## Facts

- Kermit Oris Bear Stops lived periodically with T.M. and her son, P.M., and later with their younger son, B.B., moving between Fort Yates, North Dakota and the Cheyenne River Indian Reservation in South Dakota.
- P.M. disclosed to his grandmother that Bear Stops had sexually abused him; T.M. confronted Bear Stops and left with B.B.
- After leaving, B.B. disclosed that Bear Stops had also sexually abused him.
- A federal indictment charged:
  - Count I: aggravated sexual abuse of P.M. (penile-anal penetration) on or about April 3, 1988.
  - Count II: aggravated sexual abuse of B.B. (penile-anal penetration).
  - Count III: abusive sexual contact with B.B. (intentional touching of specified areas with sexual intent).
- At trial on Count I, the government relied on testimony that P.M. exhibited behavior consistent with sexual abuse and introduced P.M.’s bloody underwear as the only physical evidence of abuse.
- P.M. had also been sexually assaulted by three older boys, in the same manner alleged against Bear Stops, within the same general time period.
- The defense sought to introduce detailed, uncontroverted evidence of that prior assault to explain P.M.’s symptoms and the bloody underwear, but the district court excluded the details under Rules 412 and 403.
- A jury convicted Bear Stops on all three counts after a seven-day trial.

## Issues

1. Whether excluding detailed, uncontroverted evidence that P.M. was sexually assaulted by three older boys in the same manner and time frame as Count I improperly prevented the jury from considering an alternative explanation for key prosecution evidence.
2. Whether exclusion of that evidence under Federal Rules of Evidence 412 and 403 was an abuse of discretion and violated the Sixth Amendment Confrontation Clause and due process.
3. Whether any evidentiary errors or the denial of a mistrial required reversal of the convictions on Counts II and III involving B.B.

## Decision

- The Eighth Circuit reversed the conviction on Count I and remanded.
- The court held that excluding detailed evidence of P.M.’s prior assault created a serious risk the jury would attribute P.M.’s symptoms and physical evidence solely to Bear Stops, violating the Confrontation Clause and due process.
- The court affirmed the convictions on Counts II and III, concluding the error related to P.M. did not undermine the reliability of the verdicts concerning B.B.

## Legal Principles

- Rules 412 and 403 cannot be applied to bar highly probative, uncontroverted evidence that provides a plausible alternative source for a complainant’s physical or behavioral indicators of sexual abuse when that evidence is central to the defense.
- A defendant’s Sixth Amendment confrontation rights and due process right to a fair trial require a meaningful opportunity to present evidence critical to challenging the prosecution’s theory, including causation of alleged injuries or symptoms.
- When an evidentiary error affects only one count and does not undermine the reliability of verdicts on other counts supported by independent evidence, reversal may be limited to the affected count.

## Conclusion

The court reversed Count I because excluding uncontroverted alternate-source evidence about P.M.’s prior assault improperly prevented effective confrontation and a fair defense where the government’s case depended on behavioral testimony and a single item of physical evidence; it affirmed Counts II and III because the error did not affect the reliability of the convictions involving B.B.


United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993)