United States v. Willis - 826 F.3d 1265 (10th Cir. 2016)

Rule:

Under Fed. R. Evid. 413, "sexual assault" includes any conduct prohibited by 18 U.S.C.S. ch. 109A. Among other things, ch. 109A criminalizes "abusive sexual contact," i.e., sexual contact achieved by using force or by threatening or placing the other person in fear of death, serious bodily injury, or kidnapping. 18 U.S.C.S. §§ 2241(a), 2244(a)(1). "Sexual contact," in turn, is defined as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. 18 U.S.C.S. § 2246(3). And the level of force necessary under § 2251(a)(1) includes such physical force as is sufficient to overcome, restrain or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim.

Facts:

Appellant Ivan Bennett Willis was charged with aggravated sexual abuse committed in Indian country. In a pretrial motion, the government gave notice of its intent to offer evidence pursuant to Rule 413 of the Federal Rules of Evidence of two prior sexual assaults involving appellant while he was a juvenile. Appellant filed a motion to exclude his juvenile records and all information gleaned from those records, including the Rule 413 evidence. He also moved to suppress statements he made during a custodial interview with two federal agents. Appellant also moved under Rule 412 to admit evidence of specific instances of the victim’s sexual behavior. The district court admitted the Rule 413 evidence and denied appellant’s remaining motions. The parties tried the case to a jury, where the victim testified that the appellant intentionally made sexual advances toward the victim, despite the latter’s objections. The jury found appellant guilty. Appellant challenged his conviction. 

Issue:

1. Was the appellant’s conviction proper under the circumstances? 
2. Should the court exclude the Rule 413 evidence? 

Answer:

1) Yes. 2) No.

Conclusion:

The court held that the district court did not abuse its discretion in determining that an incident qualified as a sexual assault for purposes of Fed. R. Evid. 413, as the victim testified defendant intentionally touched her breasts and got on top of her despite her protests, and after he stopped, he told the victim not to tell anyone. The court further held that the mere fact that defendant was a minor at the time of his alleged sexual assaults against two victims did not render evidence of those events inadmissible under Fed. R. Evid. 403, and it could not be said that his status as a juvenile conclusively outweighed other factors showing the probative value of the evidence. Moreover, the court averred that the district court did not err in excluding evidence that the victim had sex with her boyfriend before her encounter with defendant, as defendant was able to introduce his defense theory even without evidence of the victim's sexual behavior.