United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1138
                        ___________________________

                            United States of America

                                       Plaintiff - Appellee

                                        v.

                              Chavez Spotted Horse

                                     Defendant - Appellant
                                  ____________

                    Appeal from United States District Court
                   for the District of South Dakota - Aberdeen
                                  ____________

                          Submitted: December 14, 2018
                            Filed: February 20, 2019
                                 ____________

Before LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District
Judge.
                           ____________

ERICKSON, Circuit Judge.

      In October 2017, a jury found Chavez Spotted Horse guilty of three counts of
Child Abuse, in violation of 18 U.S.C. § 1153 and SDCL § 26-10-1, as well as three


      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
counts of Assault with a Dangerous Weapon, in violation of 18 U.S.C. §§ 1153 and
113(a)(3). Spotted Horse appeals, asserting that the district court2 erred in four ways:
(1) by defining “dangerous weapon” too broadly in its jury instructions; (2) in refusing
to instruct the jury on reasonable use of disciplinary force by a guardian, which is a
defense to child abuse under South Dakota law; (3) by excluding evidence of his
reason for disciplining his niece P.M.; and (4) by denying his subsequent motion for
a mistrial. We affirm.

      I.     Background

       Between October 2014 and December 2016, P.M. and her older brother C.S.H.
lived with their uncle Spotted Horse in Little Eagle, South Dakota. Little Eagle is
located on the Standing Rock Indian Reservation. The children had volunteered to
live with Spotted Horse because their grandmother and legal guardian could no longer
handle the number of grandchildren living in her house.

      On December 1, 2016, the staff at Little Eagle Day School reported to the
Bureau of Indian Affairs that they had noticed facial bruises and scratches consistent
with child abuse on P.M., a fifth grader at the school. Special Agent Sheri Salazar
responded. Agent Salazar interviewed the girl and examined her injuries. The agent
also observed “several abrasions and contusions to her back in different stages of
healing,” and bruises on her arms, hands, shoulders, and legs.

      Agent Salazar then took P.M. to Indian Health Services in Fort Yates, North
Dakota, where P.M. was examined by a pediatrician, Dr. Sara Jumping Eagle. Dr.
Jumping Eagle observed that P.M. had “numerous bruises [and] contusions” at
“various stages of healing throughout her entire body”—specifically mentioning


      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

                                          -2-
injures to P.M.’s left ear, both sides of her face, one of her hands, and her back, thighs,
and upper arms. Suspecting abuse, Dr. Jumping Eagle referred P.M. to Sanford
Hospital in Fargo, North Dakota, to see another pediatrician and have additional tests
done to rule out a possible brain injury. Dr. Jumping Eagle also recommended that
P.M. be monitored because “as the bruising healed it could also go into her
bloodstream and affect her kidneys.” Finally, Dr. Jumping Eagle recommended a
follow-up appointment because of a finding on one of P.M.’s X-rays.

       P.M. told investigators that Spotted Horse hit her with four different objects on
three separate days during the past week. On November 27, 2016, Spotted Horse
confronted P.M., accusing her of improper behavior with boys at school. When P.M.
refused to answer his questions, Spotted Horse beat her with a plastic spoon. The next
day, Spotted Horse resumed his interrogation of P.M. about her conduct with boys.
This time he beat her across the back with a wooden back scratcher until it broke.
Spotted Horse then commanded C.S.H. to find something else that he could use to
discipline P.M. C.S.H. delayed, hoping that Spotted Horse would relent, but when
commanded again, C.S.H. reluctantly returned with a plastic blind wand. Spotted
Horse struck P.M. numerous times across the back with the blind wand as she
screamed, cried, and begged him to stop. Unsatisfied with P.M.’s answers, the
questioning resumed two days later, on November 30. When P.M. once again refused
to provide answers that Spotted Horse deemed appropriate, he became enraged,
grabbed a plastic hanger, and beat her across the back until the hanger broke.

       On January 19, 2017, Spotted Horse was indicted on three counts of child abuse
and three counts of assault with a dangerous weapon for striking P.M. with the spoon,
blind wand, and hanger.3 Prior to trial, Spotted Horse filed a notice of his intent to
introduce evidence of his motive for administering the discipline to P.M. because he


      3
       Spotted Horse was not charged for his conduct involving the wooden back
scratcher.

                                           -3-
believed that the motive “was a basis for Defendant to reasonably believe it was
necessary to discipline her in that manner.” Spotted Horse noted that the case was not
a case covered by Federal Rule of Evidence 412 but that he was giving notice pursuant
to the rule to avoid any later claims by the United States. The specific evidence that
Spotted Horse sought to introduce was testimony “that he was informed that P.M. was
kissing an older boy and letting [the boy] touch her inappropriately or sexually . . . to
explain why [Spotted Horse] disciplined her.” He also filed a supplemental Rule 412
notice seeking to introduce testimony that “P.M. told [him] that she was sexually
abused while in a foster home in Missouri before she moved to South Dakota.”

