United States of America v. Jerry Matthew Chasing Hawk

United States Court of Appeals
For the Eighth Circuit
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No. 12-1193
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jerry Matthew Chasing Hawk
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: October 19, 2012
Filed: December 6, 2013
[Unpublished]
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Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Jerry Chasing Hawk was convicted by a jury of sexual abuse of an
incapacitated person in violation of 18 U.S.C. § 2242(2). He appeals his conviction
on multiple grounds, including that the jury instructions erroneously omitted a mens
rea requirement of proof of his knowledge of the victim's incapacity. The recent

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decision of our en banc court in United States v. Bruguier, No. 11-3634 (8th Cir. Nov.
5, 2013) reversed our prior interpretation of the statute under which he was convicted.
We therefore now reverse and remand to the district court.
Following a night of drinking, Chasing Hawk was in a hotel room with his
girlfriend's daughter, Rheta Fischer, and Fischer's brother. Rheta Fischer testified that
she laid down on the bed on her stomach and fell asleep fully clothed. She awoke to
pain in her anal area, and turned around to see Chasing Hawk with his penis inside
her anus. Her pants and underwear had been removed. Fischer immediately got up,
woke her brother, and told him what had happened. The brother was heavily
intoxicated and left the room with Chasing Hawk to go to breakfast. Fischer then
called the police and reported the sexual assault.
Police promptly arrested Chasing Hawk, and he denied having any sexual
contact with Fischer. Once Chasing Hawk's skin cell DNA was found inside Fischer's
underwear, however, he admitted to having had sex with her. He claimed that Fischer
had initiated a consensual encounter with him in which he had unsuccessfully
attempted to have vaginal intercourse with her. Chasing Hawk was found guilty of
sexual abuse of an incapacitated person in violation of 18 U.S.C. § 2242(2), and
sentenced to 132 months.
Chasing Hawk appeals his conviction, arguing that the district court erred by
not requiring the government to prove beyond a reasonable doubt his knowledge of
Fischer's incapacity at the time of the sexual assault, admitting evidence that Chasing
Hawk had committed a prior sexual assault, excluding impeachment evidence that the
victim had made a prior rape allegation, and adding a vulnerable victim enhancement
at sentencing. Chasing Hawk proposed jury instructions containing as an element
"[t]hat Jerry Chasing Hawk knew that Rheta Fischer was incapable of appraising the
nature of the conduct and was physically incapable of declining participation in and
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communicating unwillingness to engage in [the] sexual act." The district court did
not include this element in its instructions to the jury. Our review is de novo "when
the refusal of a proffered instruction simultaneously denies a legal defense." United
States v. Young, 613 F.3d 735, 744.
Our decision in United States v. Bruguier, No. 11-3634, slip op. at 6–7,
clarifies that 18 U.S.C. § 2242(2) contains mens rea elements under which the
defendant must have knowledge not only that he was engaging in a sexual act, but
also that the victim was incapacitated. Because Chasing Hawk requested and was
denied jury instructions that would have required the jury to find that he had
knowledge of Fischer's incapacity, he was also denied his potential legal defense that
he did not know she was incapacitated at the time of his sexual act. See id. at 15.
We therefore reverse Chasing Hawk's conviction for sexual abuse under 18
U.S.C. § 2242(2) and remand the case for further proceedings consistent with
Bruguier.
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