United States v. Lavictor

848 F.3d 428

UNITED STATES of America, Plaintiff–Appellee,

v.Lynn Michael LAVICTOR, Defendant–Appellant.

No. 15-1580

United States Court of Appeals, Sixth Circuit.

Argued: November 29, 2016

Decided and Filed: February 3, 2017

ARGUED: Andrew Marino, VANDERBILT LAW SCHOOL APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellant. Jeff Davis, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: C. Mark Pickrell, VANDERBILT LAW SCHOOL APPELLATE LITIGATION CLINIC, Nashville, Tennessee, Christopher F. Cowan, THE LAW OFFICE OF C. F. COWAN, P.L.L.C., Columbus, Ohio, for Appellant. Jeff Davis, Hannah Bobee, UNITED STATES ATTORNEY' S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: DAUGHTREY, CLAY, and COOK, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendant Lynn Michael LaVictor appeals denial of his motions for a judgment of acquittal and a new trial under Federal Rule of Criminal Procedure 29 and Rule 33, respectively.¹ He also appeals a number of evidentiary rulings made by the district court during his trial for the sexual assault of his girlfriend, hereinafter referred to as "C.B." For the reasons set forth below, we AFFIRM the district court's judgment.

BACKGROUND

I. Factual background

On June 27, 2014, after a night of heavy drinking, LaVictor and C.B. returned to LaVictor's mother's house on the Sault Ste. Marie Tribe of Chippewa Indians Reservation. Around three in the morning, LaVictor contacted emergency services to notify them that C.B., his girlfriend, was bleeding from her vagina. Following a brief conversation, the dispatcher told LaVictor to monitor C.B. and call back if her condition failed to improve. Approximately thirty minutes later, LaVictor called again to request assistance.

Tribal police arrived on scene with emergency personnel to examine C.B. LaVictor informed the officer on the scene that he and C.B. had engaged in consensual sex on the couch. Blood stains were identified on the living room carpet. At the time, C.B. told the first responders that while having sex, LaVictor became angry and then stuck an unknown object inside of her. C.B. was taken to the emergency room while LaVictor remained in his mother's house.

Upon her arrival to War Memorial Hospital at 4:30 in the morning, C.B. was admitted directly to the emergency room because of internal vaginal bleeding and swelling. Dr. Nelu Cristof, a gynecologist, performed surgery on C.B. to repair a two-centimeter perineal laceration, as well as lacerations extending up the vaginal mucosa and underlying fascia. Testifying at trial, Dr. Cristof expressed doubt that an erect penis caused C.B.'s injuries. Medical staff continued to question C.B. about the extent of her injuries and the events of the previous night. Nurse Christina Simpson testified that C.B. stated that LaVictor had put something inside of her. C.B. would later inform Nurse Simpson that LaVictor inserted a wine bottle into her vagina and anus. Although C.B. declined a sexual assault examination, the police were contacted.

Tribal police officer Daniel Menard arrived at the hospital to interview C.B. He observed her lying in bed, crying, and complaining of pain. C.B. began to cry vociferously as soon as Officer Menard inquired about LaVictor and the incident in question. Recounting the events of the previous night, C.B. told the officer that she and LaVictor went to several bars and the next thing she could remember was waking up naked on LaVictor's floor. She mentioned to Officer Menard that something did not feel right, but refused to divulge any further information. Instead, C.B. asked Officer Menard to leave. He complied and went directly to LaVictor's home to interview him. LaVictor reiterated that the sex from the previous night was consensual. He explained that they regularly enjoy "crazy sex" which frequently "turns rough." At the time, LaVictor denied using a foreign object inside of C.B., instead claiming that C.B. commonly bled from her vagina during sexual intercourse. When Officer Menard returned to the hospital, C.B. asked him to retrieve her personal items from LaVictor's residence. In the course of doing so, LaVictor asked Officer Menard whether he could see C.B. Upon being informed of LaVictor's desire to visit, C.B. started visually trembling and explicitly requested that he be denied entry.

Dr. Madeleine Guevara, an obstetrician-gynecologist, was assigned to provide postoperative care to C.B. Initially, C.B. was reticent and scared. Eventually, she confided to Dr. Guevara that she had nightmares. Expressing fear that LaVictor would assault her, she acknowledged her involvement in a progressively worsening violent domestic relationship with LaVictor and noted that this situation would be the last straw. C.B. denied that her injuries arose because of "frisky sex;" rather, she stated that LaVictor caused her injuries by placing a wine bottle inside of her. Nonetheless, C.B. was unwilling to press charges.

The day after speaking to Officer Menard, LaVictor called and requested an in-person meeting, which transpired at the police station. Upon reiterating the consensual nature of his and C.B.'s sexual encounter, LaVictor confessed to using a sex toy with C.B. He brought it along to show Officer Menard. The toy was shaped in the form of a life-sized rubber arm and fist.

