U.S. v. Decoteau

• Decision Date: 12 January 2011
• Docket Number: No. 10–2122.,10–2122.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Kyle Ray DeCOTEAU, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

630 F.3d 1091

UNITED STATES of America, Plaintiff–Appellee,
v.
Kyle Ray DeCOTEAU, Defendant–Appellant.

No. 10–2122.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 14, 2010.Filed: Jan. 12, 2011.

[630 F.3d 1093]

William D. Schmidt, AFPD, argued, Bismarck, ND, for appellant.Brandi Sasse Russell, AUSA, argued, Gary Lee Delorme, AUSA, on the brief, Bismarck, ND, for appellee.Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.MURPHY, Circuit Judge.

Kyle Ray DeCoteau was charged with aggravated sexual abuse of a child and abusive sexual contact in violation of 18 U.S.C. §§ 2241(c), 2244(a)(5), and 1153. A jury convicted him on two counts of each offense. His motion for judgment of acquittal on one count of aggravated sexual abuse was granted, and the district court ¹ sentenced him to 360 months on the other count, to run concurrently with 51 month sentences for his two abusive sexual contact convictions. DeCoteau appeals, arguing that the district court erred in finding him competent to stand trial, in denying his motion for judgment of acquittal on his remaining conviction for aggravated sexual abuse, and in concluding that it lacked authority to sentence him below a statutory mandatory minimum. We affirm.

I.

Kyle DeCoteau is a member of the Turtle Mountain Band of Chippewa Indians. He lived on the reservation and was diagnosed at an early age to have mild mental retardation. He sometimes stayed with a girlfriend named Kelly Schroeder. Kelly lived with her sister Karen and her family in a three bedroom trailer. Karen and her husband had two young daughters, “S.S.” and “R.S.L.” DeCoteau visited the Schroeders from time to time between December 2006 and the fall of 2007, occasionally spending the night to babysit S.S. and R.S.L. In the spring of 2008 S.S. and R.S.L. told their mother that DeCoteau had sexually abused them. Karen reported the abuse to the Turtle Mountain Child Welfare Office, which referred the reports to the FBI.

Special Agent Ryan O'Neil investigated the allegations. DeCoteau initially denied abusing S.S. or R.S.L. Later he told O'Neil that S.S. had once come up to him, took his hand, and guided one of his fingers into her vagina. O'Neil asked DeCoteau to provide a written statement, but DeCoteau told him he could not read or write. He later provided a taped statement and was released.

O'Neil scheduled a meeting between S.S. and a forensic interviewer at the Northern Plains Children's Advocacy Center. During that interview, S.S. disclosed that DeCoteau had had inappropriate sexual contact with her when she was five years old on more than one occasion. R.S.L. also told an interviewer that DeCoteau had sexually abused her. Subsequently the government filed a four count indictment in June 2008, charging DeCoteau with two counts of aggravated sexual abuse of a child for penetration of S.S.'s vagina by his penis and by his finger.² DeCoteau was also charged with two counts of abusive

[630 F.3d 1094]

sexual contact for other abusive incidents with S.S. and R.S.L.³

DeCoteau moved for a competency evaluation before trial. Each side hired experts who conducted psychological and intellectual tests on DeCoteau. The results of the tests confirmed that he had an IQ of between 55 and 57, which was in the lower range of individuals with mild mental retardation. The experts generally agreed that DeCoteau understood the seriousness of the charges against him, but they expressed differing opinions on whether he could adequately participate in his own defense. Although recognizing “serious questions concerning DeCoteau's level of functioning, and, in part, his competence,” the district court ultimately found that DeCoteau was “competent to stand trial.”

At trial the government's central witness was S.S., who was then still under the age of ten. S.S. identified DeCoteau as her abuser by writing his name down on a piece of paper. She then circled on an anatomical diagram of a child the places where it would be a “bad touch” for another person to touch her. She also indicated that DeCoteau had touched her in “bad places.” The crucial line of inquiry continued as follows:

Q. When you say that ... somebody touched you there, who touched you?

A. Kyle.

Q. Do you know what he touched you with?

A. His hand.

Q. With his hand? [S.S.], when he touched you with his hand, was it above the clothes or under the clothes?

A. Under.

Q. Okay. So was it his [bare] hand on your [bare] skin?

A. Yes.

Q. Okay. Do you know the difference between inside and out, [S.S.]?

A. Yes.

Q. So when he touched you in those parts, was it inside or outside?

A. Inside.

Q. [S.S.], did he just use his hand, or was there any other parts?

A. Just his hand.

R.S.L. also testified that DeCoteau had touched her “where he shouldn't have.” While she was sleeping in her parents' room, DeCoteau woke her up by touching her “middle part” or “frog,” the term she used for the part she uses to go to the bathroom. Other witnesses confirmed that DeCoteau was sometimes left unsupervised with the girls during the time period alleged in the indictment.

At the end of the trial, the district court submitted two counts of aggravated sexual abuse and two counts of abusive sexual contact for the jury's consideration. After deliberating the jury found DeCoteau guilty on all counts. The district court granted his motion for judgment of acquittal on one count of aggravated sexual abuse, however, because there had been “insufficient evidence to support” a finding of contact “between the penis and the vulva.” The court otherwise denied DeCoteau's motion for judgment of acquittal. It then sentenced him to 360 months, the mandatory minimum for aggravated sexual abuse, to run concurrently with 51 month

[630 F.3d 1095]

sentences for abusive sexual contact with S.S. and R.S.L.

DeCoteau appeals. He argues that the district court abused its discretion in finding that he was competent to stand trial and failed to support that decision with facts in the record. He also argues that the evidence was insufficient to sustain his conviction for aggravated sexual abuse, claiming that S.S.'s testimony that he had touched her on the “inside,” even when combined with his own statement that she had guided his hand to touch her vagina, was insufficient to show digital penetration as required by the statute. Finally, DeCoteau argues that the district court erred in stating that it lacked authority to sentence him below the statutory mandatory minimum.

II.

DeCoteau argues that the district court abused its discretion in finding him competent to stand trial. Determining whether a defendant is competent to stand trial “is committed to the discretion of the district court.” United States v. Whittington, 586 F.3d 613, 617 (8th Cir.2009). A district court's competency determination is a factual finding this court will affirm “unless clearly arbitrary or unwarranted” or “clearly erroneous.” Id. (citations omitted). A defendant is competent to stand trial if he possesses a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and [if] he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam).

DeCoteau charges that the district court “made no actual fact findings” in its competency order. He contends that the district court's statement that one expert “certainly raised serious questions concerning DeCoteau's level of functioning and, in part, his competence” undermined its finding of competence. He also asserts that his short term memory problems made...