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                        as a courtesy to the reader. They are not part of the opinion of the court.

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.