United States of America v. Shane Mousseaux

United States Court of Appeals
For the Eighth Circuit
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No. 24-2688
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United States of America
Plaintiff - Appellee
v.
Shane Mousseaux
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Southern
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Submitted: June 11, 2025
Filed: August 18, 2025
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.
Shane Mousseaux was charged with several counts of sexual abuse and
abusive sexual contact of a minor between the ages of 12 and 16. A jury convicted
Mousseaux on all charges. On appeal, Mousseaux asserts the district court erred
when it allowed the government to elicit hearsay testimony from the victims and two
family members. Although it was a clear abuse of discretion to allow family
members to describe repeatedly the children’s emotional demeanor and restate

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hearsay statements that went far beyond the court’s stated nonhearsay purpose, the
error was harmless. We affirm.
I. BACKGROUND
In April 2015, Mousseaux, an enrolled member of the Rosebud Sioux Tribe,
began living on the Yankton Sioux Reservation with his then-girlfriend Desiree and
Desiree’s three daughters, who we refer to by pseudonyms as Sarah, Jane, and Anne.
Mousseaux moved out of the residence in June 2022. Counts 1 through 4 of the
superseding indictment allege sexual acts and sexual contact involving Mousseaux
and Sarah between August 6, 2020, and June 21, 2022. Count 5 alleges an incident
of sexual contact involving Mousseaux and Jane between May 1, 2022, and June 21,
2022.
The case proceeded to trial in April 2024. Sarah testified that Mousseaux
engaged in sexual activity with her for the first time when she was 14 years old. She
further testified that Mousseaux had sex and engaged in other sexual contact with
her multiple times while she was under the age of 16. Sarah testified that the contact
took place in different rooms in the home, including her mother’s bedroom, in her
bedroom, and in the living room. Sarah recalled the incidents happened when her
mom was away and sometimes when everyone was asleep in the home.
Sarah also testified about a time when her youngest sister, Anne, came into
the living room to ask Sarah to braid her hair. Sarah told the jury that when this
happened, Mousseaux was sitting on the couch next to her and leaning toward her.
Sarah testified that when Anne appeared, Mousseaux looked out the window behind
the couch.
According to Anne’s trial testimony, when she went upstairs to ask Sarah to
braid her hair, she saw Mousseaux laying on top of Sarah, which scared her. Anne
described Sarah as “laying there like she was stiff.” When Mousseaux saw Anne,
he got off Sarah and moved to another couch in the living room. Anne testified that

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Sarah braided her hair and then Anne went downstairs and told Jane about seeing
Mousseaux on top of Sarah.
Jane told the jury that when Anne came downstairs, she looked scared. She
stated Anne’s “eyes were, like, big, and she had tears in her eyes.” Anne reported
to Jane that Mousseaux “was on top of [Sarah], and then she said that he got up all
fast and tried to look out the window, but she said that she saw them kissing.”
Jane also testified about an encounter with Mousseaux in May 2022 when she
was 14 years old. Jane testified that Mousseaux talked to her about “gross things,”
including questions about boys touching her, her interest in a threesome, if she was
a virgin, and if she ever got wet or knew what that was. At some point, Mousseaux
touched her upper inner thigh, and he asked her how it made her feel. Jane testified
that she felt uncomfortable and “grossed out.” In June 2022, while riding in the car
with her aunt, Jane told her aunt about this conversation with Mousseaux, about
Mousseaux touching her upper inner thigh, and about what Anne had reported seeing
between Mousseaux and Sarah.
On June 17, 2022, Sarah and Jane got into an altercation that resulted in Jane
suffering a broken finger. Testimony at trial revealed that during this time family
tensions were mounting. Sarah appeared to resent Desiree’s parenting style, Jane
had become withdrawn, and each girl had begun to express separate concerns to
other relatives. Specifically, Sarah told her aunt that Mousseaux behaved in sexually
inappropriate ways that made her uncomfortable.
Over Mousseaux’s objections, the aunt testified that while she was driving
Jane to her home in Bonesteel, South Dakota, Jane began crying and stated, “Auntie,
there’s something that I have to tell you.” Thereafter, Jane related that she was
scared, and reported that Mousseaux had touched her upper inner thigh, which made
her feel uncomfortable. The aunt informed the jury that based on this information,
she decided to convene a meeting with several family members, after which the
family decided to call a tribal child protection worker. The next day, Desiree learned

