Jerry Yeager v. City Water & Light

1The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2963
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Sonny Ray Escarsega, also *
known as Sonny Ray Ruiz, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 11, 2006
Filed: June 5, 2006
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
After a jury trial, Sonny Ray Escarsega was convicted of one count of
kidnapping Victoria Roubideaux, in violation of 18 U.S.C. §§ 1153 and 1201(a)(2);
two counts of causing her to engage in a sexual act by using threats or force, in
violation of 18 U.S.C. §§ 1153, 2241(a), and 2246(2); and four counts of assaulting
her with a dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3). The
district court1 imposed concurrent sentences totaling 216 months imprisonment and

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5 years supervised release. Escarsega’s counsel has moved to withdraw and filed a
brief under Anders v. California, 386 U.S. 738 (1967). After careful review of the
record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we ordered additional briefing
regarding a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). For the reasons
discussed below, we affirm.
Escarsega argues the evidence was insufficient to sustain the jury convictions.
When considering such a claim, we view the facts in the light most favorable to the
government, giving it the benefit of drawing all reasonable inferences from the
evidence. See United States v. Goodlow, 105 F.3d 1203, 1205 n.2 (8th Cir. 1997).
We conclude the evidence was clearly sufficient to support the convictions for
assaulting Roubideaux with a dangerous weapon, as she testified Escarsega stabbed
her with a knife, hit her in the head with a telephone receiver, kicked her with shod
feet, and cut her back with a razor blade.
As to the sexual-assault convictions, we conclude a reasonable jury could find
beyond a reasonable doubt that Escarsega forced Roubideaux to engage in a sexual
act. See 18 U.S.C. § 2241(a) (unlawful to knowingly cause another person to engage
in sexual act by using force or threat against that person); United States v. Gabe, 237
F.3d 954, 961 (8th Cir. 2001) (force is established if defendant overcomes, restrains,
or injures victim, or if defendant uses threat of harm sufficient to coerce or compel
submission). Although Roubideaux testified at trial she had consensual sex with
Escarsega, she also admitted at trial she had told the FBI and testified before the grand
jury that he forced her to have sex, and that she was afraid to refuse him. The jury
was free to credit her prior statements. Cf. United States v. Renville, 779 F.2d 430,
439-40 (8th Cir. 1985) (discussing hearsay exception in child-sexual-abuse case;
where declarant admits she made accusations to police, but testifies these earlier
statements were lies, jury faces routine question of credibility). In addition, the
evidence clearly established that Escarsega assaulted Roubideaux numerous times,
including once when she refused to have sex with him. See United States v.

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Nazarenus, 983 F.2d 1480, 1485 n.1 (8th Cir. 1993) (noting there was abundant
evidence that victim was physically forced to engage in sexual acts, including
testimony regarding how badly victim was beaten and traumatized after encounter
with defendant).
As to the kidnapping conviction, we conclude a reasonable jury could find
beyond a reasonable doubt that Escarsega held Roubideaux against her will. See 18
U.S.C. § 1201(a)(2) (unlawful to kidnap and hold any person within territorial
jurisdiction of United States); United States v. McCabe, 812 F.2d 1060, 1061 (8th
Cir.) (victim’s lack of consent is fundamental element of kidnapping), cert. denied,
484 U.S. 832 (1987). Although Roubideaux testified at trial she chose to stay with
Escarsega, she also admitted at trial she had told the FBI and testified before the grand
jury that he would not let her leave and threatened to kill her if she left. Again, the
jury could discredit her trial testimony, but credit her prior statements.
Next, Escarsega argues the district court erred in denying his motion to suppress
evidence obtained pursuant to a search warrant. In his application for the warrant and
at the suppression hearing, FBI Special Agent Mackey testified that after interviewing
Roubideaux, he went to the apartment where she stated she had been held and
assaulted. There, Edward Charging Elk, Sr., initially did not consent to a search of the
apartment, but later allowed officers to search for Escarsega. During this search,
Mackey observed evidence of the assaults against Roubideaux, and obtained the
search warrant in part based upon his observations.
We conclude the district court properly denied the motion to suppress. Even
though he did not lease the apartment, Charging Elk had lived there for about five
months prior to the search and thus had common authority over the apartment. See
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (warrantless search of residence does
not violate Fourth Amendment if voluntary consent is obtained from third party who
possesses common authority over property); United States v. Matlock, 415 U.S. 164,

