United States of America v. Tina Sully

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3635
___________________________
United States of America
Plaintiff - Appellee
v.
Tina Sully
Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota
____________
Submitted: June 14, 2024
Filed: August 19, 2024
____________
Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.
____________
GRASZ, Circuit Judge.
Tina Sully, a foster parent for the Yankton Sioux Tribe, was charged with
various counts of abusing her three adopted children, who resided with her on tribal

-- 1 of 13 --

-2-
land.1 After her first trial resulted in a mistrial, the district court2 scheduled her
second trial to begin eighteen days after the first one ended. Sully twice moved for
a continuance, but the district court denied both motions. During the second trial,
Sully objected to the government’s introduction of several out-of-court statements,
which the district court admitted under Federal Rules of Evidence 803(2) and 807.
Sully appeals the denial of her motion to continue and the district court’s evidentiary
rulings. We affirm.
I. Background
On Sunday, May 23, 2021, 13-year-old C.S. ran away from home. She
trekked two miles to her neighbors’ house in Wagner, South Dakota, and she hid
behind a tree located at the end of their driveway. C.S. appeared dirty, hungry, and
scared. When the neighbors—Arlis Kafka and her husband— asked if she needed
help, she said yes, and they called the sheriff’s office. C.S. told the Kafkas that her
adoptive mother, Sully, beat her with a belt and a coat hanger and that she had not
had any food since Friday, May 21. She showed her neighbors the marks and scars
on her body. Eventually, a deputy sheriff and social workers from the Yankton
Sioux Tribe arrived, and they transported C.S. to a hospital.
An investigation into C.S.’s allegations resulted in law enforcement
discovering Sully may also have, in the past, abused two of her other foster children,
D.F.H. and G.S. A grand jury indicted Sully on ten counts: two counts of assault
with a dangerous weapon (Counts 1–2) and one count of felony child abuse (Count
3) as to minor victim C.S.; four counts of assault with a dangerous weapon (Counts
1 The district court had original jurisdiction over the criminal charges under 18
U.S.C. § 1153, which extends jurisdiction to United States courts for certain offenses
committed by an “Indian” within “Indian country.”
2 The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.

-- 2 of 13 --

-3-
4–7) and one count of felony child abuse (Count 8) as to then-minor victim D.F.H.;
and one count of assault with a dangerous weapon (Count 9) and one count of
abusive sexual contact as to then-minor victim G.S. (Count 10).
A jury trial commenced in August 2023 and ended with the district court3
declaring a mistrial because the jury could not reach a unanimous verdict. The case
was then assigned to a new judge, and the district court scheduled a second trial to
begin on September 12, 2023—eighteen days after the end of the first trial. On
August 31, Sully moved to continue the trial, explaining counsel’s private practice
case load conflicted with the proposed trial date and two defense witnesses were
unavailable for those dates.
During a telephonic hearing, Sully’s counsel further explained that the
scheduled trial date would force her to reschedule private-practice depositions she
“already rescheduled once,” and that defense witnesses would be unavailable. One
of the witnesses was Candy Jeanotte, one of the original social workers who worked
with Sully and her family. The district court explained it had multiple trials
scheduled between September and late November and, because he is “on senior
status,” he is “not here for trials after Thanksgiving.” The only other available dates
were four days during the week of September 26, 2023, but the government
explained that particular week would not work because one of its experts and a
victim would be unavailable to testify.
Ultimately, the district court denied Sully’s motion to continue. First, it did
not think conflicting depositions justified a continuance. Second, prospective
witness Jeanotte lived in North Dakota, so she could not be subpoenaed to appear;
because she had already missed testifying at the first trial, there was no guarantee
she would appear even if the trial date was moved. The district court suggested the
parties should make “best efforts to . . . secure the testimony of that witness,” such
3 The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.

