Rothgeb v. U.S.

• Citation: 789 F.2d 647
• Decision Date: 25 June 1986
• Docket Number: No. 85-1556,85-1556
• Parties: 20 Fed. R. Evid. Serv. 681 David Lee ROTHGEB, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 647

789 F.2d 647

20 Fed. R. Evid. Serv. 681

David Lee ROTHGEB, Appellant, v. UNITED STATES of America, Appellee.

No. 85-1556.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 15, 1985.

Decided April 30, 1986.

Rehearing and Rehearing En Banc Denied June 25, 1986.

Gary L. Stamper, Columbia, Mo., for appellant.

Dean R. Hoag, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HENLEY, Senior Circuit Judge.

David Lee Rothgeb was found guilty of the murders of his wife and daughter, in violation of 18 U.S.C. Sec. 1111. The murders occurred while the family was on a canoe trip in the Ozark National Scenic Riverways. ¹ He was sentenced to life imprisonment for the first degree murder of his wife, April Rothgeb, and was sentenced to two hundred ten years imprisonment for the second degree murder of his daughter, Windy Rothgeb. Rothgeb appeals his jury convictions arguing that the evidence was insufficient to convict him, that the trial court ² erred in admitting prejudicial evidence, and that the sentence of two hundred ten years imprisonment for second degree murder is outside the statutory limits. We affirm.

Rothgeb first argues that the trial court erred in denying his motions for acquittal, which were submitted at the close of all the evidence and after the jury verdict was returned. In reviewing an appeal from a jury verdict for insufficiency of the evidence, we view the evidence in the light most favorable to the government and give it the benefit of all reasonable inferences that may logically be drawn from the evidence. United States v. Netz, 758 F.2d 1308, 1310 (8th Cir.1985). The jury's verdict will be overturned only if the evidence is such that a reasonable minded jury must have a reasonable doubt as to the existence of one of the essential elements of the crime. Id.

Rothgeb argues that the evidence was insufficient to support his conviction because the government failed to prove that the deaths were a result of murder, and not accidental drownings, and that, if a crime was committed, he did it. The government argued that Rothgeb planned the murder of his wife so he could collect insurance money and go live with his lover, taking his daughter with him. The government theorized that the murder of Windy was not planned, but that Windy saw the murder of her mother and that Rothgeb then killed her as well.

We forego as unnecessary detailed discussion of the evidence but briefly sketch the main facts.

The family started the float trip down the Upper Jacks Fork River Saturday morning, June 16, 1984. There was evidence that April and Windy did not want to go on the float trip, but that Rothgeb insisted on the trip. According to Rothgeb's testimony, the family floated down the river until about three o'clock in the afternoon. They then stopped and set up camp on a gravel bar across from the Dark Hollow Hole, a swimming hole which was about eight to ten feet deep. The family swam for a while, ate dinner, and then went for another swim. Both Windy and April were good swimmers. The women then decided to change out of their swimsuits. Windy, who was fifteen years old, was embarrassed to change her clothes in front of her father. He stated that she could not change in the tent because a cat had urinated in the tent and it smelled terrible. He went upstream to get some firewood while Windy and April changed clothes. When he returned the women were gone. He noticed that their swimsuits were hanging on a line. He changed his clothes and then waited for the women to return. After a while he walked downstream a short distance looking for them, calling their names and shouting. He returned when it was getting dark. He then built up the fire in case they returned, and around 9:00 o'clock walked upstream three-fourths of a mile to the Bunker Hill Camp. He arrived there around midnight and obtained help.

Park rangers started searching that night for the two women. When they came to the camp in the early hours of the morning they found only one swimsuit on the line; April's swimsuit was found in the grub box on top of her husband's swimsuit. The camp site was not in disarray, and there was no appearance of a struggle having taken place. No footprints were found outside a fifty yard radius on the gravel bar. No footprints were found on a gravel bar where Rothgeb told the officers he had walked when looking for his wife and child. No ranger who entered the tent smelled cat urine there. Five men, camping approximately one-fourth of a mile below the Rothgeb campsite, said they neither saw Rothgeb nor heard him calling for his wife and child that evening. There was evidence that it usually takes one-half hour in daylight to walk from the Rothgeb campsite to Bunker Hill; it took Rothgeb three hours that night.

