United States of America, Appellee, v. David Wilcox, Appellant.
No. 06-2350
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: December 12, 2006; Filed: May 29, 2007
Appeal from the United States District Court for the District of South Dakota.
A jury convicted David Wilcox of sexual abuse of a minor, D.T., in violation of
I.
The indictment charged that Wilcox committed acts of sexual abuse on August 19, 2005. At that time, D.T. was fourteen years old, and Wilcox was eighteen. D.T. lived with her mother, Melissa, and other family members in a small, two-bedroom cabin in Wanblee, South Dakota, on the Pine Ridge Indian Reservation. Wilcox lived with his grandparents a block away.
Wilcox and Melissa were cousins, and Wilcox was a regular guest at her cabin. Wilcox also knew D.T. fairly well. On the night before the incident that gave rise to the criminal charges, Wilcox visited Melissa‘s cabin, leaving around midnight. At approximately 3:45 a.m., Melissa left for work at a hog farm thirty miles away. Wilcox returned to the cabin shortly thereafter, while D.T. and her younger brother were alone at the residence.
Wilcox testified that he had been out late and was worried about upsetting his grandparents by returning home at such an hour. Thus, he decided to “crash” at
D.T. testified that sometime later she awoke to find Wilcox on top of her. Her pants and panties had been removed. She felt something in the “bottom part” of her body that she used to go to the bathroom, and Wilcox‘s “lower part” made her “hurt inside.” (T. Tr. at 181-82). She pushed Wilcox away, went to the bathroom, wrapped a towel around herself, and turned on hot bath water because she felt “dirty.” (Id. at 182, 300). She then grabbed the telephone and struggled for it with Wilcox, who told her not to call anyone. After several minutes, Wilcox tired of the struggle and left the cabin. D.T. called her mother‘s workplace, but was unable to reach her and left a message. She then called the police, and an officer arrived sometime later.
At trial, Wilcox gave a different account of events, portraying himself as the victim and D.T. as the sexual aggressor. He claimed that he awoke and was surprised to find someone on top of him, her “bottom part” rubbing his “part” for thirty seconds, although he acknowledged that he had an erection and that brief penetration had occurred. Because it was dark, he said he did not realize immediately who was on top of him, but when he discovered it was D.T., he asked her, “What‘s going on?“, and she jumped off. (Id. at 275). He then stood around in shock, but he conceded that he struggled with D.T. in an effort to prevent her from making a telephone call. Eventually, he gave up and returned to his home, where he remained until a police officer arrived. Wilcox has since retracted this story, admitting at sentencing that his trial testimony was a fabrication and that he did sexually abuse D.T. in the early morning hours of August 19, 2005.
Melissa testified that on the morning of August 19, she received word at the hog farm that something was amiss at her home. She called the cabin and spoke to D.T., who told her that Wilcox had been on top of her and had “hurt” her. Melissa then left the farm and rushed back to the cabin, where D.T., D.T.‘s sister, and Melissa‘s mother were waiting for her. Melissa comforted D.T. and took her to the Wanblee clinic, arriving before the clinic had opened. After speaking with a nurse, D.T. and Melissa were transported by ambulance to the Pine Ridge Hospital, where D.T. was examined.
Wilcox was charged with two counts of sexual abuse. Count I charged Wilcox with engaging in a sexual act with D.T. when she was “physically incapable of declining participation in, or communicating unwillingness to engage in, that act,” as prohibited by
At sentencing, the district court initially determined that Wilcox had an offense level of 32 and a criminal history category of I under the United States Sentencing Guidelines. After Wilcox admitted his guilt during the sentencing hearing, however, the court granted him a reduction for acceptance of responsibility. See
II.
Wilcox argues that there was insufficient evidence to convict him. When reviewing this claim, “we view the evidence in the light most favorable to the verdict, and we will overturn a conviction only if no reasonable jury could have concluded that the defendant was guilty beyond a reasonable doubt on each essential element of the charge.” United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir. 2005) (internal quotation omitted).
