United States v. Cobenais
| Decision Date | 22 August 2017 |
| Docket Number | No. 16-3420,16-3420 |
| Parties | UNITED STATES of America, Plaintiff-Appellee v. Dana Lee COBENAIS, Defendant-Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
James Lackner, U.S. ATTORNEY'S OFFICE, Saint Paul, MN, Clifford Ben Wardlaw, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN, for Plaintiff-Appellee.
Dana Lee Cobenais, Pro Se.
Douglas Olson, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Minneapolis, MN, for Defendant-Appellant.
Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
A jury convicted Dana Lee Cobenais of one count of aggravated sexual abuse, in violation of 18 U.S.C. §§ 1151, 1153(a), 224l(a)(l), 2246(2)(A), and 2246(2)(C). On appeal, Cobenais argues that the theory-of-defense jury instruction mentioning consent inaccurately stated the elements of the offense and the defense theory of the case. He also argues that the district court improperly curtailed his closing argument. We hold that the district court1 neither abused its discretion in giving the consent instruction nor in refusing counsel's request for additional time to complete closing argument and therefore affirm the judgment of the district court.
Cobenais, an Indian, was charged with one count of aggravated sexual abuse against A.J., who lived on the Red Lake Indian Reservation. At trial, the government's theory of the case posited that when A.J. rebuffed Cobenais's demand for sex, "[h]e would not take no for an answer" and proceeded to backhand A.J., remove her clothes, and "shove[ ] his fingers into her vagina causing her injuries." Cobenais's theory of the case—as shown during his counsel's opening statement—asserted that (Emphasis added.) Cobenais's counsel argued that Cobenais "didn't force himself on [A.J.], and the bleeding was the result of this consensual sexual act." (Emphasis added.) Cobenais's counsel told the jury that Cobenais would describe the event "as a consensual sexual encounter which resulted in blood in this case." (Emphasis added.) Cobenais's counsel ended his opening statement by stating that (Emphasis added.)
During trial, A.J. testified to the events of March 13–14, 2015. On March 13, A.J. went to the home of her uncle, Lester Lussier, and Cobenais was there. A.J. had seen Cobenais approximately four or five times before. Later that night, the three drove to Cobenais's grandmother's house in A.J.'s car so that Cobenais could visit his cousin. After arriving, Lussier left with someone else. Cobenais entered his grandmother's house, while A.J. waited outside. Cobenais soon came back outside, and he and A.J. "sat around outside and ... were drinking a little bit." According to A.J., she drank "a couple mixes," and remained there about 20 to 30 minutes.
At approximately 2:00 a.m., A.J. got into her car, and Cobenais followed—uninvited. A.J. asked Cobenais to get out of the car and told him that she wanted to go home. Cobenais refused. A.J. waited, but Cobenais still refused to get out of the car. A.J. testified that she "decided to drive off because [Cobenais] wasn't, like, trying to be touching [her] or doing anything." Cobenais told A.J. "that he was going to have somebody else pick him up" at an intersection, so A.J. stopped at the stop sign. A.J. became suspicious though, "because [Cobenais] didn't call anybody for a ride." A.J. again asked Cobenais to get out of her car, but he again refused.
At that point, A.J. testified, Cobenais assaulted her. She testified, A.J. defended herself "[b]y pushing him and kicking him." A.J. told him no and attempted to fight him off. She testified, "I didn't consent to any of it." A.J. could not recall much of what happened thereafter. She "remember[ed] coming to ... in the passenger seat, and [Cobenais's] hands were up like (indicating) and [A.J.] was ... really bleeding." Cobenais "had ... blood all up his hands," and his hands had been "inside" of A.J. She was bleeding "[b]ecause [Cobenais] used his whole hand" "[t]o hurt [A.J.], to go inside [her]." A.J. testified that Cobenais injured her by forcibly putting his hand inside her vagina. A.J. did not know why Cobenais stopped the assault, but after he stopped, he got out of the car. A.J. then left to go home.
A.J. ran out of gas while driving home. Her car stopped in the middle of the road. She called 911 and reported that her car ran out of gas. A.J. explained that she did not tell the 911 operator about the sexual assault because she was scared. Red Lake Police Officer Rennel Parish responded to the scene. She testified that in addition to her experience as a police officer, she has 16 years' experience as an emergency medical technician. After A.J. exited the car, Officer Parish noticed a sawed-off shotgun underneath the driver's seat. Officer Parish "grabbed the gun and ... backed up." Officer Parish then noticed that A.J. was bleeding profusely. Officer Parish testified, "There was so much blood that was coming out of her and I didn't know where it was coming from." Officer Parish asked A.J. what happened and where the blood was coming from, and A.J. responded that she did not know. Officer Parish asked A.J. "if she had been shot because there was so much blood, just it was like turning on a faucet." Officer Parish then asked her whether she was on her period or having a miscarriage, and A.J. responded no. Finally, Officer Parish asked her again what happened, and A.J. told Officer Parish that she was raped. "She was very upset when she said that.
The more questions [Officer Parish] asked her, the more upset she was getting." At first, A.J. said that her boyfriend raped her, but then she said it was someone else. She quit answering questions because she was upset. Officer Parish believed that A.J. went into shock.
A.J. told the officer that she wanted to go home, but Officer Parish instead called for an ambulance. Officer Parish followed the ambulance to Red Lake Hospital. A.J. was crying and "pretty upset." At one point, she passed out. She was distraught and hysterical. At the hospital, A.J. gave an account of the episode to Officer Parish involving "two men wearing dark clothing." Officer Parish testified that she did not believe this account. After that, A.J. stopped talking to Officer Parish.
The registered nurse who attended A.J. in the emergency room (ER) at Red Lake Hospital testified that A.J. was "bleeding heavily" when she saw her and that "[i]t was astonishing" to see "a patient in this condition." According to the nurse, A.J. The nurse had "never seen anything like this in [her] years of nursing." While in the ER, A.J. tried to get off the gurney to go home, but she collapsed. The nurse testified that A.J.
While at Red Lake Hospital, A.J. continued bleeding. She was so seriously injured that she was transferred to the Bemidji Hospital for "specialized care." Upon A.J.'s arrival to the Bemidji Hospital, she was seen by a Sexual Assault Nurse Examiner (SANE). The SANE testified that A.J. was "acutely injured," having a The SANE had never seen an injury like A.J.'s injury before. She "called the [ER] doctor in to come and see [A.J.] due to the extent of the injury." Thereafter, the ER doctor called in an obstetrician/gynecologist who had to surgically repair the vaginal lacerations.
Upon examination by Special Agent Jonathan Tjernagel of the Federal Bureau of Investigation (FBI), Cobenais admitted having sex with A.J. in the backseat of her car. According to Agent Tjernagel, Cobenais explained that he and A.J. had driven to his mother's house in A.J.'s car and sat outside of his mother's home in that car. Cobenais reported that after he and A.J. "hung out for a while" and drank alcohol, they then had sex. Cobenais told Agent Tjernagel Cobenais additionally told Agent Tjernagel that A.J. "asked him to continue having sex with her." Cobenais told Agent Tjernagel that he declined to continue.
Minnesota Bureau of Criminal Apprehension Investigator Philip Hodapp, who examined A.J.'s car, testified to finding blood on the driver's seat and on the front passenger's seat. Although he could not testify as to the amount of blood, he testified that a blood pattern appeared on the driver's seat and on the floor board of the driver's side. He also found a blood pattern on the front passenger's seat. He found no blood on the backseat cushion. He found a droplet of blood in the center console in the backseat.
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