       The district court took up the notices in the final pretrial conference on October
16, 2017, and after a brief discussion ruled the testimony mentioned in the
supplemental notice inadmissible. The government sought clarification of the court’s
ruling especially related to the original Rule 412 notice. The court advised that some
of the conduct described in the original notice was admissible, noting: “[T]he fact that
he thought that she was hanging around with too many boys or something of that
nature or kissing a boy or something, that would be [properly] subject to discipline,
perhaps.”

        The case came on for trial the next day. At the conclusion of C.S.H.’s
testimony, the court held a bench conference about testimony related to P.M.’s
behavior with boys at school. The prosecution and defense each indicated their
“impression that we were going to be allowed to get into the fact that the defendant
believed that she may have been kissing or inappropriately contacting older boys.”
During the bench conference, the court clarified its ruling, directing, “But when you
get into the question of whether or not this child allowed some boys to sexually touch
her, to molest her, to commit a crime, that’s barred by Rule 412, in my opinion,
unless, of course, its exclusion would violate the constitutional rights of the
defendant.” Defense counsel moved for a mistrial “because this is a ruling, middle of
trial, contrary to what the ruling was yesterday. And that . . . now affects how I can

                                          -4-
present my defense.” The court denied the motion for a mistrial and reiterated, “I’m
telling you that you’re not going to ask her whether she was sexually – whether she
has been sexually touched by anybody. . . . If she is kissing boys under the bleachers,
that’s fine.” Defense counsel renewed the motion during a chambers conference at
the end of the day, and the court again denied the motion.

        Spotted Horse elected to testify on his own behalf. In that testimony, he
admitted to hitting P.M. with the objects but explained that he believed the discipline
was necessary. Specifically Spotted Horse testified that he was merely disciplining
P.M. for misbehaving and that he resorted to physical discipline only as a last resort
after lesser forms of discipline, such as verbal correction, grounding, and extra chores,
proved ineffective. Spotted Horse testified that he was concerned about P.M.
bothering and kissing boys at school and that he was trying to stop her behavior from
escalating into something more serious. When Spotted Horse attempted to testify
about P.M. engaging in sexual touching with boys at school, the court prohibited him
from doing so and struck his answer.

       On October 17, 2017, the district court held an instructions conference. Prior
to trial, Spotted Horse had submitted proposed jury instructions. Defendant’s
Proposed Jury Instruction No. 13 stated in relevant part, “A ‘dangerous weapon’
means an object used in a manner likely to endanger life or inflict serious bodily
harm.” Spotted Horse objected to the court’s Jury Instruction No. 18, which read,
“The phrase ‘dangerous weapon,’ as used in these instructions means any object
capable of being readily used by one person to inflict bodily injury upon another
person.” The court overruled his objection.

       Spotted Horse also requested that the court add Defendant’s Proposed
Instruction No. 14 to the court’s instructions. The proposed instruction, based on the
statutory defense to child abuse provided in SDCL § 22-18-5, stated:



                                          -5-
      As it pertains to the charges of Child Abuse, it is a defense if the
      Defendant used reasonable force against P.M. for restraint or correction.
      The use of force against a child is not unlawful if committed by a parent,
      an authorized agent of any parent, or by any guardian, in the exercise of
      a lawful authority to restrain or correct the child and if restraint or
      correction has been rendered necessary by the misconduct of the child,
      or by the child’s refusal to obey the lawful command of such parent or
      an authorized agent or guardian, and the force used is reasonable in
      manner and moderate in degree.

The court overruled Spotted Horse’s requested instruction, explaining:

      The South Dakota child abuse statute, which is SDCL 26-10-1, deals
      with possible defenses to charges of child abuse if the defendant used
      reasonable force, and it refers to “a parent or the authorized agent of any
      parent.” Mr. Spotted Horse is neither one of those. And then “or by any
      guardian.” He is not the guardian. And South Dakota law defines a
      “guardian” as “one appointed by the Court to be responsible for the
      personal affairs of a minor or protected person, but excludes one who is
      merely a guardian ad litem.” That’s SDCL 29A-5-102.

      “Guardian” is a term of art. It’s a legal term, and it’s not up to the jury
      to decide what the law is. That’s my job. And I’m ruling that Mr.
      Spotted Horse had no more authority to touch this child than I did. The
      fact that the child was living with him has no legal significance.

