United States of America v. Eugene Hollow Horn Bear

United States Court of Appeals
For the Eighth Circuit
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No. 24-3394
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United States of America
Plaintiff - Appellee
v.
Eugene Hollow Horn Bear
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Central
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Submitted: June 13, 2025
Filed: July 23, 2025
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.
Eugene Hollow Horn Bear was convicted by a jury of two counts of abusive
sexual contact, in violation of 18 U.S.C. §§ 1153, 2244, and 2246(3). In addition,
he pled guilty to one count of failure to register as a sex offender, in violation of 18
U.S.C. § 2250(a), the Sex Offender Registration and Notification Act (“SORNA”).

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The district court1 sentenced him to a term of 108 months’ imprisonment, followed
by a 5-year term of supervised release. Hollow Horn Bear raises three arguments on
appeal: (1) the evidence was insufficient to support his convictions for abusive
sexual contact; (2) the two convictions violate the Double Jeopardy Clause; and (3)
his sentence is substantively unreasonable. We affirm.
I. BACKGROUND
In 1989, Eugene Hollow Horn Bear, a South Dakota resident, was convicted
of abusive sexual contact with a minor. Pursuant to SORNA, he was required to
register as a sex offender in each jurisdiction where he resides and update the
registration within three business days of any “change of name, residence,
employment, or student status.” 34 U.S.C. § 20913(a), (c). In May 2022, Hollow
Horn Bear was convicted of failure to register as a sex offender and was sentenced
to 24 months’ imprisonment. He began a 5-year term of supervised release on
February 6, 2023. Upon release, Hollow Horn Bear registered an address in
Rosebud, South Dakota, with the Rosebud Sioux Tribe Sex Offender Registration
Office. Hollow Horn Bear left his Rosebud address on July 5, 2023, following a
dispute with the homeowner. He failed to update his registration as required.
On the evening of July 20, 2023, Hollow Horn Bear visited Mission, South
Dakota. There, he ran into his stepsister, B.B.H., and her adopted son, Lawrence
Red Tomahawk. The trio spent the next few hours drinking alcohol before retiring
to an abandoned carwash to sleep. B.B.H. awoke during the night to find Hollow
Horn Bear kneeling beside her and touching her breasts and vagina. She pushed him
away and called out to Red Tomahawk for help. Red Tomahawk woke up and saw
Hollow Horn Bear’s hand under B.B.H.’s pants. The next morning, B.B.H. and Red
Tomahawk reported the incident to tribal law enforcement. Because B.B.H. had
bathed in the clothing she wore that night, no physical evidence was collected.
1 The Honorable Eric C. Schulte, United States District Judge for the District
of South Dakota.

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However, both she and Red Tomahawk provided statements to investigators
regarding the incident.
In August 2023, a federal grand jury indicted Hollow Horn Bear on four
counts: sexual abuse of a person incapable of consent, in violation of 18 U.S.C.
§§ 1153, 2242(2), and 2246(2)(C) (Count 1); abusive sexual contact, in violation of
18 U.S.C. §§ 1153, 2244(a)(2), and 2246(3) (Count 2); abusive sexual contact, in
violation of 18 U.S.C. §§ 1153, 2244(b), and 2246(3) (Count 3); and failure to
register as a sex offender, in violation of SORNA (Count 4). A superseding
indictment added Count 5, commission of a crime of violence while failing to
register as a sex offender, in violation of SORNA. The district court severed the
SORNA counts and Hollow Horn Bear proceeded to trial on Counts 1 through 3.
Prior to trial, after Hollow Horn Bear requested new counsel, his appointed
counsel moved to withdraw from his case. The district court granted the motion to
withdraw and assigned new trial counsel. Hollow Horn Bear’s new counsel moved
for a continuance on April 15, 2024, to “investigate the case, review discovery and
properly prepare the defense.” The district court granted the continuance the
following day, setting the pretrial motion deadline for August 6, 2024, and
scheduling trial for August 20, 2024. Hollow Horn Bear did not file any pretrial
motions challenging the superseding indictment.
At trial, B.B.H testified she awoke to Hollow Horn Bear’s fingers “in [her]
uterus” and his other hand touching her breasts. She testified that she called out to
her adopted son for help, who then chased Hollow Horn Bear away from the
carwash. On cross-examination, she acknowledged it was difficult to remember
certain details of the night because she had consumed a large quantity of vodka. Red
Tomahawk also testified he heard B.B.H.’s call for help and observed Hollow Horn
Bear’s right hand “down in her pants.” The jury acquitted Hollow Horn Bear of
Count 1 (sexual abuse of a person incapable of consent) and convicted him on
Counts 2 and 3 (abusive sexual contact). He later pled guilty to Count 4 (failure to