Wilcox was convicted of sexual abuse under
We disagree. Wilcox‘s own testimony provides sufficient evidence of penetration. During cross-examination, the government specifically asked Wilcox,
“Your penis was in her vagina, correct, thirty seconds?“, and Wilcox responded, “Yes.” (T. Tr. at 299). The government again asked if his penis was “inside it,” and Wilcox said, “It was out, rubbed it, touched it.” (Id.). The prosecution continued, “Then it was inside thirty seconds, correct?“, to which Wilcox replied that it had been “[n]ot that long” but only “about ten, five [seconds].” (Id.). In addition to this clear evidence of penetration, D.T. testified that when she awoke to find Wilcox on top of her, she felt something in the “bottom part” of her body that she used to go to the bathroom and that “it hurt inside” and later bled. (Id. at 181, 188). She claimed that Wilcox‘s “lower part” caused this pain inside her. (Id. at 181-82). Thus, the jury had sufficient evidence to conclude that penetration occurred.
Wilcox further asserts that the jury lacked sufficient evidence to convict him under
Wilcox also contends that the district court erred by denying his challenge to the government‘s peremptory strike of a Hispanic venireperson. Wilcox objected to the strike, and after the government explained its reasons for making the strike, the court overruled Wilcox‘s objection. We review the district court‘s decision for clear error. United States v. Hunt, 372 F.3d 1010, 1012 (8th Cir. 2004).
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that a state prosecutor who uses peremptory challenges to exclude prospective jurors because of
their race violates the defendant‘s right to equal protection of the laws. Id. at 96-98. We
In this case, the district court ruled that even if Wilcox had made a prima facie case of racial discrimination, the government offered sufficient race-neutral reasons to defeat his Batson challenge. Most prominent among these reasons was the prospective juror‘s prior conviction for assault. That a prospective juror has a criminal record is a proper race-neutral reason for striking the venire member. United States v. Crawford, 413 F.3d 873, 875 (8th Cir. 2005). Wilcox made no showing that the government was using the prospective juror‘s conviction as a pretext for purposeful discrimination. The district court‘s finding that the strike was motivated by race-neutral reasons was not clearly erroneous.
III.
Wilcox appeals several evidentiary rulings. We review the district court‘s interpretation and application of the rules of evidence de novo and review the evidentiary rulings for abuse of discretion. United States v. Kenyon, 397 F.3d at 1079.
A.
Wilcox argues that the district court erred by admitting a recording of D.T.‘s telephone call to the police department, in which D.T. stated that “David” had been on top of her. The prosecution played the recording for the jury during the trial, and gave the jury a transcript of the conversation to review while the tape was played. Wilcox contends that the court erred by admitting the tape and allowing the jury to view the transcript, because D.T.‘s recorded statements were impermissible hearsay.
The court admitted the recording as evidence that Wilcox committed the alleged crimes, so D.T.‘s recorded statements were offered “to prove the truth of the matter asserted,” and they are therefore hearsay. See
An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. To determine whether a declarant was still under the “stress of excitement caused by an event” when a statement was made, we consider “the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement.” United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir. 2006). We also examine whether the declarant‘s stress or excitement was continuous from the time of the event until the time of the statements. United States v. Marrowbone, 211 F.3d 452, 455 (8th Cir. 2000). Accordingly, we have admitted evidence of a telephone call made to report a crime shortly after it occurred, where
Here, D.T.‘s testimony, buttressed by Wilcox‘s account of the event, established that she called the police department shortly after the sexual abuse. After the abuse and before making any calls, D.T. picked up a towel, turned on the bath water, and struggled with Wilcox for the telephone. D.T. testified that it took her a “second” to get the towel and a “couple minutes” to turn on the bath water, and that Wilcox prevented her from making a call for roughly ten minutes after she first picked up the telephone. She also described a brief interruption by her little brother, a call to her mother in which she left a message, and a task of looking up the police department‘s telephone number before she made the call. This testimony establishes that D.T. called the police at her first opportunity and that only a brief period of time passed between the abuse and her call to the police. Evidence of her continuous excitement is borne out in the recording of the telephone call itself; Wilcox admits that D.T. was crying and that her voice sounded noticeably upset. (T. Tr. at 302). The district court did not abuse its discretion in concluding that D.T. was still under the stress of excitement caused by the abuse when she made the call, and the evidence was properly admitted.
Wilcox also objected to the use of the transcript of this recording. The transcript was not admitted into evidence, but the court allowed the jury members to review the transcript while the recording was played. So long as transcripts are accurate, they may be used by the jury as an aid in considering a recording. United States v. Delpit, 94 F.3d 1134, 1147-48 (8th Cir. 1996). Wilcox does not contend that the transcript was inaccurate, and the court did not abuse its discretion by allowing the jury to use it.
