152150P.pdf   07/15/2016  United States  v.  Stoney End of Horn
   U.S. Court of Appeals Case No:  15-2150
                          and No:  15-2151
   U.S. District Court for the District of South Dakota - Aberdeen   
   [PUBLISHED] [Colloton, Author, with Smith, Circuit Judge, and Gritzner, 
   District Judge] 
   Criminal case - Criminal law and sentencing. Evidence was sufficient to 
   support defendant's conviction for sexual abuse of a minor; with respect 
   to defendant's conviction for assault causing serious bodily injury to his 
   girlfriend, it was error under Rule 807 to admit a hearsay statement from 
   the former husband of the victim in which he stated the victim had told 
   him defendant was the person who committed the assault; to be admissible 
   under the residual hearsay exception to the rule, the statement must have 
   circumstantial guarantees of trustworthiness equivalent to the enumerated 
   hearsay exceptions, and the court failed to articulate a theory as to why 
   the statement to the victim's former spouse about an assault by her 
   current partner was inherently trustworthy; while the admission of the 
   statement was error, the record as a whole, excluding the testimony, was 
   sufficient to support defendant's conviction for assault resulting in 
   serious bodily injury; withdrawal of objection to a sentencing enhancement 
   waived any argument regarding its imposition; the district court did not 
   abuse its discretion in relying on Guidelines Sec. 4A1.3 and defendant's 
   criminal history as a factor supporting an upward departure; nor did the 
   court err in relying of Guidelines Sec. 5K2.1 and the eventual death of 
   the victim as a factor supporting an upward departure.