F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 12 1997 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. No. 96-4103 (D.C. No. 95-CR-80-B) TONY RABBIT, (District of Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BALDOCK, Circuit Judge, EBEL, Circuit Judge, and MCWILLIAMS, Senior Circuit Judge.
In a one-count indictment filed in the United States District Court for the District
of Utah, Tony Rabbit, an enrolled member of the Ute Mountain Ute Indian Tribe, was
charged with knowingly causing another person, a member of the Navajo Nation, to
engage in a sexual act by using force against that other person, such occurring within
Indian Country and in violation of 18 U.S.C. §§ 2241(a) and 1153(a). A jury convicted
Rabbit of the crime charged and he was sentenced to imprisonment for 151 months, to be
followed by three years of supervised release. Rabbit appeals. We affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 On appeal, Rabbit urges two matters: (1) the evidence is legally insufficient to
support the jury’s verdict of guilty as charged; and (2) the district court erred in its
handling of the testimony of a government witness, Kevin Patrick, a criminalist for the
Utah State Crime Laboratory. In support of his insufficiency of the evidence argument,
counsel asserts that the testimony of the victim, Esther Haycock, was so internally
inconsistent and uncorroborated in important details that the jury’s verdict should not be
permitted to stand.
Without going into unnecessary detail, Haycock testified that Rabbit sexually
assaulted her on a country road in Utah and then fled the scene in her truck.1 She said
that although there was sexual penetration, she did not know whether Rabbit ejaculated.
Rabbit testified that he did not have sexual contact with Haycock, although they did have
an argument in which each slapped the other and that for some unknown reason he fled
the scene in Haycock’s truck. Rabbit was at large for three to four months before his
eventual arrest.
Several witnesses testified that they found Haycock on the country road crying and
claiming that she had been raped. Haycock, incidentally, had her left leg in a cast and
was on crutches. The crutches were in the truck when Rabbit fled. Haycock had to crawl
up the country road to find help.
1 Haycock testified that she picked up Rabbit, who was hitchhiking along a country road after his car had stalled.
-2- Two doctors testified as to the results of their examination of Haycock. According
to the government, the doctors’ testimony tended to corroborate Haycock’s testimony.
However, according to defense counsel, such testimony in reality demonstrates the
inconsistences in Haycock’s testimony. All of which indicates to us that Rabbit’s guilt or
innocence was a fact question to be resolved by the jury. Certainly Haycock’s testimony,
if believed by the jury, as it obviously was, is sufficient to support its verdict. In a case of
this type, it would appear that a jury may convict on the uncorroborated testimony of the
victim. See generally United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973)
(since most rape cases involve circumstantial corroboration and not direct corroboration,
jurors, not the appellate court, are charged with assessing the credibility of witnesses).
See also United States v. Bear Runner, 574 F.2d 966 (8th Cir. 1978) (at least 35 states
reject any corroboration requirement for rape); United States v. Shipp, 409 F.2 33 (4th
Cir. 1969) cert. denied, 396 U.S. 864 (1969) (a jury in a case of this nature may convict
on the uncorroborated testimony of complainant after considering all of the evidence);
United States v. Smith, 303 F.2d 341 (4th Cir. 1962) (a jury in a rape case may convict on
the uncorroborated testimony of the complainant “alone”). In the instant case, certainly
there was some corroborating evidence. Two women who found Haycock on the country
road testified to her physical and emotional condition. Additionally, the two doctors who
examined her testified as to her condition.
-3- Counsel also argues that the district court mishandled the testimony of Kevin
Patrick, a criminalist with the Utah State Crime Laboratory. One of the examining
doctors had prepared a rape kit which Patrick later analyzed for physiological fluids and
pubic hairs. Jumping ahead, Patrick subsequently testified that he found no presence of
either in the rape kit given him. The government accordingly did not propose to call
Patrick as a witness and had not listed him on their list of potential witnesses.
As indicated, at trial Rabbit’s defense was that he did not commit a sex act with
Haycock and his counsel suggested to the jury as early as his opening statement that the
“absence of semen” proved there was no sexual contact.
