U.S. v. Medearis, 03-2388.

• Decision Date: 02 September 2004
• Docket Number: No. 03-2388.,03-2388.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cody Cheyenne MEDEARIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1049

380 F.3d 1049

UNITED STATES of America, Plaintiff-Appellee, v. Cody Cheyenne MEDEARIS, Defendant-Appellant.

No. 03-2388.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2004.

Filed: September 2, 2004.

Appeal from the United States District Court for the District of South Dakota, Charles B. Kornmann, J Bruce H. Ellison, argued, Rapid City, South Dakota, for appellant.

Randolph J. Seiler, argued, Pierre, South Dakota (Judith K. Grunewaldt, Sioux Falls, South Dakota on the brief), for appellees Asst. U.S. Attorney.

Before WOLLMAN, HAMILTON¹, and BYE, Circuit Judges.

HAMILTON, Circuit Judge.

Cody Cheyenne Medearis (Medearis) appeals his two convictions for aggravated sexual abuse in Indian Country, 18 U.S.C. §§ 1153, 2241(a), and 2246(2). We affirm.

I

A

In considering Medearis' challenge to his aggravated sexual abuse in Indian Country convictions, we recite the facts in the light most favorable to the government, as it prevailed on these counts below. United States v. Reyes, 362 F.3d 536, 539 (8th Cir.2004) ("[W]e recite and evaluate the facts in the light most favorable to the government because it prevailed at trial.").

In April 1998, Medearis met Sherri Whiting (Whiting) on the Rosebud Reservation in South Dakota. Shortly thereafter, Medearis moved with Whiting to her mother's residence in Florida. In October 1998, Whiting and Medearis left Florida and returned to the Rosebud Reservation, settling in the house of Cheryl Medearis, Medearis' mother.

In the next three plus years, the couple had a tumultuous relationship, separating on several occasions, with the final break occurring on January 3, 2002.² On that day, Whiting went, with her children,³ to her aunt's house, which is located on the Rosebud Reservation, near Mission, South Dakota. In the days that followed, Medearis stopped by a few times to see her, but Whiting did not leave to go anywhere with Medearis.

On Friday, January 11, 2002, Medearis and Whiting agreed to see each other about 7:30 p.m. to talk about their relationship. For some reason not entirely clear from the record, Medearis and Whiting did not meet, and Whiting's efforts to find Medearis that evening were unsuccessful.⁴

The following day, at around 8:00 or 9:00 p.m., Whiting saw Medearis while she was driving around Mission. The two talked briefly, but an argument quickly ensued. The argument apparently ended when the two agreed to meet that night at a mutual friend's house at about 10:00 or 11:00 p.m. to talk about their relationship. Medearis never appeared at the mutual friend's house, so Whiting went to the apartment of her cousin, Fred Whiting, where she had earlier planned to spend the night, arriving there at 1:00 or 1:30 a.m. the next morning (January 13, 2002).

At 2:00 or 2:30 a.m., Whiting heard Medearis arrive in his car in the parking lot in front of Fred Whiting's apartment, as she was familiar with the car's distinctive sound. Medearis did not go to Fred Whiting's apartment; instead, he stayed in the car, revving its motor.

Because Medearis and Fred Whiting had previous altercations, Whiting went outside to talk to Medearis. As Whiting approached the driver's side door, Medearis asked her to get inside so they could talk. Because Medearis had been drinking, as evinced by his slurred speech and red eyes, Whiting refused and headed back to Fred Whiting's apartment.

In response, Medearis got out of the car and ran up behind Whiting, swinging, like he was going to hit her. At that time, Whiting saw a hickey on Medearis' neck. When Whiting asked Medearis if he would let her go into Fred Whiting's apartment to get her coat and shoes, Medearis allowed her to do so. After Whiting entered the apartment, Medearis returned to his car.

Because Whiting wanted to get Medearis to leave without getting Fred Whiting or anyone else involved, Whiting went outside to talk to Medearis. Whiting approached the driver's side of the car to talk. The talking turned to arguing, and when it began to snow and drizzle, Whiting entered the car through the passenger side, keeping the door open a crack.

Almost immediately, Medearis started calling Whiting a "slut" and a "bitch." In response, Whiting asked Medearis, rhetorically, why he was coming to see her to work things out when he had a hickey on his neck from somebody else. Medearis denied he had a hickey and Whiting, at this point, told Medearis that she did not want to argue when he had been drinking and suggested that they talk another time. In response, Medearis asked Whiting to continue the conversation, but instructed her to get out of the car.

