Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 91 CR 222--Robert W. Warren, Judge.
Before CUMMINGS, BRIGHT *fn* and COFFEY, Circuit Judges.
The defendant-appellant Stewart Boyles was charged with one count of kidnapping Patricia Tomow and Matthew Escalante in violation of 18 U.S.C. sec. 1201(a)(2), and four counts of aggravated sexual abuse of Tomow in violation of 18 U.S.C. secs. 2241(a)(1), and 2245(2)(A), (B), and (C). Each of the crimes charged took place on the Menominee Indian Reservation in Wisconsin and both the victims and defendant are Native Americans; thus, Boyles was also charged with violating the Indian Major Crimes Act. 18 U.S.C. sec. 1153. After a jury trial, the court received and accepted the jury's verdict and found the defendant Boyles guilty of all five counts set forth in the indictment, and sentenced him to 211 months imprisonment (17 years and 7 months), five years supervised release, and imposed a special assessment of $250. Boyles appeals his convictions and the sentence imposed. We affirm.
On September 5, 1991, Patricia Tomow and her three year old son, Matthew Escalante, were at the home of Katherine Shawanomitta. According to Tomow, she and Shawanomitta were drinking beer with Dwight Stick O'Kimosh, Shawanomitta's boyfriend. Stewart Boyles, Shawanomitta's step-brother and Tomow's distant cousin, also visited Shawanomitta's home twice that day, and while there drank beer and, according to Tomow, used cocaine. He also smoked marijuana and drank vodka during that same twenty-four hour period.
At some point during the evening, Tomow asked Boyles to drive Matthew and her home. He agreed, but asked if he could first stop at another home on the reservation. Tomow agreed to accompany him and she and Matthew got into his car. *fn1 Tomow placed Matthew, who was sleeping, in the back seat of the car and when they arrived at the other house, they observed that no lights were on, so they drove away.
Tomow's and Boyles's stories differ from this point forward. Tomow testified that Boyles stated that he was not taking her home, and she also alleged that he placed one of his hands on her throat, and drove the car to a remote area of the reservation near the Wolff River, where he parked "at the end of the road, and . . . pulled [Tomow] by the hair out of the car and hit [her] on the side of the head[.]" He then removed her sweatshirt and jeans and proceeded to forcibly sexually assault her on the hood of his car and on the ground. Thereafter, Boyles forced Tomow to perform an act of oral sex on him, and proceeded to commit a number of other sexual attacks upon her. Tomow also claimed that he threatened to kill her and Matthew if she did not comply with his sexual demands.
At some point during the assaults, Matthew awoke and got out of the car. When he observed his mother crying, he began screaming. Boyles swore at him, grabbed him around the neck and threw him back into the car. After Matthew was back in the car, Boyles grabbed Tomow and sexually attacked her once more.
Thereafter, Boyles drove Tomow and Matthew to the War Bonnet Tavern, also on the reservation. Tomow and Boyles agree that they arrived at the Tavern at approximately 1:45 a.m. Upon arriving, the defendant entered the Tavern and asked the owner if he could purchase beer on credit. Shortly after his request was denied, Tomow and Matthew entered the Tavern and the Tavern owner observed that both of them were crying. Tomow told the owner that she had been raped and asked him to call the police, at which point Boyles left the bar and went to his girlfriend's home.
When the police arrived at the Tavern, they conveyed Tomow to a hospital in Shawano, Wisconsin, where she was examined and treated by a doctor, and interviewed by a domestic violence counselor. The doctor took a "rape kit" of body samples from Tomow *fn2 and sent them, along with Tomow's clothing, to the Federal Bureau of Investigation *fn3 for an examination, analysis and report.
The doctor who examined and treated Tomow at the hospital noted in his report that she had bruises on her fingers and forearms, that the front of her thighs were scraped and bruised, and also observed bruises on her neck and shoulders as well as her buttocks and back. Blades of grass, weeds, sand and dirt were all present in the area around Tomow's anus. At trial, the doctor testified that these injuries were consistent with the nature of the assault that Tomow described, that the marks on her thighs were caused by "some type of force or pressure by some linear object, something that has an edge or straight portion to it, which probably was forcible," and could have been caused by being forced against the hood of a car and being assaulted from the rear.
Boyles, when testifying in his own defense, gave a story which was in stark contrast to that of the victim, Tomow. He testified that they left Shawanomitta's house at approximately 12:45 a.m. as he was interested in getting more beer. Although Tomow stated that the defendant was interested in buying some cocaine, Boyles denied stating that he had any intention of wishing to purchase cocaine. He told the court that he drove toward the War Bonnet Tavern, which he thought was closed, so he proceeded to drive to another house on the reservation to get beer. After he saw that nobody was home, he drove toward the Wolff River to a place where he thought he might be able to purchase beer on credit.
While driving toward the River, Boyles said he observed Tomow take a pill and inquired of her what kind of pill it was. Allegedly she responded that it was a "horny pill." After this comment, he claimed their conversation turned to one of sexual matters, and they drove to a secluded area to engage in consensual intercourse. Boyles testified that it was Tomow's idea to have sex on the hood of his car and he denied engaging in oral sex, or any sexual acts, on the ground.