Wilcox further argues that the district court should have excluded hearsay testimony offered by Melissa, D.T.‘s mother. Melissa testified that on the morning of the abuse, she called home after a co-worker alerted her that something was amiss. She then spoke to D.T., who, while crying, told Melissa that “David” had been on top of D.T. when she awakened and that he had hurt her. Wilcox objected to these
statements as inadmissible hearsay, and the court overruled the objection. We conclude that these statements also were admissible as excited utterances.
Melissa‘s testimony suggests that she spoke with D.T. soon after D.T. called the police department. Mary Forney, who answered D.T.‘s call to the police department, testified that D.T. called the department at roughly 6:45 a.m. Melissa testified that a co-worker informed her that she needed to call home at roughly 6:45 a.m., and that she eventually spoke to D.T. by telephone early in the morning. This timing is consistent with D.T.‘s account, since D.T. testified that she left a message for her mother at the hog farm before calling the police. Melissa then walked a quarter-mile to the farm‘s office and called home, at which time she spoke to D.T. Thus, the district court reasonably could conclude that Melissa‘s testimony places her conversation with D.T. shortly after D.T.‘s call to the police, that D.T.‘s demeanor evidenced stress and excitement, and that no appreciable amount of time had passed since the startling event of sexual abuse. We conclude that the district court did not abuse its discretion by concluding that the statements were admissible as excited utterances.
B.
When cross-examining D.T., Wilcox‘s counsel asked her whether she had a boyfriend at the time of the abuse. D.T. answered that she did not, but this answer was stricken after the court sustained the government‘s objection. Wilcox contends that this ruling was error. His theory is that if D.T. did not have a boyfriend at the time of the abuse, then she might have been infatuated with Wilcox, thereby lending support to Wilcox‘s later testimony that D.T. had initiated the sexual contact.
The asserted relevance of this evidence rests on the supposition that D.T.‘s lack of a boyfriend increased the likelihood that D.T. was infatuated with Wilcox. This supposition has no support in the record. Wilcox himself admitted at trial that D.T. had never shown any interest in him. Because discussion of D.T.‘s dating habits was potentially prejudicial and had little or no probative value, the court did not abuse its discretion in sustaining the objection and striking D.T.‘s response. See
Wilcox also appeals the district court‘s denial of his motion for a continuance. Wilcox had subpoenaed Annette Stands to testify as a witness for the defense. Stands was the ambulance driver who drove D.T. and Melissa from the Wanblee clinic to the Pine Ridge Hospital on the morning of the abuse. According to Wilcox‘s counsel, Stands would have testified that during the drive to the hospital, Melissa was “boisterous, aggressive, loud, and basically assertive in nature, while [D.T.] simply did what her mother told her to do.” (T. Tr. at 358). When Stands failed to appear, Wilcox moved for a continuance, arguing that Stands‘s absence was likely attributable to the weather. The court denied the motion, noting that Wilcox had several days’ warning that a winter storm was coming, that the roads were still passable, and that Wilcox had not requested a material witness warrant.
The district court is afforded broad discretion when ruling on a request for a continuance. Continuances are generally disfavored and should be granted only if the moving party has shown a compelling reason. We will reverse a district court‘s denial of a continuance only if the court abused its discretion and the moving party was prejudiced as a result. United States v. Controneo, 89 F.3d 510, 514 (8th Cir. 1996).
We do not believe that the district court abused its discretion here. Stands‘s testimony was at most marginally relevant to the credibility of D.T. and Melissa. Moreover, during cross examination, Melissa already had acknowledged that she directed events relating to D.T.‘s care after hearing of the abuse, and did not deny that she might have been “confrontational” when doing so. Thus, Stands‘s testimony would have been at least partially cumulative,
Wilcox next contends that the district court impermissibly restricted the scope of his closing argument. A district court has broad discretion to limit the scope of closing arguments and “may prohibit arguments that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury.” Richardson v. Bowersox, 188 F.3d 973, 979-80 (8th Cir. 1999) (internal quotations omitted). We review the district court‘s rulings for abuse of discretion. United States v. Urbina, 431 F.3d 305, 310 (8th Cir. 2005).
During his closing argument, Wilcox‘s counsel rhetorically asked the jury, “Did you hear medical evidence in this case? Was there semen? Was there blood?” (T. Tr. at 419). The government objected, arguing that because the medical evidence substantiating the sexual contact (i.e., Wilcox‘s underwear containing D.T.‘s vaginal fluid) had been suppressed, counsel‘s implication that this evidence did not exist was misleading. The court sustained the objection, stating that counsel cannot refer to suppressed evidence.