-- 3 of 13 --

-4-
as by taking her deposition before trial. Otherwise, the district court stated it would
allow Jeanotte to testify at trial out of order, if necessary. Sully’s counsel was unable
to secure Jeanotte’s testimony.
Sully renewed her motion for continuance, with defense counsel insisting
Jeanotte was a “critical witness” whose absence would be “prejudicial.”
Furthermore, counsel stated she “wanted to provide psychological testimony from a
psychological test done of [C.S.]” The district court denied the renewed motion,
finding the set trial date was better for the child victims because testifying is “a
traumatic thing for them” and Sully made “no specific showing that the defense . . .
is prejudiced by going ahead with the trial at this point.”
With the continuance denied, trial began on September 12. Because Sully’s
evidentiary challenges only pertain to her convictions for the counts relating to C.S.,
we need only detail what evidence the government produced at trial as to those
counts. First, we detail the introduced evidence that Sully does not challenge on
appeal.
Arlis Kafka, one of the neighbors who found C.S., testified to what C.S. told
her about why she ran away. Kafka testified C.S. appeared dirty and nervous, and
she was shaking. Without any prompting, C.S. detailed how Sully beat her with a
belt and a coat hanger, withheld food from her, and made her sleep on the laundry
room floor. Kafka explained that C.S., without prompting, showed scars on her
abdomen from prior beatings and a mark on her leg from where Sully had kicked
her.
One of the responding social workers, Kassandra Traversie, testified C.S. was
visibly scared and clearly bruised. C.S. showed Traversie the bruise on her leg, so
the social workers decided to take her to the hospital. Traversie noted C.S., a 13-
year-old girl, was wearing a pull-up diaper. After the visit to the hospital, Traversie
took C.S. back to Sully’s house to retrieve her clothes and to remove her other

-- 4 of 13 --

-5-
siblings. Traversie testified C.S. held her hand the whole time they were in the
house, and C.S. hid behind her.
Ryan Kocer, a nurse practitioner, testified to examining C.S. when she visited
the emergency room. He recalled that C.S. was frightened and she wore ill-fitting
clothes and a “diaper.” C.S. reported not having anything to eat for a few days.
Kocer noticed dozens of bruises and scars—some superficial, some deep—all over
her body. One scar on her head was so deep that hair no longer grew around it; it
appeared to be an injury for which C.S. did not receive medical attention. The marks
he saw were consistent with C.S.’s report of repeated physical abuse.
Dr. Nancy Free, a pediatrician, also testified to medically examining C.S.
when she visited Child’s Voice, a children’s advocacy center that provides medical
evaluations for mistreated children. Dr. Free also noted bruises, scars, and marks all
over C.S.’s body. Several of the marks were consistent with being struck with a belt
or other looped object or being pinched. C.S. also had “terrible dental decay. Her
molars were just really starting to rot.” Finally, C.S. reported that Sully would tell
her “that she didn’t love [C.S.], that no one could love [C.S.]” C.S. also told Dr.
Free that Sully would threaten to kill her. Dr. Free’s overall impression was that
C.S. was a victim of physical and emotional abuse, as well as medical and dental
neglect.
C.S. also testified at trial. She testified she ran away because Sully would hit
her with a clothes hanger and a belt. On more than one occasion, Sully would
withhold food from C.S. for several days in a row. C.S. testified Sully would throw
small rocks at her, kick her, stomp on her, hit her with a plastic tube from a breathing
machine, pinch her, pull her hair and shake her head, and choke her. Sully made
C.S. wear pull-ups because she thought C.S. “didn’t need to wear underwear.” Sully
would not let C.S. go to school, and she made C.S. sleep on the laundry room floor.
Sully told C.S. she hated her, nobody would ever love her, she would send her away,
C.S. was worthless, and Sully would kill her if she did not stop crying. The jury also

