No. 19-1007 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

James Robert Dowty

lllllllllllllllllllllDefendant - Appellant ____________

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

Submitted: February 14, 2020 Filed: July 6, 2020 ____________ Before LOKEN, BENTON, and KELLY, Circuit Judges. ____________ KELLY, Circuit Judge.

A jury convicted James Dowty of second-degree murder and discharging a firearm during a crime of violence. These charges arose from a shooting on the Pine Ridge Reservation in South Dakota. Dowty appeals several rulings from the district court.1 Because we find no basis for reversal, we affirm.

I. Background

The grand jury indicted Dowty on one count of second-degree murder in violation of 18 U.S.C. § 1111 and one count of discharging a firearm during the commission of a crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii). The government alleged that, shortly after 3:00 a.m. on July 20, 2016, Dowty shot and killed 14-year-old T.C. while she was walking along a street with three friends: Donovan Youngman, age 19; A.R.C., age 17; and R.O., age 15.

Dowty proceeded to trial, where R.O. was the first to testify. She explained that, shortly after midnight on July 20, 2016, she drank alcohol with T.C., A.R.C., and Youngman. She and T.C. also smoked marijuana and consumed Robitussin. At around 3:00 a.m., the four friends began walking along a street in Pine Ridge. She told the jury, “It wasn’t pitch black. You could see because of the street lights.” As the group walked, R.O. observed someone walking ahead of them wearing red shoes, shorts, and a backpack. R.O. testified that Dowty often wore a backpack. The group made a turn by cutting through a parking lot, and the person ahead turned that direction as well.

R.O. identified James Dowty as the person walking in front of the group. She was “certain” it was him because she saw his face and because she and Dowty are related. As the friends walked, T.C. asked whether the person was Dowty’s brother “Joe Joe,” but R.O. explained it was James because Joe Joe is “smaller.” R.O., however, did not clearly identify Dowty in the courtroom as the person she had seen

1 The Honorable Jeffrey L. Viken, United States District Judge for the District of South Dakota.

-2- that night. She instead testified that one of Dowty’s older Facebook photos, admitted into evidence at trial, depicted the person she saw.

R.O. also testified that Youngman and A.R.C. skipped rocks in Dowty’s direction but did not hit him. This caused Dowty to turn twice towards the group. As he turned the second time, he held a gun in his hands. He fired the gun, striking and ultimately killing T.C. R.O. again confirmed she was “certain” Dowty was the shooter because she recognized his face before he pulled the trigger.

Youngman’s trial testimony was similar to R.O.’s. Before the gunshot, he noticed the shooter wore red, or red and white, shoes; a hat; a black hooded sweatshirt; and a backpack. Youngman recognized the person as Dowty because he had seen him in Pine Ridge. Youngman testified that A.R.C. threw a rock towards Dowty without hitting him. Dowty then turned around twice, the second time shooting T.C. Youngman explained that streetlights were illuminated at the time. He identified Dowty in the courtroom as the shooter.

On cross-exami