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United States v. Cobenais

United States Court of Appeals, Eighth Circuit

August 22, 2017

United States of America Plaintiff-Appellee
Dana Lee Cobenais Defendant-Appellant

          Submitted: May 12, 2017

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.

          SMITH, Circuit Judge.

         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)(1), 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 court[1] 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.

         I. Background

         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 "[t]he blood and the injuries in this case was the result of a consensual sexual encounter between [A.J.] and Dana Cobenais . . . . It wasn't the result of a rape. It wasn't the result of forced sex." (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 "Cobenais did not rape [A.J.] and he didn't force himself on her. This happened as the result of two participants engaging in a consensual sexual act." (Emphasis added.)

         A. Trial Testimony

         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, "[Cobenais] slapped me and he pulled my pants down. And I told him to stop, but he wouldn't stop. . . . He put his hands inside me. . . . He was like slapping me [in the face] and he told me to shut up." 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. "was bleeding. She was clotting. There w[ere] large clots, which was amazing to see. . . . [They were] around maybe 6, 7 centimeters or inches in diameter." 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. "was in shock. Confused, wanting to go home. Kept covering her face. Didn't want people to see her. Going in and out of crying. And then just talking words like we couldn't understand what she was saying. And then just being quiet again."

         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 "laceration on the outside of her body and . . . bleeding acutely vaginally. She had large clots that were present." 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 "that while they were having sex [A.J.] began to start bleeding so he stopped. He said that she asked him why he had stopped and [Cobenais] told [Agent Tjernagel] it was because she was bleeding." 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.

         Cobenais also testified at trial. He testified that he and A.J. sat in her car outside of his mother's home "[f]or a number of hours" drinking, listening to music, and talking. He confirmed that they "started talking about having sex" and then drove to the "telephone building" to have sex, which is "on the way to [Cobenais's] grandmother's house." Cobenais testified that while at the telephone building,

[w]e get in the back seat. She takes her off her pants and underwear. I take off my pants and underwear. And I start feeling her up. I got my fingers in there. Got my hand in there. We keep going for a while. I see some blood. I stop. She asked me why I stop. I told her. So she hops in the front seat, passenger. I jump in the driver's seat and I drive to my grandma's and we go inside. She goes in the basement. She said she's going to go to sleep. So I make something to eat. And then I think she might have come back up, went to the bathroom or something. When I sit on the couch she comes over and sits on the couch; and I end up going to sleep there and that's where I wake up.

         Cobenais testified that upon awaking in the morning, A.J. was gone. He then discovered that his cell phone and $20 was missing.

         Cobenais described the encounter as consensual. Specifically, he confirmed that he and A.J. "both took off [their] clothes together, " "talked about [it] before it happened, " and participated in the act. Cobenais admitted to putting his "whole fist" inside of A.J. without her "put[ting] up any fight." At no time did he "force [himself] into her vagina" or "use any force to get into her vagina." He confirmed that once A.J. started bleeding, he stopped. Cobenais testified that A.J. never told him that the insertion of his entire fist into her vagina hurt, despite her incurring three lacerations.

         B. Jury Instructions

         During the final charge conference, the court reviewed the proposed jury instructions with the parties. The parties ultimately agreed on the elements-of-the-offense instruction, which provided in pertinent part:

The crime of aggravated sexual abuse has four essential elements, each of which the Government must prove beyond a reasonable doubt. The [first two of ...

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