-- 5 of 13 --

-6-
heard from D.F.H., who testified Sully abused him when he was a child, in ways
similar to C.S.
Now, we detail the testimony Sully challenges on appeal. The government
introduced hearsay testimony from four witnesses, which the district court
admitted—over Sully’s objections—under two separate hearsay exceptions.
Two witnesses’ testimony was admitted under the excited-utterance hearsay
exception. See Fed. R. Evid. 803(2). First, social worker Traversie testified that
when she accompanied C.S. to Sully’s house, C.S. pointed toward a door in the
hallway and told Traversie “that’s where they kept her sometimes.” C.S. also
pointed to a black belt hanging on the wall in the laundry room and told Traversie
“they hit her with that sometimes.” Second, Charles Mix County sheriff’s deputy
Janet Budavich, who was dispatched to the Kafka house the evening of May 23,
2021, testified that C.S. told her she had not eaten in five days, she had to sleep on
the floor, and Sully beat her with a belt and a clothes hanger and kicked her.
Two witnesses’ testimony was admitted under the residual hearsay exception.
See Fed. R. Evid. 807. First, Yankton Sioux Police Department criminal investigator
DesaRae Gravatt, who interviewed C.S. at the hospital the evening of May 23, 2021,
testified that C.S. told her how she received the injuries. The district court also
allowed Gravatt’s bodycam footage of the interview, in which C.S. detailed more of
the abuse she suffered, to be admitted into evidence. Second, Child’s Voice child
forensic interviewer Amanda Liebl, who interviewed C.S. before Dr. Free examined
her, testified that C.S. said Sully beat her with objects, stomped on her, choked her,
kicked her, and threatened her. A video recording of Liebl’s interview was also
admitted into evidence.
In the end, the jury convicted Sully of all counts. Sully moved for a new trial,
arguing, in part, the denial of her motions to continue warranted such relief. The

-- 6 of 13 --

-7-
district court rejected that as a basis for a new trial, and Sully appeals that
determination.4
II. Discussion
We first address Sully’s contention the denial of her motion to continue was
an abuse of discretion entitling her to a new trial before addressing her hearsay
objections.
A. Motion to Continue
“We review a denial of a motion for continuance for abuse of discretion.”
United States v. Vesey, 330 F.3d 1070, 1071 (8th Cir. 2003). As we have explained:
District courts are afforded broad discretion when ruling on requests for
continuances. Continuances generally are not favored and should be
granted only when the party requesting one has shown a compelling
reason. We will reverse a district court’s decision to deny a motion for
a continuance only if the court abused its discretion and the moving
party was prejudiced by the denial.
United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir. 1996) (citations omitted);
accord United States v. Keepseagle, 30 F.4th 802, 815 (8th Cir. 2022). Similarly,
we review the district court’s denial of a motion for a new trial for abuse of
discretion. Vesey, 330 F.3d at 1072. “A district court may grant a defendant’s
motion for a new trial if the interests of justice so require.” Id. (citing Fed. R. Crim.
P. 33).
4 Sully does not appeal any evidentiary issues pertaining to her convictions for
abuse toward D.F.H., Counts 4 to 7. As to G.S., the district court, based on newly
discovered evidence, granted Sully’s post-trial motion for a retrial on Count 9 and
to acquit on Count 10, and those rulings are not before us.

-- 7 of 13 --

-8-
To warrant a new trial, Sully must also show the denial prejudiced her defense.
She raises two claims of prejudice. First, she generally complains that counsel did
not have “reasonable time necessary to fully reevaluate and reconsider additional
case strategy before the retrial.” Second, and more specifically, Sully claims the
continuance would have allowed her to secure the testimony of an unspecified
psychologist and of the out-of-state social worker. Neither argument is availing.
If a party asserts prejudice from the denial of a continuance, she must point to
“evidence in the record indicating that the court’s ruling affected [her] attorney’s
representation . . . .” United States v. Keiser, 578 F.3d 897, 902 (8th Cir. 2009).
Sully cites Vesey, claiming her initial mistrial “is proof enough that the government’s
case was not airtight, making it all the more important that [the defendant] have
adequate time to procure and present testimony to rebut the additional evidence
. . . .” Vesey, 330 F.3d at 1073.
But this case is distinguishable from Vesey. There, the government introduced
testimony from “additional witnesses regarding transactions distinct from those that
were testified at the first trial.” Id. at 1072. In moving for a new trial, Vesey
provided “affidavits from three prospective defense witnesses that contradicted
testimony offered by the government’s witnesses . . . .” Id. But in this case, the
government did not introduce new witnesses between the first and second trials, and
Sully did not explain how her new witnesses’ testimony would affect the trial’s
outcome. She asserts extra time would have allowed her, for example, to “seek a
court order for the testimony of the psychologist that completed the psychological
evaluation of C.S.,” but as the district court reasoned, Sully had “lots of opportunity”
to interview the psychologist in the first trial, but she chose not to.
As for Jeanotte, Sully failed to explain what Jeanotte would testify about if
available. Unlike the defendant in Vesey, Sully did not get an affidavit from Jeanotte
explaining what her testimony would be and how it would bolster Sully’s defense.
Even now on appeal, Sully has failed to develop how any of Jeanotte’s testimony
would have made a difference. Instead, Jeanotte’s testimony only amounts to