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register) pursuant to a plea agreement, which provided that Count 5 (commission of
a crime of violence while failing to register) would be dismissed.
At sentencing, the district court calculated a total offense level of 23 and a
criminal history category of VI, resulting in an advisory Guidelines range of 92 to
115 months’ imprisonment. Hollow Horn Bear requested a downward variance or
departure based on his age and health conditions, including congestive heart failure.
He also cited homelessness, unemployment, and limited financial resources as
contributing factors to his failure to register. The district court acknowledged these
mitigating factors and sentenced him to 36 months on Count 2 (abusive sexual
contact), 24 months on Count 3 (abusive sexual contact), and 108 months on Count
4 (failure to register), with all terms to run concurrently and concurrent with a
separate revocation sentence, for a total term of 108 months’ imprisonment. The
court also imposed 5 years’ supervised release on each count, to run concurrently.
Hollow Horn Bear appeals his convictions for abusive sexual contact and his
sentence.
II. DISCUSSION
A. Sufficiency of the Evidence
We review de novo whether the evidence was sufficient to support the
convictions, viewing the record in the light most favorable to the verdict and drawing
all reasonable inferences in favor of the jury’s findings. United States v. White, 962
F.3d 1052, 1055–56 (8th Cir. 2020).
Hollow Horn Bear argues the evidence was insufficient to support his
convictions because the government relied on the testimony of two intoxicated
witnesses and presented no forensic evidence. However, credibility determinations
rest squarely with the jury and are “well-nigh unreviewable” on appeal. United
States v. Johnson, 39 F.4th 1047, 1052 (8th Cir. 2022) (citation omitted). Although
B.B.H. and Red Tomahawk admitted drinking heavily, their accounts aligned:

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B.B.H. testified that Hollow Horn Bear digitally penetrated her and touched her
breasts, and Red Tomahawk confirmed he saw Hollow Horn Bear’s hand inside
B.B.H.’s pants. The jury was entitled to evaluate any credibility issues in light of
the witnesses’ intoxication and weigh their testimony with the other evidence
admitted at trial. The absence of physical evidence is not fatal, as a conviction may
be sustained based on a victim’s testimony alone. See United States v. Seibel, 712
F.3d 1229, 1237 (8th Cir. 2013).
B. Multiplicity
The Double Jeopardy Clause of the Fifth Amendment prohibits multiple
punishments for the same offense. United States v. Bennett, 44 F.3d 1364, 1368 (8th
Cir. 1995). An indictment violates this prohibition if “the two offenses charged are
in law and fact the same offense.” Id.; see also United States v. Chipps, 410 F.3d
438, 447 (8th Cir. 2005). A defendant must raise a claim of multiplicity in a timely
pretrial motion. Fed. R. Crim. P. 12(b)(3)(B)(ii). If it is not raised before trial, the
claim is waived absent a showing of good cause. Fed. R. Crim. P. 12(c)(3); United
States v. Anderson, 783 F.3d 727, 740–41 (8th Cir. 2015). We consider whether an
indictment is multiplicitous in violation of the Double Jeopardy Clause de novo.
United States v. Taylor, 44 F.4th 779, 795 (8th Cir. 2022).
Because Hollow Horn Bear did not file a pretrial motion challenging the
allegedly multiplicitous counts, he must establish good cause for his failure to do so.
See Fed. R. Crim. P. 12(c)(3). Hollow Horn Bear asserts good cause exists because
his prior counsel was deficient and his new counsel did not have sufficient
opportunity to file a challenge. However, after new counsel was appointed on April
10, 2024, the district court granted a continuance and rescheduled trial for August
20, 2024. Under the revised scheduling order, the deadline for pretrial motions was
extended to August 6, 2024. Hollow Horn Bear neither filed a Rule 12 motion nor
requested additional time to do so. These circumstances do not amount to good
cause because “appointment of new counsel is not good cause for filing an untimely