       The jury found Spotted Horse guilty on all six counts. On January 4, 2018, the
district court sentenced Spotted Horse to concurrent terms of 76 months’
imprisonment on each count to be followed by three years of supervised release.4 This
timely appeal followed.



      4
       The court ordered the sentence in this case to be served consecutive to the
sentence imposed in South Dakota District Court Case No.1:17-cr-10013, Eighth
Circuit Court of Appeals No. 18-1139.

                                         -6-
      II.    Discussion

             A.     Assault with a Dangerous Weapon Instruction

       Spotted Horse contends the district court defined “dangerous weapon” too
broadly in its jury instructions, “allowing the jury to convict him based on his use of
unusually innocuous items.” “We review a district court’s formulation of jury
instructions for an abuse of discretion and its interpretation of law de novo.” United
States v. Farah, 

, 614 (8th Cir. 2018) (citing United States v. Cornelison,

, 626 (8th Cir. 2013)). We will not reverse if the instructional error is
harmless. 

States v. Dvorak, 

, 1024 (8th Cir. 2010)).

        Spotted Horse argues the district court was bound under the prior panel rule to
use the more restrictive definition of “dangerous weapon” that he requested. See
Mader v. United States, 

, 800 (8th Cir. 2011) (quoting T.L. ex rel.
Ingram v. United States, 

, 960 (8th Cir. 2006)) (“[W]hen faced with
conflicting panel opinions, the earliest opinion must be followed ‘as it should have
controlled the subsequent panels that created the conflict.’”). Spotted Horse relies on
our decision, United States v. Hollow, 

(8th Cir. 1984), which he calls
the “first Eighth Circuit opinion to define [‘dangerous weapon’] under § 113.”
Hollow is the first of a line of cases that Spotted Horse erroneously believes are
implicated in this case. He correctly notes that in Hollow we stated, “We have no
difficulty concluding that the knife was used in a manner likely to endanger life or
inflict serious bodily harm.” 

He also correctly notes that subsequent to
Hollow in other sufficiency of the evidence cases, we defined “dangerous weapon”
more broadly as “an object capable of inflicting bodily injury.” See, e.g., United
States v. Farlee, 

, 815 (8th Cir. 2014); United States v. Steele, 

, 699 (8th Cir. 2008); United States v. LeCompte, 

, 952–53 (8th Cir.
1997).



                                         -7-
       What Spotted Horse fails to recognize is that these sufficiency of the evidence
cases did not focus on defining a “dangerous weapon” and our choice of phrasing in
a different context cannot be transplanted into a jury instruction context. The prior
panel rule only applies when panel opinions actually conflict, which is simply not the
case here. See Passmore v. Astrue, 

, 660 (8th Cir. 2008) (citing Brecht
v. Abrahamson, 

, 630–31 (1993)) (“[W]hen an issue is not squarely
addressed in prior case law, we are not bound by precedent through stare decisis.”);
see also Webster v. Fall, 

, 511 (1925) (“Questions which merely lurk in
the record, neither brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.”).

       The district court did not abuse its discretion by defining “dangerous weapon”
as “any object capable of being readily used by one person to inflict bodily injury
upon another person.” The court’s definition fairly tracks the statute, 18 U.S.C. §
113(a)(3), which requires “intent to do bodily harm,” rather than “serious bodily
harm.” The definition is also consistent with the majority of our opinions over the
past two decades involving assault with a dangerous weapon (albeit in the context of
sufficiency of the evidence). That the objects used by Spotted Horse were relatively
innocuous is of no significance. See United States v. Peneaux, 

, 890
(8th Cir. 2005) (internal citations omitted) (noting that “[s]uch innocuous objects as
pool sticks and chairs have been found to constitute dangerous weapons in certain
circumstances”). In any event, any instructional error was harmless, given the nature
and vast extent of P.M.’s injuries.

             B.     Reasonable Use of Disciplinary Force Defense

       Spotted Horse next challenges the district court’s refusal to instruct the jury on
the reasonable use of disciplinary force by a guardian as a defense to the crime of
child abuse. When a district court declines to give a jury instruction setting forth a
legal defense, we review the denial de novo. United States v. Young, 

,

                                          -8-
743 (8th Cir. 2010). “To the extent that the district court’s legal conclusion regarding
whether [Spotted Horse’s] defense theory accurately reflected the law was based on
factual findings, we review for clear error.” 

(quoting United States v.
Benning, 

, 775 (8th Cir. 2001)).