When her infant son Matthew exited the car, the defendant stated that he yelled at him to get back in the car because he was afraid that Matthew might fall into the river. Boyles denied ever grabbing Matthew. Upon completion of their sexual acts, Boyles said that he and Tomow drove away as they both spoke about how good their experiences were. Boyles claimed that he began to tease Tomow about her pills and also about a prior incident in town in which another man spurned Tomow's advances. Tomow became angry at this time.
When they arrived at the War Bonnet Tavern, Boyles stated that Tomow asked him to purchase cigarettes for her and that when he refused to do so, it enraged her further. Boyles went on to state that she grabbed his hair to keep him from leaving her, and Boyles claims that he may have "slammed her" and grabbed her around the throat to get away from her. When he attempted to remove her from his car, he alleged that she began kicking him so he pulled her out of the car by her legs and she fell to the pavement, which caused the bruises on her back and shoulders. When Tomow started to leave with Matthew, Boyles said he went into the Tavern to purchase beer on credit.
It was at this point that he claimed that Tomow entered the Tavern, told him "now you're going to get it," and fabricated the entire story about being raped. Boyles left the Tavern, went to his girlfriend's house, and listened to a "police band radio" to ascertain whether the Menominee Tribal Police were looking for him. He heard a report that the police were looking for him and said that he thought it was for assault and battery because of the alleged fight in the Tavern parking lot.
The next morning, Boyles told his girlfriend that he had some sort of altercation with Tomow the previous evening in the Tavern parking lot. He did not tell her that they engaged in sexual intercourse because he did not want her to become angry or jealous. Boyles drove back to his home in Shawano and called the Tribal Police, who confirmed that they were looking for him. Boyles told the police that he would report to headquarters shortly, and when he arrived at the station, he was placed under arrest for sexually assaulting Tomow. After being advised of his Miranda rights, he gave a written statement of his version of the events, in which he denied having engaged in intercourse with Tomow. At trial, Boyles testified that he had fabricated his written statement about not having engaged in sexual intercourse with Tomow because he wanted to speak with an attorney before admitting anything.
At the time of his arrest in the station, the FBI seized the clothing Boyles was wearing. The FBI also obtained a court order to collect samples of the defendant's blood, pubic hair and head hair. With Boyles's consent, the police also impounded his car. The tires on his car were coated with dried mud and Tomow's wallet, personal identification, and sweatshirt were found in the vehicle. Additionally, the tire tread marks found at the scene of the crime matched those on Boyles's vehicle, confirming that the assault in all probability did take place at the location Tomow described.
During the jury trial, the government gave notice that they planned to call Matthew as a witness, but because he was only four years of age at the time of trial, the government asked leave of the court to have Matthew's testimony videotaped in order that he might not have to testify facing Boyles in open court. The government's motion was granted and Boyles challenges, for the first time on appeal, the propriety of the videotaped testimony.
The government also called Dwight Stick O'Kimosh, Shawanomitta's boyfriend, as a witness. He stated that while he was at Shawanomitta's house, Tomow was complaining about her boyfriend because she had not seen him for the last five nights. O'Kimosh said that Tomow made a comment about how she "might as well go f___ around on him too," and he observed that she consumed a large amount of beer while at Shawanomitta's house.
After O'Kimosh testified, Boyles's counsel informed the court, in a sidebar conference, that Boyles had engaged in consensual intercourse with Tomow on two prior occasions, once within the last year and another time some years earlier. He advised the court that he would request that Boyles testify about these incidents, and that he be allowed to question Tomow about them if she denied under oath that she had previously engaged in intercourse with Boyles. The judge remarked to the attorneys that he was "inclined to agree" with Boyles that the prior consensual acts of intercourse were relevant to the issue of consent. When Boyles testified at trial, he never referred to any prior sexual contacts with Tomow, nor did his attorney make any further reference to the statement he had made at the sidebar conference about the two prior alleged incidents of sexual activity between the defendant and the victim.
After the close of evidence and final arguments, the jury was given its instructions. The government and defense counsel both proposed the same mens rea definition:
When the word "knowingly" is used in these instructions, it means that the defendant realized what he was doing and was aware of the nature of his conduct and did not act through ignorance, mistake or accident. Knowledge may be proved by the defendant's conduct and by all the facts and circumstances surrounding the case.
Neither party requested an instruction about the effect of Boyles's or Tomow's intoxication, nor was one given. The jury was also instructed as to the elements of the offense of "aggravated sexual abuse," 18 U.S.C. sec. 2241(a)(1), *fn4 but not as to the elements of "sexual abuse." 18 U.S.C. sec. 2242(1). *fn5
The jury returned verdicts of guilty against Boyles on all five counts charged in the indictment, and the Probation Department calculated his adjusted offense level at 33 *fn6 and a criminal history category of IV. *fn7 The Sentencing Guidelines mandated an imprisonment range of 188 to 235 months, supervised release of three to five years, and a fine of $17,500 to $175,000. Boyles was sentenced to 211 months imprisonment, followed by five years supervised release, and a $250 special assessment. The judge waived the imposition of a fine, ...