During the trial, the prosecution decided that it would call Patrick as a witness and
so advised defense counsel. In this regard, outside the presence of the jury, the following
brief colloquy occurred between court and counsel:
MS. BEARNSON [prosecutor]: There may be one additional witness whose name was provided and who is not on the witness list. That is Kevin Patrick. THE COURT: Patrick? MR. BOOKER [defense counsel]: She has discussed that with me and we don’t have any objection. THE COURT: Okay.
In response to direct examination, Patrick described himself as a “criminalist . . .
who analyzes evidence as it pertains to criminal cases. My area of expertise is in serology
where I identify physiological fluids to certain individuals.” He stated that he had
analyzed a rape kit of materials taken from Haycock and her clothes and that he found
-4- “no seminal fluid” on any of the items in the kit. No objection was made to that
testimony. He was then asked in what percentage of the cases “you have analyzed . . . is
there a negative result.” Again with no objection, he stated that in 60% of the cases he
had analyzed “we don’t have any position [sic] findings.” He was then asked, based on
his “training and expertise,” what factors came into play regarding whether there will be a
positive laboratory finding. His answer was “numerous factors.”
It was at this point that defense counsel first objected to Patrick’s testimony. After
the jury was excused, considerable colloquy between court and counsel ensued
concerning Patrick’s proposed testimony. The upshot of this colloquy was that the district
court would only allow Patrick’s testimony insofar as it was based on his “personal
experience.” After the jury was called back into the courtroom, the prosecutor asked only
a couple of additional questions of Patrick.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 12 1997 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. No. 96-4103 (D.C. No. 95-CR-80-B) TONY RABBIT, (District of Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BALDOCK, Circuit Judge, EBEL, Circuit Judge, and MCWILLIAMS, Senior Circuit Judge.
In a one-count indictment filed in the United States District Court for the District
of Utah, Tony Rabbit, an enrolled member of the Ute Mountain Ute Indian Tribe, was
charged with knowingly causing another person, a member of the Navajo Nation, to
engage in a sexual act by using force against that other person, such occurring within
Indian Country and in violation of 18 U.S.C. §§ 2241(a) and 1153(a). A jury convicted
Rabbit of the crime charged and he was sentenced to imprisonment for 151 months, to be
followed by three years of supervised release. Rabbit appeals. We affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 On appeal, Rabbit urges two matters: (1) the evidence is legally insufficient to
support the jury’s verdict of guilty as charged; and (2) the district court erred in its
handling of the testimony of a government witness, Kevin Patrick, a criminalist for the
Utah State Crime Laboratory. In support of his insufficiency of the evidence argument,
counsel asserts that the testimony of the victim, Esther Haycock, was so internally
inconsistent and uncorroborated in important details that the jury’s verdict should not be
permitted to stand.
Without going into unnecessary detail, Haycock testified that Rabbit sexually
assaulted her on a country road in Utah and then fled the scene in her truck.1 She said
that although there was sexual penetration, she did not know whether Rabbit ejaculated.
Rabbit testified that he did not have sexual contact with Haycock, although they did have
an argument in which each slapped the other and that for some unknown reason he fled
the scene in Haycock’s truck. Rabbit was at large for three to four months before his
eventual arrest.
Several witnesses testified that they found Haycock on the country road crying and
claiming that she had been raped. Haycock, incidentally, had her left leg in a cast and
was on crutches. The crutches were in the truck when Rabbit fled. Haycock had to crawl
up the country road to find help.
1 Haycock testified that she picked up Rabbit, who was hitchhiking along a country road after his car had stalled.
-2- Two doctors testified as to the results of their examination of Haycock. According
to the government, the doctors’ testimony tended to corroborate Haycock’s testimony.
However, according to defense counsel, such testimony in reality demonstrates the
inconsistences in Haycock’s testimony. All of which indicates to us that Rabbit’s guilt or
innocence was a fact question to be resolved by the jury. Certainly Haycock’s testimony,
if believed by the jury, as it obviously was, is sufficient to support its verdict. In a case of
this type, it would appear that a jury may convict on the uncorroborated testimony of the
victim. See generally United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973)
(since most rape cases involve circumstantial corroboration and not direct corroboration,
jurors, not the appellate court, are charged with assessing the credibility of witnesses).
