United States of America v. Robert Dowty, Sr.

United States Court of Appeals
For the Eighth Circuit
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No. 21-3005
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United States of America
Plaintiff - Appellee
v.
Robert Dowty, Sr.
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: March 17, 2022
Filed: June 14, 2022
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Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Robert Dowty, Sr. was convicted by a jury of aggravated sexual abuse of a
minor, in violation of 18 U.S.C §§ 2241(c) and 1153. Dowty appeals, asserting four
claims of error: (1) the district court1 abused its discretion when it made certain
1 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

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evidentiary rulings; (2) he was deprived of a fair trial due to behavior by members
of the gallery; (3) the evidence was insufficient to sustain the conviction; and (4) the
district court improperly considered prior act evidence for purposes of sentencing.
We affirm.
I. BACKGROUND
During the summer of 2018, Dowty lived in Pine Ridge, South Dakota.
Twelve-year-old A.S. lived across the street from Dowty in the home of her
grandmother, Lynn Mousseaux. Dowty and A.S. are cousins. A.S.’s father, brother,
sister, grandfather, cousin, and two uncles also resided in Mousseaux’s home. A.S.
and her siblings often played with two of their cousins who lived at Dowty’s house.
The children spent time between the homes of Mousseaux and Dowty, riding go-
carts, playing video games, or swimming in the pool at Dowty’s house.
In September 2018, A.S. told an Indian Health Service nurse that she had been
sexually assaulted by Dowty. A.S. was unable to remember the date of the assault,
reporting only that it occurred during the prior summer. The report prompted an
investigation, which eventually led to Dowty’s arrest. Dowty was charged with
aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(A), and
1153. A superceding indictment added a count of aggravated sexual abuse of a
minor, in violation of 18 U.S.C. §§ 2241(c) and 1153. Prior to trial, the court found
the two counts were multiplicitous and dismissed without prejudice the charge
brought under § 2241(a)(1).
The case proceeded to a jury trial. A.S. testified, describing the circumstances
of the assault, the conditions of Dowty’s bedroom where it occurred, and her actions
afterward. A.S. testified the assault left her shaken and afraid. She reported there
was blood in her underwear after the assault, but she threw them in the garbage to
hide the blood from Mousseaux. A.S explained that she did not tell anyone in her
family about the assault because she was afraid. A.S. also told the jury that several
years earlier, when she was seven or eight years old, Dowty rubbed her vagina

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through her pants at a cousin’s birthday party at Dowty’s home. On cross-
examination, A.S. admitted that life at Mousseaux’s house was sometimes
tumultuous, reporting drugs, alcohol, and fighting among the adults, and that police
were occasionally called to the house.
FBI Special Agent Matt Weber testified about the investigation and
introduced photographs from the search of Dowty’s home. Brandi Tonkel told the
jury about her forensic interview of A.S. and typical characteristics of children who
are victims of sexual abuse. The jury also heard testimony from sisters Brandy
Williams and Jessica Lund about prior instances of sexual abuse by Dowty, who was
in a relationship with their mother when they were young. Williams testified that
Dowty sexually assaulted her beginning when she was four years old and continuing
until she was six years old. Lund testified that Dowty sexually assaulted her when
she was four or five years old, and again when she was between 11 and 13 years old.
Lund reported the assaults to the FBI when she was 17 years old.
Dowty also testified, denying each of the sexual assault allegations. He
opined that A.S. was trying to get attention because of problems in her home life.
Dowty believed A.S. was upset because her father had taken her cell phone away on
September 4, 2018, the day before she reported the sexual assault. Dowty denied
the incident described by A.S. could have happened for a couple of reasons. First,
Dowty said he was living in California at the time of the alleged incident. Second,
he claimed that because of a partial knee replacement on June 5, 2018, he had staples
in his knee on July 1 that would have prevented him from doing what A.S. alleged.
During Dowty’s cross-examination, the district court admonished members of the
gallery, stating: “Now if you’re going to be in the courtroom, no head-shaking, no -
- you know, indications of any kind. This jury has decisions to make about the
evidence, and they don’t need to be influenced or otherwise by anybody who’s
present in the courtroom.” The trial continued without further incident.
The jury convicted Dowty of aggravated sexual abuse of a minor. Prior to
sentencing, Dowty objected to application of a five-level enhancement under

