United States of America, Appellee, v. Dennis W. Tyndall, Appellant.
No. 00-3660
United States Court of Appeals FOR THE EIGHTH CIRCUIT
August 29, 2001
Submitted: May 15, 2001
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Dennis Tyndall was convicted of attempted aggravated sexual abuse, see
I.
Mr. Tyndall‘s conviction stemmed from events involving a thirteen-year-old girl, who testified that Mr. Tyndall asked her to ride with him to his aunt‘s home because he had been drinking, and he might need her to drive him back home. Along the way, she said, Mr. Tyndall pulled into a cornfield, placed a knife to her throat, and asked her to “make love” to him. She was able to escape through an open car window.
A year later, a sixty-seven-year-old woman accused Mr. Tyndall of attempting to assault her sexually. She testified that she went to Mr. Tyndall‘s brother‘s home to visit the brother, but found only Mr. Tyndall there. According to her, after making small talk, Mr. Tyndall twice grabbed her by the arm and asked if he could perform oral sex upon her. She was also able to escape.
Mr. Tyndall contends that the district court erred in joining the two charges for trial. Whether charges may be tried together is a question of law that we review de novo, see United States v. Robaina, 39 F.3d 858, 861 (8th Cir. 1994). Two offenses may be charged and tried together if they are of the “same or similar character,”
Mr. Tyndall contends that none of the prerequisites for joinder was satisfied here, but we disagree. First, the two offenses were “similar” to each other. Rule 8(a) allows joinder not only of crimes of the “same” character but also those of a “similar” character, which means ” ‘[n]early corresponding; resembling in many respects; somewhat alike; having a general likeness.’ ” United States v. Lindsey, 782 F.2d 116, 117 (8th Cir. 1986) (per curiam) (quoting Webster‘s New Int‘l Dictionary (2d ed.)).
The two incidents also occurred over a “relatively” short period of time, see McClintic, 570 F.2d at 689. Although they occurred a year apart, we have upheld the joinder of charges based on events separated by substantially longer periods. See, e.g., Lindsey, 782 F.2d at 117 (17 months); United States v. Rodgers, 732 F.2d 625, 629 (8th Cir. 1984) (20 months).
Finally, the evidence as to each of these incidents overlaps. Although
“In considering evidence offered under
Mr. Tyndall also maintains that the district court should have severed the charges because of the prejudice caused to him by trying them together. When a defendant is prejudiced by the joinder of two charges, the court may in the exercise of its sound discretion sever the charges and require separate trials. See Robaina, 39 F.3d at 861;
II.
Mr. Tyndall‘s final contention is that the district court erred in failing to grant his motion for a mistrial. During Mr. Tyndall‘s testimony, in which he testified to a wild version of the earlier incident, the prosecutor asked the following question on cross-examination: “Today is the first time that anybody associated with law enforcement has heard this version of events from you, isn‘t it?” The court sustained Mr. Tyndall‘s counsel‘s immediate objection to the question, but denied his request for a mistrial. We review the denial of a mistrial motion for an abuse of discretion. See United States v. Hale, 1 F.3d 691, 694 (8th Cir. 1993).
Mr. Tyndall maintains that he was entitled to a mistrial because the prosecutor‘s question violated Doyle v. Ohio, 426 U.S. 610, 618 (1976), by attempting to use Mr. Tyndall‘s post-arrest silence against him. The government contends that the question merely referred to prior inconsistent statements that Mr. Tyndall had made to
The challenged question was the only reference, if any, made by the government to Mr. Tyndall‘s post-arrest silence, and the question was immediately objected to before Mr. Tyndall answered it. The jury, furthermore, was instructed both at the beginning and at the end of trial that questions to which an objection was sustained were to be disregarded. The jury, therefore, was unaware of the fact that Mr. Tyndall had refused to speak to the police after his arrest. Because Mr. Tyndall‘s “postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference,” Greer v. Miller, 483 U.S. 756, 764-65 (1987), there was no violation of Doyle in this case, see id. The district court thus did not abuse its discretion by refusing to grant a mistrial.
III.
For the foregoing reasons, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
