487 F.3d 1163 (8th Cir. 2007), 06-2350, United States v. Wilcox

Docket Nº:06-2350.
Citation:487 F.3d 1163
Party Name:UNITED STATES of America, Appellee, v. David WILCOX, Appellant.
Case Date:May 29, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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487 F.3d 1163 (8th Cir. 2007)

UNITED STATES of America, Appellee,


David WILCOX, Appellant.

No. 06-2350.

United States Court of Appeals, Eighth Circuit.

May 29, 2007

Submitted: December 12, 2006

Appeal from the United States District Court for the District of South Dakota.

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Terry L. Pechota, argued, Rapid City, SD, for appellant.

Gregg S. Peterman, Asst. U.S. Atty., argued, Rapid City, SD, for appellee.

Before BYE, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

A jury convicted David Wilcox of sexual abuse of a minor, D.T., in violation of 18 U.S.C. §§ 2242 and 2243. On appeal, Wilcox challenges the sufficiency of the evidence against him, the process for selecting the jury that convicted him, several of the district court's evidentiary rulings, the jury instructions, the reasonableness of the sentence imposed, and the court's award of restitution to D.T.'s mother. We affirm Wilcox's conviction but vacate a portion of the restitution award and remand for imposition of a corrected sentence.


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

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Melissa's cabin. He entered the cabin, walked to the bedroom, woke D.T., and spoke with her briefly. D.T. then fell back asleep, and Wilcox laid down on the bed next to her.

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 18 U.S.C. § 2242(2). Count II charged him with sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). Wilcox pled not guilty and successfully moved to suppress his underwear. The underwear had been seized by a tribal police officer, and laboratory analysis determined that it contained D.T.'s vaginal fluid. Wilcox was then tried by a jury, which convicted him on both counts.

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 USSG § 3E1.1(a). This reduced his offense level to 30 and resulted in an advisory guideline range of 97 to 120 months. The court then imposed a sentence of 110 months, explaining that it was imposing a sentence in the middle of the guideline range, rather than at the bottom, because of Wilcox's initial

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dishonesty and because he had forced D.T. to endure the trauma of a trial. The court also awarded Melissa $5,678.70 in restitution under the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, for lost wages and the costs of transporting D.T. to healing ceremonies. Wilcox appeals the convictions, the term of imprisonment, and the restitution award.


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 18 U.S.C. §§ 2242 and 2243, both of which require proof that a "sexual act" occurred. The sexual act charged was contact between the penis and the vulva, which "occurs upon penetration, however [] slight." 18 U.S.C. § 2246(2)(A). Wilcox contends that evidence of penetration was absent and that there was thus insufficient evidence to prove sexual abuse.

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 18 U.S.C. § 2242, which makes it unlawful to engage in a sexual act with a person "physically incapable of declining participation in, or communicating unwillingness to engage in, that act." 18 U.S.C. § 2242(2)(B). Here too, the jury had sufficient evidence to convict Wilcox. A reasonable jury may conclude that a person who is asleep when a sexual act begins is physically unable to decline participation in that act. United States v. Barrett, 937 F.2d 1346, 1347-48 (8th Cir.1991). D.T.'s testimony that she awoke with Wilcox on top of her and feeling pain inside of her "bottom part" provided sufficient evidence for the jury to conclude that penetration occurred while she was asleep

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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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, 106 S.Ct. 1712.

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We have applied Batson to the federal government through the Due Process Clause of the Fifth Amendment. United States v. Elliott, 89 F.3d 1360, 1364 n. 3 (8th Cir.1996). In considering a Batson challenge, the district...

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