It was not until the following morning that the bodies of April and Windy, fully clothed, were found. April's body was found three-fourths of a mile downstream from the Rothgeb camp, caught on a root-wad. About two hundred fifty--three hundred yards downstream from the Rothgeb camp the body of Windy was found in an eddy, out of the mainflow of the river. Windy's glasses were found in water twenty-four inches deep, approximately twenty-five yards downstream from the family camp. ³ The bodies of both women had various cuts, scrapes and bruises, the causes of which were disputed at trial. Both women died by drowning, but it could not be determined whether they were conscious at the time they drowned. Neither woman had been sexually assaulted.

Rothgeb testified that he and April had discussed getting a divorce; however, with the exception of one of his friends, no one else, including April's parents and friends, was aware that there were any marital problems or plans for a divorce. Rothgeb had a lover, Kitty Eldridge, who lived in North Carolina. He had met her in November, 1983, approximately seven months before the murders occurred. He had communicated with her frequently and had visited her on two occasions. The second visit was during the last week of May, two and one-half weeks before the murders. The day before the float trip Rothgeb talked with Kitty four different times on the telephone.

The evidence showed that Kitty had the impression from Rothgeb that the float trip was to be the last family trip before the divorce, and she had told a friend that Windy and Rothgeb were coming to live with her in North Carolina. Rothgeb's letters to Kitty also suggested that he and Windy were going to move to North Carolina and live with Kitty. It was not likely that Rothgeb could have easily gotten custody of his daughter. Windy was April's only child, and April had had a tubal ligation and could not have any more children.

On April 24, 1984, less than two months before her murder, a $100,000.00 insurance policy was purchased on April's life. Before 1984 the Rothgebs had no insurance on April's life other than a $3,000.00 policy through Rothgeb's employer. No mention was made to the insurance salesman of any plans for divorce. David Rothgeb was the primary beneficiary of this policy. Within days of his wife's death he had contacted the insurance company.

As indicated, we have set out only some of the facts involved in this case. We have not set out all of the inconsistencies in Rothgeb's story, the conflicting statements he made to various people, the experts' opinions as to how the women incurred the injuries found on their bodies, and the other circumstantial evidence which supports a finding of guilt.

Rothgeb argues that there were two equally reasonable inferences, one of guilt and one of innocence, and therefore the jury must have had a reasonable doubt. We disagree that there were two equally reasonable inferences. The jury's verdict was supported by substantial evidence, and we do not believe that the jury must have had a reasonable doubt of Rothgeb's guilt. The government did not have to prove Rothgeb's guilt beyond any possible doubt, only beyond reasonable doubt. The trial court did not err in denying the motions for acquittal.

Rothgeb next argues that the trial court erred in admitting the testimony of Trooper Horst. The trial court has broad discretion in determining what evidence can be admitted, and its decision will be overturned on appeal only if there was an abuse of discretion. United States v. Swarek, 656 F.2d 331, 337 (8th Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1981). Trooper Horst was present when Rothgeb took a polygraph examination and was asked three times, in slightly different context, whether he had killed his wife and child. At trial, no mention was made of this polygraph examination. Horst testified only that he was present during an interrogation when Rothgeb was asked the questions, and that he observed that for each question Rothgeb would hold his breath for five to fifteen seconds, reply no, and then pant like a dog. He also stated that Rothgeb sweated profusely during the questioning.

Rothgeb argues that the probative value of the testimony was outweighed by the unfair prejudicial effect. See Fed.R.Evid. 403. He argues that the government offered the evidence to prove consciousness of guilt, but that the evidence did not support an inference of guilt and therefore it should not have been admitted. He compares the evidence of his demeanor to evidence of flight from the scene of the crime. See United States v. Myers, 550 F.2d 1036 1049 (5th Cir.1977) (flight evidence is generally viewed as an admission by conduct which gives rise to a consciousness of guilt. It should be admitted only if an inference of consciousness of guilt can be fairly made from evidence). One's demeanor during questioning is not necessarily comparable to the prejudicial effect created by evidence of flight. Heavy breathing and sweating during an interrogation are not...