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U.S.S.G. § 4B1.5(b)(1) for a pattern of activity involving prohibited sexual conduct
based on Dowty’s sexual abuse of A.S. when she was seven or eight years old. With
a total offense level of 43, Dowty’s Sentencing Guidelines range was life. The
district court imposed a life sentence.
II. DISCUSSION
A. Evidentiary Rulings
“Evidentiary rulings are reviewed for abuse of discretion, and we afford
deference to the district judge ‘who saw and heard the evidence.’” United States v.
Davidson, 449 F.3d 849, 853 (8th Cir. 2006) (quoting United States v. Ziesman, 409
F.3d 941, 951 (8th Cir. 2005)).
1. Prior Acts of Child Molestation
When the defendant is accused of child molestation, evidence of any other
acts of child molestation is admissible “on any matter to which it is relevant.” Fed.
R. Evid. 414(a). “If relevant, such evidence is admissible unless its probative value
is ‘substantially outweighed’ by one or more of the factors enumerated in Rule 403,
including ‘the danger of unfair prejudice.’” United States v. Gabe, 237 F.3d 954,
959 (8th Cir. 2001) (quoting United States v. LeCompte, 131 F.3d 767, 769 (8th Cir.
1997)). Evidence is probative if it involves “substantially similar offenses as the
crimes charged.” United States v. Medicine Horn, 447 F.3d 620, 623 (8th Cir. 2006).
Dowty argues the district court erred by allowing Williams and Lund to testify
because the prior acts were too dissimilar from the charged act, they were too remote
in time, and they were too prejudicial. The district court determined that this
evidence was probative as compared to the charged conduct because of similarities
between the methods of abuse and the age of the victims. The court also concluded
that the probative value of the evidence was not substantially outweighed by the
Rule 403 factors. We have upheld the admission of Rule 414 evidence as probative

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when the method of contact and the age of the victim were similar. See United States
v. Crow Eagle, 705 F.3d 325, 327-28 (8th Cir. 2013). As to remoteness, “[w]hen
Rule 414 was enacted, Congress expressly rejected imposing any time limit on prior
sex offense evidence.” Gabe, 237 F.3d at 960. The district court took steps to ensure
the evidence was not unfairly prejudicial by considering the cumulative effect and
denying the proffered testimonies of two additional women. While some amount of
prejudice is to be expected when evidence is admitted under Rule 414, it did not rise
to the level of unfair prejudice in this case. See Gabe, 237 F.3d at 959-60. We find
no clear prejudicial abuse of discretion in admitting the testimony under Rule 414.
2. Opinion Testimony
Dowty next challenges the district court’s refusal to let him ask Mousseaux
on cross-examination whether Mousseaux told A.S.’s treating physician that she did
not believe the assault occurred. A witness’s credibility may be attacked by
testimony in the form of an opinion regarding the witness’s character for truthfulness
or untruthfulness. See Fed. R. Evid. 608(a). “[O]pinion testimony about the
truthfulness or untruthfulness of a witness may be excluded if it amounts to no more
than a conclusory observation or if the opinions were not more than bare assertions.”
United States v. Turning Bear, 357 F.3d 730, 734 (8th Cir. 2004) (cleaned up).
Whether the testimony amounted to “more than bare assertions” is a question left to
the trial court’s discretion. Id.
Whether Mousseaux initially believed the assault occurred had no direct
bearing on A.S.’s character for untruthfulness. Mousseaux made a conclusory
statement, without any knowledge of the incident in question or the details of the
allegations. The district court did not abuse its discretion in excluding this line of
cross-examination.