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motion.” United States v. Dabney, 42 F.4th 984, 989 (8th Cir. 2022). That principle
applies with equal, if not greater, force here, where no motion was filed at all.
Even if we assumed good cause exists, Hollow Horn Bear’s double jeopardy
claim fails on the merits. Where a defendant is charged with multiple violations of
the same statute, the relevant inquiry is whether Congress intended the underlying
acts to constitute distinct units of prosecution. United States v. Platter, 514 F.3d
782, 785 (8th Cir. 2008). In United States v. Two Elk, we considered a similar
provision—aggravated sexual abuse under 18 U.S.C. § 2241(c)—and concluded that
it defines a “separate-act” offense. 536 F.3d 890, 899 (8th Cir. 2008). We
determined § 2241(c) criminalizes “a sexual act,” not a course of conduct or a series
of acts, and that the disjunctive structure of § 2246(2)’s definitional provision
supports treating each enumerated act as a separate offense. Id.
The same reasoning applies here. Section 2244(a)(2) mirrors § 2241 in its
construction, though it applies to “sexual contact” rather than a “sexual act.”
Likewise, § 2244(b), charged under Count 3, prohibits nonconsensual “sexual
contact.” Neither section references a “course of conduct” or uses the plural form
“contacts.” See United States v. Jennings, 496 F.3d 344, 353 (4th Cir. 2007)
(“Instead of creating a separate scheme for abusive sexual contact in § 2244,
Congress simply repeated the scheme it had laid out for abusive sexual acts in
§§ 2241 through 2243 by incorporating those provisions into § 2244.”). Section
2246(3), which defines “sexual contact,” lists specific forms of contact in the
disjunctive—“the intentional touching . . . of the genitalia, anus, groin, breast, inner
thigh, or buttocks”—reinforcing the conclusion that each enumerated act constitutes
a distinct offense. Read together, these provisions reflect Congress’s intent to treat
discrete sexual contacts as separate criminal acts. Because touching the victim’s
breast and genitalia are distinct violations, “there is no double jeopardy problem” in
this case. See Two Elk, 536 F.3d at 899.

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C. Substantive Reasonableness of the Sentence
We review a district court’s sentence for abuse of discretion. United States v.
Bryant, 606 F.3d 912, 918 (8th Cir. 2010). A district court abuses its discretion if it
(1) fails to consider a relevant sentencing factor; (2) gives significant weight to an
improper or irrelevant factor; or (3) commits a clear error of judgment in weighing
the appropriate factors. United States v. Ali, 799 F.3d 1008, 1033 (8th Cir. 2015).
We presume a sentence within the advisory Guidelines range is substantively
reasonable. United States v. Goodale, 738 F.3d 917, 926 (8th Cir. 2013). The
defendant bears the burden of rebutting that presumption. Id.
Hollow Horn Bear challenges only the substantive reasonableness of his 108-
month sentence for failing to register as a sex offender. He contends his
noncompliance with registration obligations was “somewhat outside of his control.”
He registered in May 2023 and would not have ordinarily been required to update
his registration until August 2023, but he was forced to leave his registered address
on July 5, 2023, after the homeowner assaulted him and he was evicted. In addition
to that complication, Hollow Horn Bear contends he was unemployed, of limited
financial means, and suffering from age-related health issues, all of which prevented
him from complying with his registration requirements.
Hollow Horn Bear raised these mitigating factors at sentencing, and we
presume the district court considered the arguments before it. See United States v.
Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011). After weighing the applicable factors
set forth in 18 U.S.C. § 3553(a), the court emphasized the serious nature of the
offense—a consideration well within its discretion. See United States v. Isler, 983
F.3d 335, 344 (8th Cir. 2020) (noting the district court’s wide latitude in assigning
weight to specific sentencing factors). To establish substantive unreasonableness,
Hollow Horn Bear “must show more than the fact that the district court disagreed
with his view of what weight ought to be accorded certain sentencing factors.”
United States v. Townsend, 617 F.3d 991, 995 (8th Cir. 2010) (per curiam). Hollow
Horn Bear’s disagreement with the sentence imposed or the weight given certain

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factors alone does not warrant reversal of his within-Guidelines sentence. See Isler,
983 F.3d at 344.
III. CONCLUSION
We affirm the judgment and sentence of the district court.
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