, S.M.’s forensic interview revealed that Morrison’s
penis would go to a specific part of S.M.’s anatomy. See 946 F.2d at 65. When asked
where Morrison’s “middle part [would] go” on the other days, she repeatedly marked
the vaginal labial area on an anatomically correct diagram. R. Doc. 60-33, at 36:13–
16. This is in sharp contrast to Plenty Arrows, in which the testimony did not even
establish whether the victim “was referring to his buttocks, anus, or some other part
of his anatomy.” 946 F.2d at 65. Here, the language “go,” R. Doc. 60-33, at 36:15,
albeit missing the word “into,” is less vague and imprecise than “touched,” Plenty
Arrows, 946 F.2d at 65, when determining whether penetration occurred. Moreover,
the use of an anatomically specific diagram affirmatively strengthens the child’s
responses because it allowed her to specifically identify the “other places,” R. Doc.
60-33, at 35:38, that Morrison’s “middle part [would] go,” id. at 36:15–16; see St.
John, 851 F.2d at 1099 (finding sufficient evidence where victim “marked
anatomically correct diagrams to demonstrate what had taken place” even amidst
using less descriptive language to describe the events like “touched with the ‘bad
touch’”); see also United States v. Lohnes, 554 F.3d 1166, 1169 (8th Cir. 2009)
(holding that victim’s inability “to verbalize the sexual act d[id] not render her

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testimony insufficient” because she testified that the defendant did “bad stuff to
[her]” and “circled words on a diagram”).
Further, the jury heard expert testimony explaining that the area S.M. pointed
to on the diagram was “the split between the labia majora” and that “[t]he vulva is
essentially that labium majora, labium minora . . . [the] whole area that’s technically
outside of the vagina.” R. Doc. 86, at 105. Accordingly, a jury could infer from this
description of the vulva that Morrison’s penis could have penetrated, even slightly,
the “outside of the vagina,” id., when his “middle part [would] go,” R. Doc. 60-33,
at 36:15–16, to her labia majora.
The jury’s conclusion that penetration of the vulva occurred was further
supported by the circumstantial evidence that, prior to the January incident, S.M.
had been suffering from an advanced stage of syphilis––the same sexually
transmitted disease that Morrison had sought treatment for months earlier. Morrison
argues that the syphilis evidence was insufficient to support his conviction because
the transmission of syphilis could have occurred via anal penetration instead of
vaginal penetration. However, “[t]he question in a sufficiency-of-the-evidence
challenge is not whether a reasonable jury could possibly conceive of an alternative
interpretation of the evidence at trial.” United States v. White Bull, 646 F.3d 1082,
1089 (8th Cir. 2011). Rather, “we ask whether any reasonable jury could have
concluded” that this evidence supports the conclusion that Morrison penetrated
S.M.’s vulva. Id.
Here, the jury heard medical testimony that syphilis is a blood-borne pathogen
that can be “transmitted through semen” and is not contracted “casually.” R. Doc.
86, at 30. Rather, it is often transmitted through anal, vaginal, or oral intercourse.
Intercourse is a form of sexual contact that necessarily involves penetration. We
acknowledge that the circumstantial evidence of a sexually transmitted disease,
standing alone, may not be sufficiently direct evidence to convict Morrison of
penetrating S.M.’s vulva. Nonetheless, here, it is circumstantial evidence that
demonstrates a preexisting pattern of sexual abuse that necessarily involved

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intercourse. See United States v. Jones, 440 F.3d 927, 928 (8th Cir. 2006)
(“Penetration can be proved by circumstantial evidence, and when there is some
proof, it is a question of fact whether it occurred.” (internal quotation marks
omitted)). Therefore, a jury could rely on this evidence, in conjunction with the
forensic interview, to reasonably infer that Morrison had penetrated S.M.’s vulva,
even slightly, when his “middle part [would] go” to S.M.’s vaginal labia area on
those other nights. R. Doc. 60-33, at 36:13–16.
Therefore, considering S.M.’s unambiguous identification of the vaginal labia
area as the place where Morrison’s middle part would go, the medical testimony that
the vulva is defined as the exterior of the vagina, and S.M.’s diagnosis with an
advanced stage of the same sexually transmitted disease as Morrison, we cannot say
that “no reasonable jury could have found [Morrison] guilty beyond a reasonable
doubt” of penetrating S.M.’s vulva with his penis. King, 898 F.3d at 808. We have
said that a “[s]ufficiency review essentially addresses whether the government’s case
was so lacking that it should not have even been submitted to the jury. That limited
review does not intrude on the jury’s role to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” United States v. McKee, 42 F.4th 910, 913 (8th Cir. 2022) (quoting United
States v. Bull, 8 F.4th 762, 770 (8th Cir. 2021)). Therefore, we conclude that the jury
had sufficient evidence to reasonably conclude that Morrison was guilty beyond a
reasonable doubt of aggravated sexual abuse as defined in Count I.
2. Count II
Morrison also challenges the sufficiency of the evidence to support his
conviction for Count II. He argues that the absence of testimony from S.M. about
Morrison’s penis penetrating her anus, and her statement that Morrison did
“something to [her] butt” was insufficient to demonstrate penetration. R. Doc. 87, at
43. At trial, S.M. used anatomically correct drawings to identify “what part of
[Morrison]” was “use[d] to touch [her] on [her] butt.” Id. at 44. When asked how
that felt, S.M. confirmed that she had told Tonkel that it was “weird” and
“disgusting.” Id. at 45.