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of the allegations and demanded that Mousseaux move out of the house. After
hearing Jane’s allegations, Sarah told her grandmother that Mousseaux had
inappropriate contact with her. Specifically, Sarah told her grandmother that
Mousseaux had sex with her, which was later relayed to tribal protection services.
By early July 2022, tribal authorities had referred the case to the Federal
Bureau of Investigations (“FBI”), and agents scheduled forensic interviews of all
three children. Sarah provided details of sexual contact with Mousseaux from the
time she was 14 years old until close to the age of 16. Jane described the
conversation with Mousseaux that made her uncomfortable as well as when he
touched her upper thigh. Anne recounted during her interview when she saw
Mousseaux on top of Sarah on the couch. Mousseaux later told the FBI he merely
“got close to [Sarah’s] face to look at her braces.”
At trial, Mousseaux asserted that the children fabricated the allegations due to
friction with their mother and a desire to move out of her home. This claim was
explored at length during the trial—with defense counsel inquiring whether Sarah
and Jane harbored resentment toward Desiree and whether the allegations against
Mousseaux were an artifice designed to allow them to leave their mother’s home.
Through cross-examination and in closing arguments, defense counsel emphasized
that about seven months before the reported abuse, Sarah and Jane ran away from
Desiree’s house after a heated fight with their mother and stayed with relatives
during a child protective services investigation that focused on Desiree’s conduct
rather than any conduct involving Mousseaux. Mousseaux pointed out that despite
having an opportunity to raise concerns about sexual abuse at that time, the girls
never accused or even mentioned improper acts by Mousseaux.
The jury found Mousseaux guilty on all counts. As to the conduct involving
Sarah, the district court imposed concurrent 120-month terms on the sexual abuse
counts and a concurrent term of 24 months for abusive sexual contact. As to the
conduct involving Jane, the court imposed a consecutive 15-month term, for a total
imprisonment term of 135 months to be followed by 5 years of supervised release.

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Mousseaux seeks a new trial on the grounds that the district court committed
a clear abuse of discretion when it allowed inadmissible hearsay evidence and
because the court’s limiting instructions were ineffective to avoid improper
bolstering of the children’s credibility, these evidentiary errors were not harmless.
II. DISCUSSION
Mousseaux challenges the district court’s admission of three groups of
out-of-court statements: (1) Anne’s statement to Jane that Anne had seen Mousseaux
kissing Sarah; (2) Jane’s subsequent statement to her aunt repeating Anne’s kissing
claim and her more detailed statements related to Mousseaux’s sexual remarks and
touching; and (3) Sarah’s statement to her grandmother that Mousseaux had engaged
in sexual acts and sexual contact with her. According to Mousseaux, because each
statement was hearsay admitted for its truth and the effect was to bolster the
children’s credibility, the errors were not harmless and he is entitled to a new trial.
We review the admission of alleged hearsay testimony for a “clear and
prejudicial abuse of discretion.” United States v. Norman, 107 F.4th 805, 810 (8th
Cir. 2024). Any “error in admitting hearsay evidence is harmless if the error did not
influence or had only a very slight influence on the verdict.” United States v. Lasley,
917 F.3d 661, 665 (8th Cir. 2019) (per curiam) (cleaned up).
A. Jane’s Testimony Recounting What Anne Told Her
Mousseaux contends the district court clearly abused its discretion when it
admitted Jane’s testimony that Anne told her that she saw Mousseaux kissing Sarah
because it is hearsay and does not fall into an exception. Federal Rule of
Evidence 803(2) allows for the admission of an out-of-court “statement relating to a
startling event or condition, made while the declarant was under the stress of
excitement that it caused.” The rationale for excepting excited utterances from the
general rule against hearsay is due to experience that teaches statements made while
under the stress or shock of an event retain “a guarantee of trustworthiness that is