-- 8 of 13 --

-9-
cumulative, impeachment evidence against the victim, C.S. And because Jeanotte
was an out-of-state witness, there was no guarantee she would attend a rescheduled
trial date even if one was set.
Moreover, Jeanotte was scheduled to testify at the first trial, but Sully never
called Jeanotte to testify. Sully’s counsel admitted this decision was a tactical one;
counsel did not want to “enflame” the jurors by making them wait four to five hours
for Jeanotte’s testimony. Though the “materiality of a witness” will depend on a
case’s specific context, Perry v. Lockhart, 871 F.2d 1384, 1387 (8th Cir. 1989), Sully
hardly shows Jeanotte was a “material” witness to her defense. After all, Sully
thought Jeanotte’s testimony was not worth the risk of irritating the jurors by
extending the trial. See id. (holding defense witnesses were not material when “their
testimony either was not inconsistent with that of the State’s witnesses, or, . . . , was
merely a weaker repetition of the testimony of witnesses who did appear at trial”).
Overall, Sully does not explain what additional arguments, evidence, or
witnesses she would have discovered had the continuance been granted. She thus
fails to establish the requisite prejudice to warrant a new trial. See Cotroneo, 89
F.3d at 514 (holding there was no prejudice when counsel claimed to require the
presence of “individuals and witnesses” at a hearing but the “record contain[ed] no
suggestion as to who those persons were, [or] why their testimony was necessary”).
B. Hearsay
We now turn to Sully’s challenges to the admission of certain hearsay
statements. We review evidentiary rulings for abuse of discretion. United States v.
Lasley, 917 F.3d 661, 665 (8th Cir. 2019). Even if the hearsay was erroneously
admitted, we will not reverse if it is harmless error; that is, “if the error did not
influence or had only a very slight influence on the verdict.” Id. at 665 (cleaned up)
(quoting United States v. Lomas, 826 F.3d 1097, 1105 (8th Cir. 2016)).

-- 9 of 13 --

-10-
“Hearsay—an out of court statement offered in evidence to prove the truth of
the matter asserted—is generally not admissible.” United States v. Graves, 756 F.3d
602, 604 (8th Cir. 2014) (citing Fed. R. Evid. 801, 802). Sully challenges the
application of two hearsay exceptions that allowed the introduction of hearsay
statements from four witnesses. First, she challenges the admission of Traversie’s
and Budavich’s hearsay testimony, which the district court admitted under the
excited utterance exception. The exception allows for the introduction of “[a]
statement relating to a startling event or condition, made while the declarant was
under the stress of excitement that it caused,” Fed. R. Evid. 803(2), the idea being
that statements made while a declarant is under the “stress or shock of an event” are
more trustworthy than statements made “when the declarant has the opportunity for
reflection and deliberation.” Graves, 756 F.3d at 605. In deciding whether a
declarant remained “under the stress of excitement” while making a statement, we
consider:
[1] the lapse of time between the startling event and the statement, [2]
whether the statement was made in response to an inquiry, [3] the age
of the declarant, [4] the physical and mental condition of the declarant,
[5] the characteristics of the event, and [6] the subject matter of the
statement.
Id. (alterations in original) (quoting United States v. Clemmons, 461 F.3d 1057, 1061
(8th Cir. 2006)).
Looking at the record, C.S. spoke with Budavich about 45 minutes after Arlis
Kafka called the sheriff’s office, at which point C.S. had walked two miles from
Sully’s house, which also took about 45 minutes. Before Budavich arrived, C.S. was
composed enough to eat a sandwich and drink some sports drink provided by Kafka.
Once Budavich arrived, C.S. explained the abuse she suffered. As for Traversie,
C.S. spoke with her while back at Sully’s house, after C.S. had already been to the
hospital and had had a medical evaluation. Because C.S. appeared nervous while
she was there, the district court held the excited utterance exception applied to C.S.’s