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B. Gallery Behavior
We generally review claims of constitutional error de novo, but where the
defendant failed to object at trial, we review for plain error. United States v. Pirani,
406 F.3d 543, 549 (8th Cir. 2005) (en banc). “In reviewing for plain error, we have
the discretion to reverse the district court if the defendant shows (1) an error, (2) that
was plain, (3) affects substantial rights, and (4) the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” United States v. Fast
Horse, 747 F.3d 1040, 1042 (8th Cir. 2014) (cleaned up).
During cross-examination of Dowty, a member of the gallery caught the
district court’s attention. The district court addressed the behavior swiftly and
succinctly. Defense counsel raised no questions or objections during trial and
Dowty’s testimony continued without incident. The weight of the evidence was
overwhelming, and there is no indication that any further problems or concerns
occurred. No jurors complained or had questions about the incident. Without some
indication that Dowty’s substantial rights were affected, or the jury was influenced
by the behavior, Dowty has failed to show plain error.
C. Sufficiency of the Evidence
We review the sufficiency of the evidence de novo, viewing the evidence in
the light most favorable to the verdict and giving the verdict the benefit of all
reasonable inferences. United States v. Fool Bear, 903 F.3d 704, 708 (8th Cir. 2018).
We will reverse a conviction “only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt.” Id. (quoting United States v. Tillman,
765 F.3d 831, 833 (8th Cir. 2014)). “[I]t is for the jury, not a reviewing court, to
evaluate the credibility of witnesses and to weigh their testimony.” United States v.
Never Misses A Shot, 781 F.3d 1017, 1025 (8th Cir. 2015) (quoting United States
v. Mallen, 843 F.2d 1096, 1099 (8th Cir. 1988)).

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At trial, A.S. explained the details of the sexual assault, her decision not to tell
her family, and the reason why she threw away her underwear. We have noted that
“a victim’s testimony alone can be sufficient to prove aggravated sexual abuse.”
United States v. DeCoteau, 630 F.3d 1091, 1097 (8th Cir. 2011).
In addition to A.S.’s testimony, Special Agent Weber explained to the jury his
investigation, and Tonkel recited the content of her forensic interview with A.S. The
jury’s attention was drawn to differences between A.S.’s memory of Dowty’s
bedroom and the photographs taken during the investigation. It was for the jury to
weigh the evidence and make credibility determinations. Viewing the evidence in
the light most favorable to the verdict as we must, there is more than sufficient
evidence to support the conviction.
D. Sentencing
We review a district court’s application of the Sentencing Guidelines de novo
and its factual findings for clear error. United States v. Ayres, 929 F.3d 581, 583
(8th Cir. 2019). Section 4B1.5(b)(1) of the Sentencing Guidelines provides for a
five-level enhancement where, as relevant here, “the defendant engaged in a pattern
of activity involving prohibited sexual conduct.” The commentary explains that a
pattern of activity occurs “if on at least two separate occasions, the defendant
engaged in prohibited sexual conduct with a minor,” without regard to whether the
conduct occurred “during the course of the instant offense” or “resulted in a
conviction.” Id. at comment. n.4(B).
Dowty argues the district court erred by applying § 4B1.5(b)(1) based on the
testimony from A.S. that Dowty touched her vagina over her clothes when she was
seven or eight years old. While Dowty points out that the alleged act never resulted
in a conviction, the commentary states that a conviction is not required. See id.
Dowty also contends the enhancement requires specific findings by the jury, but
“sentencing judges are required to find sentence-enhancing facts only by a
preponderance of the evidence.” United States v. Scott, 448 F.3d 1040, 1043-44

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(8th Cir. 2006). There was sufficient evidence in the record for the district court to
find that Dowty committed a prior act of molestation against A.S. The district court
did not err in applying the enhancement.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is affirmed.
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