Submitted: October 25, 2018
from United States District Court for the District of South
Dakota - Rapid City
WOLLMAN, LOKEN, and ERICKSON, Circuit Judges.
ERICKSON, Circuit Judge.
early morning hours of July 12, 2015, Ferris Brings Plenty
was murdered during a vicious group beating on the Pine Ridge
Reservation in South Dakota. For his role in the beating,
Appellant Calmer Cottier was charged with Second Degree
Murder (or aiding and abetting the same), Conspiracy to
Commit Assault, and Solicitation to Commit a Crime of
Violence. A jury found Cottier guilty of the murder and
conspiracy counts. Cottier was acquitted of the solicitation
count. The district court sentenced Cottier to 210 months'
imprisonment. Cottier raises five issues on appeal: (1) the
sufficiency of the evidence on the second degree murder
count, (2) the court's instruction to the jury on the
elements of second degree murder, (3) improper vouching for
the credibility of witnesses by the prosecution, (4) the
admission of testimony concerning a sexual encounter that
took place in the hours leading up to the murder, and (5) the
calculation of his criminal history. We affirm.
recite the facts in the light most favorable to the
jury's verdict." United States v. Hemsher,
893 F.3d 525, 528 (8th Cir. 2018) (quoting United States
v. Daniel, 887 F.3d 350, 353 (8th Cir. 2018)). On July
12, 2015, Cottier, Steven Steele, Terry Goings III, and Billy
Bob Bluebird were in Bluebird's backyard in Pine Ridge,
South Dakota. Some of the men were gang members, belonging to
the Juggalos, a division of the Bloods. Aaron Little Bear and
Fred Quiver, members of a competing gang, the Tre Tre Crips,
were drinking in the adjacent Quiver backyard. Little Bear
argued with Cottier, and the two groups exchanged
the argument ended without a physical confrontation, Cottier
and his group went to his grandmother Rose Cottier's
("Rose") house. There they were joined by
Cottier's brothers Jerome Warrior and Albert Cottier
("Albert"). Angry that he got "punked
out" when Little Bear argued with him and called him and
his group names, Cottier suggested that the group go back to
the Quiver residence to fight Little Bear. As the men walked
to the Quiver residence, they discussed weapons, Goings gave
his machete to Steele, and Goings found what the members
described as "a stick" or a "rake
handle." The group split into two to bum-rush the
Quivers-Steele, Bluebird, and Warrior on one side of the
residence and Cottier, Goings, and Albert on the other side.
they arrived at the Quiver residence around 3:00 a.m., they
did not encounter Little Bear. Instead, Brings Plenty was
sleeping in a tent in the backyard. When Brings Plenty
emerged from the tent and tried running away, Cottier threw a
cinder block at his head, which struck him in the face and
caused him to stumble.Warrior tackled Brings Plenty to the
ground. A vicious group beating ensued. Warrior and Cottier
(and possibly Albert and Bluebird) kicked Brings Plenty
several times while Goings hit him repeatedly with the stick
and Steele struck him multiple times in the back of the head
with the machete. Unsurprisingly, Brings Plenty died from his
numerous blunt force trauma injuries.
Sufficiency of the Evidence
first address the issue of sufficiency of the evidence to
sustain Cottier's conviction for aiding and abetting
second degree murder. We review the "sufficiency of the
evidence de novo, viewing the evidence in the light most
favorable to the government, with all reasonable inferences
and credibility determinations made in support of the
jury's verdict." United States v. Kelly,
436 F.3d 992, 996 (8th Cir. 2006) (citing United States
v. Dieken, 432 F.3d 906, 909-10 (8th Cir. 2006)). We
will overturn the verdict only if no reasonable jury could
have found Cottier guilty beyond a reasonable doubt.
United States v. Skoda, 705 F.3d 834, 839 (8th Cir.
2013) (citing United States v. Gray, 700 F.3d 377,
378 (8th Cir. 2012)).
convict Cottier, the jury had to find that: (1) he unlawfully
killed Ferris Brings Plenty, or aided and abetted the
killing; (2) he acted with malice aforethought; and (3) he is
an Indian and the offense took place in Indian country. 18
U.S.C. §§ 1111 and 2. See also United States v.
Lame, 716 F.2d 515, 518 (8th Cir. 1983) (listing the
elements of second degree murder committed in Indian
country). Malice may be shown "by evidence of conduct
which is 'reckless and wanton, and a gross deviation from
a reasonable standard of care, of such a nature that [the
factfinder] is warranted in inferring that defendant was
aware of a serious risk of death or serious bodily
harm.'" United States v. French, 719 F.3d
1002, 1008 (8th Cir. 2013) (alteration in original) (quoting
United States v. Black Elk, 579 F.2d 49, 51 (8th
Cir. 1978)). "An aiding and abetting conviction requires
the government to prove a defendant took an affirmative act
to further the underlying criminal offense, with the intent
of facilitating the offense." United States v.
Borders, 829 F.3d 558, 565 (8th Cir. 2016) (citing
Rosemond v. United States, 572 U.S. 65, 71 (2014)).
contends that no reasonable factfinder could have found that
Cottier threw a cinder block at Brings Plenty based on the
testimony of Goings. Cottier argues that Goings's
testimony was not credible because his memory of the events
was affected by his drunkenness and he testified pursuant to
a cooperation agreement. "[W]e must resolve issues of
credibility in favor of the verdict, and we decline to invade
the province of the jury as [Cottier] would have us do."
United States v. McCarthy, 97 F.3d 1562, 1571 (8th
Cir. 1996) (first alteration in original) (quoting United
States v. Fregoso, 60 F.3d 1314, 1323 (8th Cir. 1995)).
Goings's story was not so "internally inconsistent
or implausible on its face" that the jury was not
entitled to credit his testimony. United States v.
Mann, 701 F.3d 274, 298 (8th Cir. 2012) (quoting
Moore v. Novak, 146 F.3d 531, 535 (8th Cir. 1998)).
we agreed that Goings's testimony about the cinder block
was not credible as a matter of law, the jury easily still
had before it ample evidence to find Cottier guilty of aiding
and abetting second degree murder. Every witness who was able
to identify the individuals involved testified about
Cottier's active participation in the vicious group
beating that killed Brings Plenty. Each witness recalled that
after the group entered the Quiver yard with the intent to
fight, Cottier repeatedly kicked Brings Plenty as others
kicked Brings Plenty and struck him with a stick and machete
repeatedly. As Cottier himself admitted at trial, it
"wasn't a fair fight." This evidence is more
than sufficient to prove beyond a reasonable doubt that
Brings Plenty was ...