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171 n.7 (1974) (“common authority” not determined by property interest, but by
mutual use of property by persons generally having joint access or control for most
purposes). Even if Charging Elk did not have actual authority to consent to the
search, the officers who conducted the search reasonably believed that he had such
authority, given their belief that Charging Elk lived at the apartment, and his previous
display of authority over the apartment by initially refusing to give Mackey consent
to search. See Rodriguez, 497 U.S. at 185-86 (police must reasonably believe at time
of search that person consenting has authority to do so); United States v. Czeck, 105
F.3d 1235, 1239 (8th Cir. 1997) (relevant inquiry is whether facts available would
have justified reasonable officer’s belief that consenting party had authority over
premises).
Escarsega also argues the court erroneously denied his motion to sever the
counts of the indictment. We conclude, however, that the counts were properly joined
in one indictment and that Escarsega was not severely prejudiced by joinder. The
sexual-assault and assault counts that he sought to sever involved similar conduct as
the sexual-assault and assault counts that would remain, all of the conduct was alleged
to have occurred within a ten-month period, and the evidence on each count would
have been admissible at a trial on the other counts. See Fed. R. Crim. P. 8(a), 14(a);
United States v. Boyd, 180 F.3d 967, 981-83 (8th Cir. 1999).
Next, we reject Escarsega’s contention that the district court erred in admitting
evidence that he had assaulted Roubideaux on two prior occasions. See Fed. R. Evid.
404(b); Arcoren v. United States, 929 F.2d 1235, 1243 (8th Cir.) (district court has
broad discretion to admit other-act evidence, and its determination will be upheld
absent abuse of discretion; evidence is admissible under Rule 404(b) if evidence is
relevant, other act is similar in kind and reasonably close in time to charged offense,
evidence of other act is clear and convincing, and evidence’s probative value does not
outweigh its prejudice), cert. denied, 502 U.S. 913 (1991). The evidence of his other
assaults was relevant to show that he intended to cause bodily harm during the

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charged offense, and that Roubideaux feared bodily injury if she refused sexual
intercourse; the other assaults were similar to the charged assaults that occurred a year
later; Roubideaux’s testimony clearly and convincingly established that the other
assaults occurred; and the evidence was more probative than prejudicial, as the district
court twice instructed the jury that such evidence was admitted only for proving
intent.
Next, Escarsega asserts the district court should have granted him a mistrial
when the government asked an FBI agent on direct examination whether he requested
Escarsega to provide a written or tape-recorded statement at the end of an interview.
We conclude the district court did not abuse its discretion in denying a mistrial
because, even assuming the government’s question impinged on Escarsega’s right to
remain silent, the question did not deprive him of a fair trial. See United States v.
Hale, 1 F.3d 691, 694 (8th Cir. 1993) (standard of review; mistrial warranted where
prosecutor’s improper remarks were so offensive as to deprive defendant of fair trial).
The FBI agent had already testified that Escarsega agreed to be interviewed and talked
about the charges, and the court instructed the jury to disregard the question.
Escarsega also contends the district court should have excluded expert
testimony on Battered Woman Syndrome (BWS) because the government did not
provide him with sufficient notice. We find no abuse of discretion in allowing the
expert testimony. See Arcoren, 929 F.2d at 1238-40. Escarsega did not request
disclosure of written summaries of expert testimony, see Fed. R. Crim. P. 16(a)(1)(G),
and the government learned of the need to present expert testimony on BWS shortly
before trial when Roubideaux indicated she would recant her previous statements, see
Arcoren, 929 F.2d at 1242 (government’s calling expert to testify on BWS was
reasonable response to victim’s recantation of prior statements on first day of trial;
nondisclosure of intent to call expert witness did not deny defendant due process).

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Last, we find the district court did not clearly err in denying Escarsega’s
challenge under Batson v. Kentucky, 476 U.S. 79 (1986), based on the government’s
strike of the only remaining Native American on the jury panel. The government
offered race-neutral reasons for the strike, including concern that the person’s body
language was “very closed” during government questioning. See McKeel v. City of
Pine Bluff, 73 F.3d 207, 210-11 (8th Cir. 1996).
The judgment of the district court is affirmed.
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