See also United States v. Bear Runner, 574 F.2d 966 (8th Cir. 1978) (at least 35 states
reject any corroboration requirement for rape); United States v. Shipp, 409 F.2 33 (4th
Cir. 1969) cert. denied, 396 U.S. 864 (1969) (a jury in a case of this nature may convict
on the uncorroborated testimony of complainant after considering all of the evidence);
United States v. Smith, 303 F.2d 341 (4th Cir. 1962) (a jury in a rape case may convict on
the uncorroborated testimony of the complainant “alone”). In the instant case, certainly
there was some corroborating evidence. Two women who found Haycock on the country
road testified to her physical and emotional condition. Additionally, the two doctors who
examined her testified as to her condition.
-3- Counsel also argues that the district court mishandled the testimony of Kevin
Patrick, a criminalist with the Utah State Crime Laboratory. One of the examining
doctors had prepared a rape kit which Patrick later analyzed for physiological fluids and
pubic hairs. Jumping ahead, Patrick subsequently testified that he found no presence of
either in the rape kit given him. The government accordingly did not propose to call
Patrick as a witness and had not listed him on their list of potential witnesses.
As indicated, at trial Rabbit’s defense was that he did not commit a sex act with
Haycock and his counsel suggested to the jury as early as his opening statement that the
“absence of semen” proved there was no sexual contact.
During the trial, the prosecution decided that it would call Patrick as a witness and
so advised defense counsel. In this regard, outside the presence of the jury, the following
brief colloquy occurred between court and counsel:
MS. BEARNSON [prosecutor]: There may be one additional witness whose name was provided and who is not on the witness list. That is Kevin Patrick. THE COURT: Patrick? MR. BOOKER [defense counsel]: She has discussed that with me and we don’t have any objection. THE COURT: Okay.
In response to direct examination, Patrick described himself as a “criminalist . . .
who analyzes evidence as it pertains to criminal cases. My area of expertise is in serology
where I identify physiological fluids to certain individuals.” He stated that he had
analyzed a rape kit of materials taken from Haycock and her clothes and that he found
-4- “no seminal fluid” on any of the items in the kit. No objection was made to that
testimony. He was then asked in what percentage of the cases “you have analyzed . . . is
there a negative result.” Again with no objection, he stated that in 60% of the cases he
had analyzed “we don’t have any position [sic] findings.” He was then asked, based on
his “training and expertise,” what factors came into play regarding whether there will be a
positive laboratory finding. His answer was “numerous factors.”
It was at this point that defense counsel first objected to Patrick’s testimony. After
the jury was excused, considerable colloquy between court and counsel ensued
concerning Patrick’s proposed testimony. The upshot of this colloquy was that the district
court would only allow Patrick’s testimony insofar as it was based on his “personal
experience.” After the jury was called back into the courtroom, the prosecutor asked only
a couple of additional questions of Patrick. Patrick was asked how many rape kits he had
previously examined, and he said “over a l,000.” He then stated, in response to query,
that about 60% of the rape kits that he had personally analyzed did not have a positive
finding with regard to seminal fluid.
We find no reversible error in the district court’s handling of Patrick. In the first
place, counsel clearly indicated that he had no objection to the government calling Patrick
as a witness even though his name was not on the list of witnesses. And there was no
objection to Patrick’s testimony until after he had stated that there was no evidence of
seminal fluid in about 60% of the rape kits he had previously examined. (Just what this
-5- proved, or disproved, is debatable.) We do not regard that Patrick was testifying as an
expert witness. After the district court’s ruling on the matter, Patrick’s testimony was
quite clearly based on, and limited to, the 1,000 analyses he had himself made of rape
kits. All things considered, we find no reversible error in the district court’s handling of
Patrick.
Judgment affirmed.
ENTERED FOR THE COURT
Robert H. McWilliams Senior Circuit Judge
-6-