       Spotted Horse’s proposed instruction was based on SDCL § 22-18-5, which
outlines a statutory defense to child abuse charges under South Dakota law:

      To use or attempt to use or offer to use force upon or toward the person
      of another is not unlawful if committed by a parent or the authorized
      agent of any parent, or by any guardian, teacher, or other school official,
      in the exercise of a lawful authority to restrain or correct the child, pupil,
      or ward and if restraint or correction has been rendered necessary by the
      misconduct of the child, pupil, or ward, or by the child’s refusal to obey
      the lawful command of such parent, or authorized agent, guardian,
      teacher, or other school official, and the force used is reasonable in
      manner and moderate in degree.

The court concluded that Spotted Horse did not qualify as a “guardian” for purposes
of the statute because he was not P.M.’s legal guardian. Spotted Horse contends the
court’s conclusion was in error because he was P.M.’s guardian under the ordinary
meaning of that term, which is left undefined by the statute.

       We need not determine whether a de facto guardian who houses and provides
for a child qualifies as a “guardian” for purposes of the statutory defense. Instead, we
conclude that the district court properly denied Spotted Horse’s proffered defense
because no reasonable jury could have found that his use of force was “reasonable in
manner and moderate in degree,” as required by the statute.




                                           -9-
             C.     Exclusion of Sexual Touching Evidence and Denial of Motion
                    for Mistrial

       Spotted Horse also argues the district court erred when it (1) prohibited him
from introducing testimony that P.M. had engaged in sexual touching with boys at
school and (2) denied his subsequent motion for a mistrial. Spotted Horse claims the
court’s ruling violated both his Fifth Amendment due process and Sixth Amendment
confrontation rights. He asserts that the court compounded its constitutional violation
when it revisited its in limine ruling and excluded evidence both parties believed
would be admitted. Generally, “[w]e review a district court’s interpretation and
application of the rules of evidence de novo and its evidentiary rulings for abuse of
discretion.” United States v. Pumpkin Seed, 

, 558 (8th Cir. 2009)
(quoting United States v. Street, 

, 708 (8th Cir. 2008)). We review
whether an evidentiary ruling violates a constitutional right de novo. 

States v. White, 

, 857 (8th Cir. 2009)). We review the denial of
a motion for mistrial for abuse of discretion. United States v. Hollins, 

,
812 (8th Cir. 2005) (citing United States v. Flores, 

, 831 (8th Cir. 1996)).

       We first note that rulings in limine are not etched in stone but are in their very
nature preliminary. As one commentator has noted: “[T]he writers and cases agree
that a definitive ruling [in limine] does not bind the judge; she can alter the ruling in
light of changing circumstances.” C. Wright & K. Graham, 21 FEDERAL PRACTICE
AND PROCEDURE 2D ED. § 5037.16 (2005). This power is inherent in the nature of
rulings in limine, which are specifically designed to streamline the presentation of
evidence and avoid unnecessary mistrials. The decisions, however, are necessarily
made before the relevance and the import of the evidence is fully revealed. If the
evidence changes the basis for the ruling, or even if the judge is simply convinced that
his ruling in limine is erroneous, he retains the authority to change it. Any other rule
would cause unnecessary mistrials rather than avoid them.



                                          -10-
       Moreover, a defendant’s right to introduce evidence in his defense is not
without limitation. United States v. Never Misses A Shot, 

, 1029 (8th
Cir. 2015) (citing Pumpkin 

–60). “These limitations include
‘concerns about harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.’” 

). A court has discretion to exclude evidence under such
limitations “as long as they are not ‘arbitrary or disproportionate to the purposes they
are designed to serve.’” 

).

        Based on our review of the record, we are satisfied that the district court did
not exclude the evidence arbitrarily or hinder Spotted Horse’s ability to present his
defense. Despite the court’s evidentiary rulings, Spotted Horse was able to elicit
evidence about his motivations for disciplining P.M. Spotted Horse, P.M., C.S.H.,
and the children’s aunt and grandmother each testified that Spotted Horse was
concerned that P.M. was bothering, kissing, and “under the bleachers” with boys at
school. Notwithstanding the court’s ruling, C.S.H. briefly mentioned Spotted Horse’s
concerns about a boy touching P.M. at school. Two witnesses testified about Spotted
Horse’s concerns that P.M. would end up like his sexually active and pregnant teenage
cousins if she did not change her behavior with boys. Given this testimony, any more
detailed or graphic description of the touching was unnecessary to explain the reason
for discipline and served no purpose other than to embarrass or diminish P.M. The
district court did not err by excluding testimony about sexual touching nor abuse its
discretion by denying Spotted Horse’s motion for a mistrial.

      III.   Conclusion

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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