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Morrison’s challenge fails. S.M.’s testimony was not the only account the jury
heard describing the abuse. Both of S.M.’s brothers, T.M. and K.M., also testified
about what they witnessed the night of the alleged incident. T.M. testified that he
saw Morrison “[r]aping S.M.” R. Doc. 85, at 109. He explained that he saw
Morrison’s penis because his pants were off and he was lying down on his side under
a blanket. T.M. testified that he saw the blanket “[m]oving side to side” and saw
Morrison’s hands “[o]n her waist.” Id. at 111–12. K.M. corroborated this account by
testifying that he saw Morrison and S.M. under a blanket, that the blanket was
moving, and that Morrison’s pants were off. The government asked K.M. whether
he “remember[ed] how it was that [Morrison was] able to get his middle part into
her B?” R. Doc. 87, at 10. K.M. responded, “He pulled down her pants.” Id. The
neighbor also testified that T.M. told her that Morrison was “doing gay things” to
S.M. and that S.M. told her that “sometimes [she] poop[s] blood.” R. Doc. 85, at 97.
Based on this evidence, we conclude that a reasonable jury could conclude
that Morrison penetrated S.M.’s anus with his penis. Therefore, taking the children’s
and the neighbor’s testimony in the light most favorable to the verdict, resolving
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences drawn from the evidence to support the jury’s verdict, there is sufficient
evidence to support Morrison’s conviction for Count II.
C. The Sentence
1. Substantive Reasonableness
Morrison challenges the substantive reasonableness of his 480-month
sentence, arguing that the district court gave improper weight to Morrison’s decision
to proceed to trial.
This court reviews for an abuse of discretion the substantive reasonableness
of a sentence. United States v. Armond, 135 F.4th 626, 628 (8th Cir. 2025) (citing
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). “A district
court abuses its discretion when it fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant

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factor, or considers only the appropriate factors but in weighing those factors
commits a clear error of judgment.” Id. (internal quotation marks omitted).
Here, Morrison’s 480-month sentence was a downward variance from a life
sentence. The district court ultimately varied downward because it believed that this
conduct did not “happen over a multi-year period.” R. Doc. 80, at 18. The district
court amply discussed the 18 U.S.C. § 3553(a) factors and noted the aggravating
factors, including the following: the victim’s age, the victim’s relationship to the
defendant, the repeated instances of abuse, the transfer of syphilis, the severity of
the victim’s syphilis condition, and the defendant’s lack of acceptance.1 The court’s
discussion reflects a sentence that “rest[s] on precisely the kind of defendant-specific
determinations that are within the special competence of sentencing courts.”
Feemster, 572 F.3d at 464 (internal quotation marks omitted). Accordingly, the
district court did not abuse its discretion in sentencing Morrison to 480 months’
imprisonment.
2. Terms of Supervised Release
Lastly, Morrison argues that the district court’s oral pronouncement setting
the length of his supervised release contradicts the written judgment. Here, the
1 Here, when discussing Morrison’s acceptance of responsibility, the district
court reasoned that Morrison had failed to accept responsibility “[a]nd instead, had
[his] daughter and [his] two sons . . . testify.” R. Doc. 81, at 17. The court noted that
“[h]aving them testify doubles the trauma that they’ve already experienced. Id. at
18. Morrison contends that this was an improper factor to consider because it
constituted punishment for exercising his right to a jury trial. See United States v.
Sales, 725 F.2d 458, 460 (8th Cir. 1984) (“A court may not use the sentencing
process to punish a defendant, notwithstanding his guilt, for exercising his right to
receive a full and fair trial.”), but see United States v. Cruz-Zuniga, 571 F.3d 721,
727 (8th Cir. 2009) (“It is generally permissible to grant leniency to defendants who
plead guilty, and to withhold leniency from defendants who go to trial.”).We need
not decide whether the court’s discussion here constituted punishment of the
defendant for exercising his right to a jury trial because the record is clear that the
district court did not give significant weight to this factor and ultimately varied
downward.

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written judgment expands the term of supervised release for Count III from three to
five years. The parties do not dispute this conflict in the record. “[A] district court’s
oral sentence controls when it conflicts with the written judgment.” United States v.
Olson, 716 F.3d 1052, 1056 (8th Cir. 2013). “When such conflicts exist, the portion
of the written judgment that is broader than the oral version is void.” United States
v. Mays, 993 F.3d 607, 622 (8th Cir. 2021) (internal quotation marks omitted). The
“appropriate remedy” is to remand to the district court with instructions to “reconcile
the written judgment with the oral pronouncement by striking the disputed portion.”
Id. (internal quotation marks omitted).
III. Conclusion
For the foregoing reasons, we affirm the district court’s admission of the
forensic interview evidence; we affirm the judgment of conviction; we affirm the
sentence of imprisonment it imposed; we vacate the terms of supervised release; and
we remand it to the district court for it to amend its written judgment to conform to
its oral pronouncement regarding supervised release.
______________________________

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