In light of mounting evidence of abuse, hospital personnel persuaded C.B. to talk with a counselor from a local domestic abuse center on June 29, 2014. After her conversation with the counselor, C.B. requested to speak to Officer Menard. Their conversation recounted the events of the previous night and was memorialized in a five-page affidavit C.B. wrote out. On the basis of her statement, tribal police executed a search warrant of LaVictor's home, seizing the sex toy, a blood soaked rug, and two empty wine bottles.

II. Procedural background

A. Grand Jury testimony

On July 22, 2014, C.B. testified before the grand jury. During the proceedings, C.B. admitted writing a five-page statement that chronicled the sexual assault. Specifically, she testified:

Q: And then you state that there is a moment after midnight where I don't recall?

A: Yes

Q: And then it states that, I remember laying on the floor naked?

A: I wrote that, yes, that's correct.

Q: Okay. I am—Yes, we are going over it. You immediately asked for your clothes. Do you see that?

A: Um-h'm.

Q: Okay. You agree with that? Lynn was already furious. He said, no, you are not getting your clothes. I know this is difficult, and if you have to take a break, just let me know. We can stop. Okay? Do you see that?

A: Yes.

Q: Okay. Then he accuses you, when you ask for your clothes, of wanting to see someone else; correct? Yes or no? Remember, you have to—

A: Yes. It is, yes. It is true, yes.

(R. 165-5, Tr., PageID # 2780). The testimony continues:

Q: Okay. And then he continues to get upset. Then you state that he forced your legs open. Do you see that?

A: Yes.

Q: And then you state, I don't feel like doing that.

A: Yeah.

Q: And you put in there, meaning sex?

A: Yes.

Q: Okay. Then he gets upset – more upset and he says you are mine. You are doing whatever I want. Do you see that?

A: Yes.

Q. That's what he told you?

A: Yep?

Q: He pushed his fingers into your vagina?

A: Yes, I remember it.

Q. Okay, and you yelled, stop it. It hurts. Why do you have to do that so hard? Do you see that?

A: Yes.

Q: And his response was, never mind, shut up. And you again say, you are hurting me?

A: Yeah, that's—

Q: And then you—he—You state that he opened me so roughly like it wasn't real skin. That's how it felt to you?

A: Oh, my God. Yes.

Q: And then you tried to get up, and he is more angry and he says, lay down, bitch, put his elbow along your eyebrow area, twisting you head sideways? Do you see what you said there, I closed my eyes and I knew this was going to be a battle ...

A: Um-h'm

Q:—again?

A: Yeah.

(Id. at 2781–83). C.B. further acknowledged that LaVictor slapped her, cursed at her, and forced himself inside of her without consent. (Id. at 2783) She kept yelling at him to stop and that he was hurting her, but he refused to do so until her vagina bled. (Id. ) At the conclusion of her testimony, the prosecutor offered C.B. several opportunities to supplement or amend her testimony. C.B. simply stated that she loved LaVictor and did not want anything bad to happen to him. (Id. at 2788) She informed the prosecutor that the affidavit was written in the hospital at a time she was highly emotional and angry. But at no point did she recant her testimony.

B. Pre-trial proceedings

On July 22, 2014, a five-count indictment charged LaVictor with, inter alia : (1) attempted sexual abuse pursuant to 18 U.S.C. § 2242(2)(B) ("Count One"); (2) aggravated sexual abuse pursuant to 18 U.S.C. § 2241(a)(1) ( "Count Two" and "Count Three"); (3) assault resulting in serious bodily injury pursuant to 18 U.S.C. § 113(a)(6) ("Count Four"); and, (4) domestic assault by a habitual offender pursuant to 18 U.S.C. § 117 ("Count Five"). LaVictor was arrested on July 30, and arraigned a few days later by a magistrate judge who ordered that he have no contact with C.B.

Despite this order, LaVictor sent a letter nominally addressed to his mother with an attached affidavit that he requested C.B. copy in her own handwriting. It stated:

I [C.B.] do solemly [sic] swear that the statement I'm writing is the absolute truth. At no time has Lynn LaVictor abused me violently in any way shape or form. Furthermore Lynn LaVictor has never abused me sexually ever. All sexually [sic] activity between Lynn LaVictor has at all times been consentually [sic]. All statements incriminating Lynn LaVictor of sexuall [sic] misconduct were made while I was under the influence and have no validity. I love Lynn LaVictor and am absolutely in no way in fear of him in any way shape or form. These alledged [sic] allegations are categorically untrue. In regards to case #2:14-CR-00030-RHB counts 1 through 5. Date it & have notarized [sic.]

(Gov't...