We have located no precedent discussing the permissibility of the disputed argument. The exclusionary rule, of course, is designed to place the government in the same position it would have occupied absent police error or misconduct. See Nix v. Williams, 467 U.S. 431, 443 (1984). Wilcox contends that he should be free to argue that the government failed to adduce any medical evidence corroborating D.T.‘s allegation of sexual contact, just as he could do if the government failed to discover the evidence. E.g., United States v. Thompson, 37 F.3d 450, 454 (9th Cir. 1994). The government asserts that while application of the exclusionary rule allows Wilcox to benefit from the absence of the evidence, he should not be permitted to make an argument likely to mislead the jury. Because a jury may presume that the police naturally would have gathered Wilcox‘s underwear, the argument goes, the accused should not be allowed to suggest implicitly that the garment contained no incriminating evidence when everyone knows that it really did. We find it unnecessary to pass on the propriety of the district court‘s ruling, because we conclude that any error in foreclosing this argument was harmless. Wilcox admitted that he made sexual contact with D.T., and that the sexual contact included penetration. We are at a loss to see how Wilcox could have maintained that the absence of medical evidence showing D.T.‘s vaginal fluid on Wilcox‘s underwear undermined the government‘s case, when he admitted both sexual contact and penetration in his own testimony. Wilcox was not prejudiced when the court prevented his counsel from making this argument.
Wilcox also complains that the district court excluded an argument by his counsel that “the third choice” available to the jury – i.e., convicting Wilcox of the lesser included offense of simple assault – had “the least ramifications to this young man.” (Id. at 421-22). After the government objected, Wilcox‘s counsel added, “He has his entire life to lead yet.” (Id. at 422). The court ruled that this argument was impermissible because it referred to the penalty Wilcox faced if convicted.
Details regarding potential punishment were irrelevant to the jury‘s duty to determine whether Wilcox should be convicted of the charged offenses. “To inform a federal jury about a defendant‘s punishment would only introduce improper and confusing considerations before it.” United States v. Thomas, 895 F.2d 1198, 1200 (8th Cir. 1990). Wilcox‘s counsel sought to argue that the defendant should be convicted of simple assault rather than sexual abuse because the assault charge carried a lesser penalty. This argument sought to introduce an irrelevant consideration to the jury, and the district court did not abuse its discretion by sustaining the government‘s objection.
Wilcox also appeals the district court‘s instructions to the jury. The court took two of its instructions directly from the language of
These jury instructions were taken directly from the statutory language, and the court properly applied the governing statutes. Wilcox contends, however, that the statutory provisions themselves are unconstitutional. We hold that they are not. “[S]tatutory rape is a recognized judicial exception to the general principle that
mistake of fact is a defense if it negatives the existence of a mental state essential to the crime charged.” United States v. Juvenile Male, 211 F.3d 1169, 1170-71 (9th Cir. 2000) (per curiam) (internal quotation omitted); see also Morissette v. United States, 342 U.S. 246, 251 n. 8 (1952) (noting that common-law commentators recognized statutory rape as an exception to general principles of criminal intent). Accordingly, federal courts uniformly have rejected claims that the Constitution requires the government to prove that a defendant charged with statutory rape knew that the victim was underage, or that such a defendant has a constitutional right to the defense that he made a reasonable mistake as to the victim‘s age. See Juvenile Male, 211 F.3d at 1170-71; United States v. Ransom, 942 F.2d 775, 777 (10th Cir. 1991); Nelson v. Moriarty, 484 F.2d 1034, 1035-36 (1st Cir. 1973) (per curiam); see also United States v. Mack, 112 F.2d 290, 292 (2d Cir. 1940) (“[I]t is well settled in cases of rape that ignorance that the prosecutrix is below the age of consent is no excuse.“). Seeing no reason to depart from this body of precedent, we likewise reject Wilcox‘s claim that the court‘s jury instructions violated his due process rights or any other constitutional right.
IV.
A.
Wilcox was sentenced to 110 months in prison. Based on an offense level of 32 and criminal history category of I, the court initially calculated his sentencing range under the advisory sentencing guidelines as 121 to 151 months’ imprisonment. The court then granted Wilcox a two-level reduction for acceptance of responsibility under
Wilcox argues his 110-month sentence is unreasonable with regard to
We reject Wilcox‘s claim that the court improperly ignored his age, lack of criminal history, reputation in the community, and cooperation with the court. The sentencing guidelines account for Wilcox‘s lack of a criminal history and his acceptance of responsibility.