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not present when the declarant has the opportunity for reflection and deliberation.”
United States v. Graves, 756 F.3d 602, 604–05 (8th Cir. 2014) (cleaned up).
Whether the declarant was still excited, or had “the opportunity for reflection,” is a
factual determination within the district court’s sound discretion. Id.
Here, the district court found the statements Anne made after she came down
the stairs “wide-eyed” and “teary-eyed” were admissible as excited utterances. The
defense vigorously cross-examined the statements, including that Anne never
testified to the kissing. After careful review of the record, we conclude the district
court committed no abuse of discretion, clear or otherwise, when it found Anne’s
statements were made under the stress of a startling event. See id. at 605–06
(determining the child’s state of distress demonstrated by shaking and the
appearance of crying shortly before she made the statements in response to a general
inquiry about what had happened was sufficient to support application of the excited
utterance exception). Even though Anne did not testify at trial about the detail that
she saw Mousseaux and Sarah “kissing,” this is the sort of inconsistency that goes
to weight rather than admissibility. See United States v. Byrne, 83 F.3d 984, 990
(8th Cir. 1996).
Mousseaux also claims the district court abused its discretion when it failed
to give the jury a limiting instruction. Excited utterances are nonhearsay and do not
ordinarily require a limiting instruction. See United States v. Moses, 15 F.3d 774,
777 (8th Cir. 1994) (“[T]he statement could have been admitted for the truth of the
matter asserted because it falls within the excited utterance exception.”). The district
court did not abuse its discretion in admitting Anne’s out-of-court statements to Jane
under the excited utterance exception nor by not giving the jury a limiting
instruction.
B. The Aunt’s and Grandmother’s Out-of-Court Statements
Mousseaux next challenges three statements admitted by the district court
during the aunt’s and grandmother’s testimony. Those statements include: (1) Jane’s

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statements to her aunt relaying Anne’s allegations; (2) Jane’s disclosure to her aunt
about Mousseaux touching her and conversation with her that made her
uncomfortable; and (3) Sarah’s partial disclosure to her grandmother about sexual
acts with Mousseaux.
The district court received each of the statements for a limited purpose and
gave a limiting instruction before admitting the statements. In the limiting
instructions, the court told the jury that the statements were not offered for their
truth, but rather for the limited purpose of explaining “what this witness did with the
information that she received and how this led to an investigation.” At one point
when the aunt was testifying, the court interjected, stating the answer had become a
narrative and directing the prosecutor to ask another question. Similarly, before the
grandmother began testifying about what Sarah had reported to her, the district court
gave the same limiting instruction and added that the testimony, if inconsistent with
Sarah’s testimony, could be used to assess credibility.
An out-of-court statement offered strictly to show its effect on the listener or
to explain subsequent actions by the listener is nonhearsay. United States v. Wright,
739 F.3d 1160, 1170–71 (8th Cir. 2014). This Court has noted that a statement is
not hearsay if it is admitted to explain the origin of an investigation, such as how
and when a witness learned about an incident and the steps the witness took in
response. United States v. Mackey, 83 F.4th 672, 675 (8th Cir. 2023). Details that
go beyond explaining the origins of the investigation, such as details about the
incident itself, the emotions displayed, or a person’s demeanor, are generally
improper. Id. at 675–76. When additional testimony that goes beyond explaining
the origins of an investigation is introduced, it becomes problematic, particularly if
the testimony serves to bolster the alleged victim’s credibility and help rebut an
allegation of fabrication. Id. at 676. The harmful risk is allowing a witness to
essentially recite the substance of the out-of-court accusation as “background”
information, which tends to cross the line and begin to function as substantive proof
or bolstering testimony. See United States v. Bercier, 506 F.3d 625, 632 (8th Cir.

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2007) (finding error where a witness’s extended recitation of the victim’s statements
described the entire sexual assault).
1. The Aunt’s Testimony About Jane’s Statements
The disputed evidence was introduced when the aunt testified about Jane
relaying to her that Anne saw Mousseaux kissing Sarah. The aunt also described
Jane’s reporting to her about sexual questions Mousseaux had asked Jane, that
Mousseaux touched Jane’s inner thigh, and that Mousseaux made Jane feel afraid.
When limited carefully, statements providing context for other admissible
statements may be permissible. See United States v. Ralston, 973 F.3d 896, 913 (8th
Cir. 2020). Here, however, the aunt’s recitation went beyond explaining why she
decided to involve other family members or call child protective services.
Q: [Aunt], can you tell us what [Jane] told you in the car that day
in June of 2022.
A: She started crying right away, and she told me that -- she said,
“Auntie, there’s something that I have to tell you.” And she was crying,
so it made me worried. So I said, “What, [Jane]. Just tell me.” I said,
“I won’t say nothing if you don’t want me to.” And she said, “I’m
scared.” And so I said, “Just tell me.” It got me worried at that point.
And she said, “Boo” -- they called [Anne] Boo-boo, and then the girls
call her Boo even at that. So she said, “Boo seen Shane kissing [Sarah]
-- Boo caught Shane kissing [Sarah] on the couch.” And she was
crying. And -- yeah. It led into her saying more, more stuff. She just,
like, started blurting everything out. She was crying. I didn’t cry at the
time. I was just listening to her. Yeah.
Q: What else did [Jane] tell you about maybe her interactions
with [Mousseaux]?
COURT: The same instruction applies. You can’t consider it for
the truth of the matter asserted but rather for why this witness did what
she did. Go ahead.