-- 10 of 13 --

-11-
statements, even though roughly four hours had passed since C.S. first arrived at the
Kafkas’ house.
Second, as to the testimony admitted under the residual exception, Gravatt
and Liebl both testified to what C.S. said when they asked her questions about abuse,
and the district court also admitted video recordings of their interviews. Rule 807
allows for the introduction of hearsay statements, even if the statement is not
admissible under Rule 803 or 804, if:
(1) the statement is supported by sufficient guarantees of
trustworthiness—after considering the totality of circumstances under
which it was made and evidence, if any, corroborating the statement;
and
(2) it is more probative on the point for which it is offered than any
other evidence that the proponent can obtain through reasonable efforts.
Fed. R. Evid. 807(a). Rule 807(b) also requires the proponent of the statement to
provide “reasonable notice” of its intent to introduce Rule 807 evidence, which the
government provided to Sully.
Rule 807 concerns the possibility of evidentiary scenarios not envisioned by
the other hearsay exceptions. See United States v. Peneaux, 432 F.3d 882, 893 (8th
Cir. 2005). Rule 807:
permits the admission of 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. Bruguier, 961 F.3d 1031, 1033 (8th Cir. 2020).

-- 11 of 13 --

-12-
“Congress intended the residual hearsay exception to ‘be used very rarely, and
only in exceptional circumstances[.]’” Peneaux, 432 F.3d at 893 (quoting S. Rep.
No. 93-1277, at 20 (1974), as reprinted in 1974 U.S.C.C.A.N. 7051, 7066). We
noted that “exceptional circumstances generally exist when a child sexual abuse
victim relates the details of the abusive events to an adult.” Id. (collecting cases).
Though we have readily supported the admission of the hearsay of a child sexual
abuse victim, whether Rule 807 readily supports the admission of the hearsay of a
child physical abuse victim (when there is no allegation of sexual abuse) is less
developed in our case law.
Here, Sully asserts C.S.’s hearsay statements lack any indication of
“trustworthiness.” Generally, we weigh several factors in evaluating
trustworthiness, including:
the training and experience of the interviewer; whether the child was
interviewed using open-ended questions; the age of the child and
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.
United States v. Thunder Horse, 370 F.3d 745, 748 (8th Cir. 2004). The district
court did not give an in-depth trustworthiness explanation, concluding the statements
had “sufficient guarantees of trustworthiness[.]” Rather, it stated C.S.’s hearsay was
“probative on the point to which it’s offered more so than any other evidence . . . .
that is probably the best evidence that there is of . . . what the victim at that time
reported.”
Though we note Sully’s arguments, we need not address whether the
admission of any of the challenged hearsay statements was erroneous because
assuming there was error, it was harmless. For non-constitutional errors5 in
5 Sully contends the admission of the hearsay cannot be harmless because it
violated the Sixth Amendment’s Confrontation Clause. But there is no

-- 12 of 13 --

-13-
admitting hearsay testimony, an error is harmless “if we are confident that the error
did not influence the jury or had only a very slight effect on the verdict.” United
States v. Stoney End of Horn, 829 F.3d 681, 686 (8th Cir. 2016).
“Harmless-error analysis necessarily requires a prediction about what would
have occurred if the record were different.” Id. at 687. Here, even if all the
challenged hearsay was excluded, the record still “shows a convincing case” against
Sully. See id. at 686. The challenged statements are cumulative of other admitted,
unchallenged statements detailing C.S.’s abuse, such as the testimony from Arlis
Kafka, Dr. Free, nurse practitioner Kocer, the non-hearsay testimony of Traversie,
and most importantly, C.S.’s own courtroom testimony. Likewise, the jury heard
testimony from D.F.H., who also testified that, similar to C.S., Sully physically
abused him. “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. Londondio, 420 F.3d 777, 789 (8th Cir. 2005). This is an
instance where we conclude the cumulative evidence would only have had a “slight
effect” on the verdict, if any, and we will not reverse on that basis.
III. Conclusion
We affirm the district court.
______________________________
Confrontation Clause violation when the witness “who makes testimonial statements
admitted against a defendant [is] present at trial for cross-examination . . . .” Giles
v. California, 554 U.S. 353, 358 (2008); see also United States v. Bordeaux, 400
F.3d 548, 555 (8th Cir. 2005) (“The confrontation clause bars the admission at trial
of the testimonial statements of a witness who is absent from trial[.]” (emphasis
added)). C.S. testified at trial, and Sully had the opportunity to cross-examine her
on any of her out-of-court statements.

-- 13 of 13 --