We also reject Wilcox‘s contention that the court gave undue weight to the guidelines. Sentences imposed within the guidelines are presumptively reasonable, United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005), cert. denied, 126 S. Ct. 840 (2006), and Wilcox has not shown that the court improperly treated them as mandatory. Indeed, the court specifically referred to the guidelines as “advisory.” (S. Tr. at 36).
Wilcox contends that the district court improperly penalized him for exercising his right to a jury trial when it cited his decision to proceed to trial as a reason for imposing a sentence above the bottom of the advisory guideline range. It is settled that a court, consistent with the Constitution, may grant leniency in return for a plea of guilty, and may withhold similar leniency from a defendant who proceeds to trial. See Corbitt v. New Jersey, 439 U.S. 212, 223 (1978). Under the federal sentencing guidelines, for example, the Constitution does not forbid a court to withhold a reduction for acceptance of responsibility because the defendant proceeded to trial.
Consistent with these authorities, when a court reduces the advisory guideline offense level because the defendant accepted responsibility for the offense of conviction, the court may temper the extent of this reduction because the defendant went to trial. United States v. Jones, 997 F.2d 1475, 1478-80 (D.C. Cir. 1993) (en banc). By withholding a certain degree of leniency offered through the reduction for acceptance of responsibility, the court cannot be
In this case, the district court granted Wilcox a downward adjustment for acceptance of responsibility, even though he proceeded to trial, proclaimed his innocence, and sought to portray his minor victim as a sexual aggressor. The sentencing guidelines provide that the downward adjustment for acceptance of responsibility “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”
acceptance of responsibility, and instead receive an upward adjustment for obstruction of justice pursuant to
B.
Finally, Wilcox appeals the district court‘s award of restitution to D.T.‘s mother, Melissa, under the Mandatory Victims Restitution Act,
We conclude that the district court erred by awarding Melissa restitution as a “victim” under
victim who suffered bodily injury. See United States v. McAlester-Edwards Coal Co., 262 U.S. 200, 208 (1923) (holding that where statute referred to “the appraisement,” “the use of the definite article means an appraisement specifically provided for.“); Flandreau Santee Sioux Tribe v. United States, 197 F.3d 949, 952 (8th Cir. 1999) (“The statute‘s use of ‘the person’ refers to someone specific“); Webster‘s Third New International Dictionary 2368 (2002) (“The[:] used as a function word to indicate that a following noun or noun equivalent refers to someone or something previously mentioned or clearly understood from the context of the situation“). Because only D.T., not Melissa, suffered bodily injury, Melissa is not a
Another section of the restitution statute,
It is not clear whether the district court believed that Melissa‘s loss of income proved that D.T. herself lost income as a result of the offense. See S. Tr. at 39 (“Melissa – as the victim, the mother can assume those rights for the victim. And I find that the victim by and through her mother has been directly and proximately harmed by this crime.“). The government does not appear to advance this theory, relying instead on its argument that Melissa was a victim who may be reimbursed.
While the economic reality may be that a parent‘s loss of income to some extent flows through and impacts a dependent child, we do not believe the text of
The Social Security Administration, in determining eligibility for disability benefits, does “deem” a certain percentage of a parent‘s income to be income of a dependent child.
of a parent‘s lost income – either by deeming some portion of the parent‘s income to be income of the child, or by recognizing the parent as a separate victim who may be reimbursed when a dependent suffers bodily injury – but we do not think the present statutory language encompasses that policy. See Hughey v. United States, 495 U.S. 411, 422 (1990) (“Even were the statutory language regarding the scope of the court‘s authority to order restitution ambiguous, longstanding principles of lenity, which demand resolution of ambiguities in criminal statutes in favor of the defendant, preclude our resolution of the ambiguity against petitioner on the basis of general declarations of policy in the statute and legislative history.“) (citations omitted). Thus, we vacate the court‘s order awarding Melissa $4,957.80 for lost income under
We conclude that the court‘s award of $720.90 under
Here, the court district found that “visits to a healer or medicine man” constituted “treatment” under
* * *
For the foregoing reasons, we affirm Wilcox‘s conviction, uphold the term of imprisonment imposed, and sustain $720.90 of the court‘s restitution order. We vacate the remainder of the restitution order, and remand for entry of an amended judgment.