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A: She started telling me about the conversation that her and
Shane had, and it was just, like, a couple days before, because Shane
wasn’t in the area, but it was just a couple days before he left the area.
And she said that “And, Auntie, he had a conversation with me, like a
sex talk. And he was asking me all kinds of stuff that I didn’t -- I
shouldn’t even know.” And she was, like, trying to cry, and I was
listening to her.
And then she said just -- she said, like -- asked her about
masturbation, asked her if she gets wet down there, if she shaves down
there in her private area, asked her if she has a boyfriend or if she ever
kissed a boy. And then as time went on, he -- because the way their
couch was shaped is like an L, kind of. And he was sitting at the end.
And she said as he was talking, he kept getting closer to her. He kept
sliding closer, and then pretty soon he was sitting by her.
And then he said, “Well, does this make you uncomfortable?”
and he touched her leg, her right leg as he was sitting there. “Does this
make you uncomfortable?” And I can’t remember if she said yes or no
or what, but I know she said she was scared. She felt uncomfortable.
And then it went into stand up -- there was a lot said. I can’t even really
remember everything but private stuff.
COURT: It’s gotten kind of narrative, so go ahead with our next
question.
Q: I do have one follow-up question. When you mentioned that
[Jane] had said he touched her on her leg, you kind of made a gesture
when you did that. Can you describe --
DEFENSE COUNSEL: Objection, Your Honor.
THE COURT: Overruled.
Q: Can you describe where you just gestured to when you were
talking about --
A: Her right upper thigh.

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This detailed, emotional retelling of Jane’s entire disclosure strayed far
beyond what was necessary to explain the aunt’s actions after learning of the
allegations. See Bercier, 506 F.3d at 632 (holding that the only effect of a
physician’s recitation of the victim’s entire sexual assault disclosure was to bolster
the alleged victim’s trial testimony).
It is plain from a review of the record, including the court’s rulings, that the
court intended the aunt’s testimony to be limited to explaining why the aunt
convened a family meeting and why the family called a tribal child protection
worker. When defense counsel failed to object when the testimony devolved far
beyond the court’s anticipated nonhearsay purpose of explaining why the action was
taken, and the government failed to control its witness in line with the court’s rulings,
the district court was placed in a difficult position—either interject and risk drawing
more attention to the evidence or remain silent and allow the evidence in with all its
attendant harm. While we recognize the problematic position counsel put the district
court in, allowing the aunt to entirely restate Jane’s hearsay statements and describe
Jane’s emotional demeanor went far enough beyond the court’s stated nonhearsay
purpose to constitute a clear abuse of the court’s discretion. See id. (noting a district
court abuses its discretion when it permits hearsay testimony that does not fall within
a Rule 803 exception).
2. The Grandmother’s Testimony About Sarah’s Statements
The grandmother’s testimony has the same overreach as the aunt’s testimony.
As with the aunt’s testimony, the district court instructed the jury that Sarah’s
statement was being received not for its truth, but for the jurors to assess credibility
and “to understand what this witness did with the information and how this led to an
investigation.” The grandmother not only recounted Sarah’s disclosure that
Mousseaux had sex with her, but she offered details about Sarah’s emotional state,
both before and after the disclosure. Sarah’s grandmother testified:

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Q: How was [Sarah] behaving during that second family
meeting, if you remember?
A: She was pretty well. She was quiet. She was crying. And at
two times there she ran off hysterically crying.
* * *
Q: And did she tell you about something that had happened to
her?
A: Yes.
Q: What did she say to you?
DEFENSE COUNSEL: Objection. Hearsay.
GOVERNMENT COUNSEL: Not offered for the truth, Your
Honor.
THE COURT: All right. Again, you cannot take this testimony
for the truth of the matter asserted but rather to understand what this
witness did with the information and how this led to an investigation.
It can also be taken to -- if it’s inconsistent with [Sarah]’s testimony,
can be taken on her credibility. So go ahead.
GOVERNMENT COUNSEL: Thank you, Your Honor.
Q: So, [grandmother], when you and [Sarah] were in the house
together, what did she say to you about what happened between her and
Shane?
A: She -- when I came out of the restroom, she was sitting there,
and I -- I was standing by her, because she was crying, and she had said
-- she calls me Mom also. So she said, “Mom, I have to tell you
something.” So I said, “Okay.” And I sat down beside her, and I was
hugging her. And she looked at me, and she said, “Mom, he had sex
with me.”

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Q: So, [grandmother], based on that information, what did you
do?
A: I hugged her, and I -- she was -- she started crying, and so I
was consoling her, you know, told her everything was going to be okay
and that we were going to, you know, take care -- everything was going
to be okay.
Q: And based in part on what [Sarah] told and you what [Jane]
had also told, did the family report this?
A: Yes.
Allowing the grandmother to testify that Sarah disclosed sexual contact,
which led her to take actions fell within the court’s ruling and is consistent with our
precedent, but the additional details offered by the grandmother impermissibly go to
the core of the charged offenses and created a genuine risk of improper witness
bolstering. While some level of detail is unavoidable to explain why subsequent
actions were taken, the extensive secondhand recounting of Sarah’s emotional state
and the grandmother’s responses went well beyond the court’s ruling and is
inconsistent with this Court’s precedent. See Bercier, 506 F.3d at 632–33. As with
the aunt’s testimony, when the grandmother’s testimony went far afield, neither the
government nor defense counsel interjected or attempted to control the testimony.
Once again, the court was left with a conundrum as to how to moderate the improper
evidence without drawing more attention to it. But, because it is the district court’s
duty to keep improper testimony from the ears of the jury, the failure to limit the
evidence when it went beyond explaining the origin for the investigation was a clear
abuse of discretion on the part of the district court. See id.
C. Relief Warranted for Evidentiary Errors
The improper admission of hearsay testimony does not warrant reversal unless
it affected the defendant’s substantial rights or substantially influenced the verdict.
See Fed. R. Crim. P. 52(a); Lasley, 917 F.3d at 665.

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Here, the district court specifically and repeatedly instructed the jurors to limit
their consideration of the aunt’s and the grandmother’s testimony. The court
instructed the jury that the testimony may be considered only to explain why and
how the family reacted to the reports of Mousseaux’s improper conduct. Jurors are
presumed to follow the court’s instructions, United States v. Thomas, 877 F.3d 1077,
1079 (8th Cir. 2017), and the limiting instructions given by the district court in this
case lessened the risk that the jury accepted the out-of-court statements as conclusive
proof of Mousseaux’s guilt. See United States v. Bettelyoun, 892 F.2d 744, 746 (8th
Cir. 1989).
More importantly, Sarah, Jane, and Anne each testified and were subject to
vigorous cross-examination. Their testimony rendered the adult relatives’ retellings
cumulative. “The admission of hearsay evidence that is cumulative of earlier trial
testimony by the declarant or cumulative of other hearsay evidence to which no
objection was made is not likely to influence the jury and is therefore harmless
error.” United States v. Sully, 114 F.4th 677, 686 (8th Cir. 2024) (citation omitted);
see Mackey, 83 F.4th at 676 (finding no prejudice where improper hearsay testimony
repeated what the victims told the jury). As is typical in cases of this nature, the
credibility of the victims was the focal point at trial. The jurors had the opportunity
to hear the children’s testimony, resolve inconsistencies, and assess credibility. The
secondhand accounts from the children’s aunt and grandmother were cumulative of
other testimony and their admission was harmless. See United States v. DeMarce,
564 F.3d 989, 997–98 (8th Cir. 2009) (concluding the admission of statements that
served to bolster a witness’s credibility by repeating testimony already in the record
constituted harmless error); see also Bettelyoun, 892 F.2d at 746 (determining the
admission of hearsay testimony that the jury was already aware of was harmless).
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
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