When Whiting tried to get out of the car, Medearis grabbed her by the back of her hair and yanked her back into the car. Whiting started to scream for Fred Whiting.⁵ Medearis shut the passenger door, slamming Whiting's leg in the door. As Medearis pulled the car out of the parking lot, Whiting tried to jump out, but Medearis grabbed her again, this time putting her in a "headlock" on his lap. Whiting then bit Medearis on the thumb, which allowed her to lunge for the door again. However, Medearis sped away, which prevented Whiting from leaving the car.⁶

Medearis stopped the car on Hidden Timber Road, where the two had a chance to talk, with Medearis indicating he wanted to reconcile and Whiting commenting that she did not because she "couldn't handle the fighting anymore." At one point, Medearis unloaded his gun, telling Whiting, "don't worry, I'm not going to shoot you."

As the two talked, a truck went by, turned around, and slowly approached Medearis' car. Medearis jumped out of the car to speak to the truck driver, who apparently was known to Medearis.

Medearis returned to the car and told Whiting to take the car. Medearis then got out of the car. After he punched a passenger-side window, he reentered the car, telling Whiting to "get the f* * * out of here." Medearis opened the passenger door and pushed Whiting out.

As Whiting walked behind the car, Medearis backed the car up. Medearis then slammed on the brakes, got out of the car, and demanded that Whiting get her "f* * *ing ass in the car" or he was going to "beat the f* * * out of" her. When Whiting started backing away from him, Medearis ran toward her and pushed her onto the highway, telling her to "get the f* * * out of here, run." Whiting started to run away, but Medearis caught her and pushed her into a ditch. When Whiting tried to get up, Medearis grabbed her by her jacket, lifted her off the ground, and told her to get in the car, pushing her back across the highway. Medearis opened the passenger door and "put" Whiting back in the car. Once in the car, Medearis blamed Whiting, saying, "see what you made me do?"

Whiting pleaded with Medearis to take her back to her van, which was located at Fred Whiting's apartment. Medearis angrily accused Whiting of being with other men and demanded to know who they were. Medearis told Whiting that he might as well rape her, "do" her one last time, and that he should just "butt f* * * " her. As Whiting pleaded for him not to do that, Medearis reached over and threw her seat back.

Medearis then started to drive toward his mother's house. On the way, Whiting indicated that she did not want to go there because her kids were there. Nevertheless, Medearis continued toward his mother's house, stopping the car near the driveway to the house. At that point, Medearis threatened Whiting that he would run her over if she got out of the car. Medearis then switched gears somewhat, telling Whiting that if she could "make it through that ditch, across that fence, before [he got] to [her] then [she would] be all right." When Whiting opened the door to get out and make a run for it, Medearis slammed the car into reverse, backing the car up while at the same time taunting Whiting to "jump" out of the car. Medearis then stopped the car and told Whiting he was going to rape her. Thereafter, he starting driving the car again, telling Whiting at this time to remove her pants.

Medearis stopped the car on a trail, just off of Wood Road. Medearis then started to pull Whiting's pants down. He locked all of the car doors, crawled over to the passenger seat, unfastened his own pants, and got behind Whiting. Whiting continued to plead for him to stop, but Medearis responded by saying, "all I want to do is to make love to you."

Medearis pulled Whiting's jacket off over her head and sucked her breasts, while Whiting screamed "no." Medearis then got on top of Whiting, spread her legs, forcing one of her legs up. Medearis performed oral sex on Whiting, while she tried to push him away. Medearis came back up, forced Whiting's hands behind her head, and then drove his penis into Whiting's vagina, saying he "always wanted to do this." Medearis then removed his penis from her vagina and inserted his fingers inside of her vagina, while Whiting continued to scream. After removing his fingers, Medearis inserted his penis again and quickly pulled it out, commenting that he could not "f* * * " her. Medearis then smeared his fingers across Whiting's face, sneering, "[t]his is how you f* * *ing smell." Medearis returned to the driver's seat and told Whiting to "get the f* * * out." Whiting then exited the car and walked to Medearis' mother's house. Once there, Cheryl Medearis' boyfriend took Whiting to her aunt's house. Upon her arrival at her aunt's house, Whiting was crying and her hair was "all messed up." Whiting was cold, and when her aunt tried to zip up her coat, there was no zipper.⁷

Whiting's aunt took Whiting to the Indian Health Service Hospital in Rosebud, where she was seen by Dr. Zijad Sabovic (Dr. Sabovic) at 6:10 a.m. During his examination, Dr. Sabovic observed that Whiting had fresh bruises on both of her knees, on her left elbow, and on her left shoulder. In addition to observing redness on Whiting's left thigh, Dr. Sabovic also observed an excoriation of the vaginal...