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The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2963

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Sonny Ray Escarsega, also *

known as Sonny Ray Ruiz, * [UNPUBLISHED]

*

Appellant. *

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Submitted: January 11, 2006

Filed: June 5, 2006

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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.

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PER CURIAM.

After a jury trial, Sonny Ray Escarsega was convicted of one count of

kidnapping Victoria Roubideaux, in violation of 18 U.S.C. §§ 1153 and 1201(a)(2);

two counts of causing her to engage in a sexual act by using threats or force, in

violation of 18 U.S.C. §§ 1153, 2241(a), and 2246(2); and four counts of assaulting

her with a dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3). The

district court1

 imposed concurrent sentences totaling 216 months imprisonment and
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5 years supervised release. Escarsega’s counsel has moved to withdraw and filed a

brief under Anders v. California, 386 U.S. 738 (1967). After careful review of the

record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we ordered additional briefing

regarding a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). For the reasons

discussed below, we affirm. 

Escarsega argues the evidence was insufficient to sustain the jury convictions.

When considering such a claim, we view the facts in the light most favorable to the

government, giving it the benefit of drawing all reasonable inferences from the

evidence. See United States v. Goodlow, 105 F.3d 1203, 1205 n.2 (8th Cir. 1997).

We conclude the evidence was clearly sufficient to support the convictions for

assaulting Roubideaux with a dangerous weapon, as she testified Escarsega stabbed

her with a knife, hit her in the head with a telephone receiver, kicked her with shod

feet, and cut her back with a razor blade.

As to the sexual-assault convictions, we conclude a reasonable jury could find

beyond a reasonable doubt that Escarsega forced Roubideaux to engage in a sexual

act. See 18 U.S.C. § 2241(a) (unlawful to knowingly cause another person to engage

in sexual act by using force or threat against that person); United States v. Gabe, 237

F.3d 954, 961 (8th Cir. 2001) (force is established if defendant overcomes, restrains,

or injures victim, or if defendant uses threat of harm sufficient to coerce or compel

submission). Although Roubideaux testified at trial she had consensual sex with

Escarsega, she also admitted at trial she had told the FBI and testified before the grand

jury that he forced her to have sex, and that she was afraid to refuse him. The jury

was free to credit her prior statements. Cf. United States v. Renville, 779 F.2d 430,

439-40 (8th Cir. 1985) (discussing hearsay exception in child-sexual-abuse case;

where declarant admits she made accusations to police, but testifies these earlier

statements were lies, jury faces routine question of credibility). In addition, the

evidence clearly established that Escarsega assaulted Roubideaux numerous times,

including once when she refused to have sex with him. See United States v.
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Nazarenus, 983 F.2d 1480, 1485 n.1 (8th Cir. 1993) (noting there was abundant

evidence that victim was physically forced to engage in sexual acts, including

testimony regarding how badly victim was beaten and traumatized after encounter

with defendant).

As to the kidnapping conviction, we conclude a reasonable jury could find

beyond a reasonable doubt that Escarsega held Roubideaux against her will. See 18

U.S.C. § 1201(a)(2) (unlawful to kidnap and hold any person within territorial

jurisdiction of United States); United States v. McCabe, 812 F.2d 1060, 1061 (8th

Cir.) (victim’s lack of consent is fundamental element of kidnapping), cert. denied,

484 U.S. 832 (1987). Although Roubideaux testified at trial she chose to stay with

Escarsega, she also admitted at trial she had told the FBI and testified before the grand

jury that he would not let her leave and threatened to kill her if she left. Again, the

jury could discredit her trial testimony, but credit her prior statements.

Next, Escarsega argues the district court erred in denying his motion to suppress

evidence obtained pursuant to a search warrant. In his application for the warrant and

at the suppression hearing, FBI Special Agent Mackey testified that after interviewing

Roubideaux, he went to the apartment where she stated she had been held and

assaulted. There, Edward Charging Elk, Sr., initially did not consent to a search of the

apartment, but later allowed officers to search for Escarsega. During this search,

Mackey observed evidence of the assaults against Roubideaux, and obtained the

search warrant in part based upon his observations. 

We conclude the district court properly denied the motion to suppress. Even

though he did not lease the apartment, Charging Elk had lived there for about five

months prior to the search and thus had common authority over the apartment. See

Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (warrantless search of residence does

not violate Fourth Amendment if voluntary consent is obtained from third party who

possesses common authority over property); United States v. Matlock, 415 U.S. 164,
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171 n.7 (1974) (“common authority” not determined by property interest, but by

mutual use of property by persons generally having joint access or control for most

purposes). Even if Charging Elk did not have actual authority to consent to the

search, the officers who conducted the search reasonably believed that he had such

authority, given their belief that Charging Elk lived at the apartment, and his previous

display of authority over the apartment by initially refusing to give Mackey consent

to search. See Rodriguez, 497 U.S. at 185-86 (police must reasonably believe at time

of search that person consenting has authority to do so); United States v. Czeck, 105

F.3d 1235, 1239 (8th Cir. 1997) (relevant inquiry is whether facts available would

have justified reasonable officer’s belief that consenting party had authority over

premises).

Escarsega also argues the court erroneously denied his motion to sever the

counts of the indictment. We conclude, however, that the counts were properly joined

in one indictment and that Escarsega was not severely prejudiced by joinder. The

sexual-assault and assault counts that he sought to sever involved similar conduct as

the sexual-assault and assault counts that would remain, all of the conduct was alleged

to have occurred within a ten-month period, and the evidence on each count would

have been admissible at a trial on the other counts. See Fed. R. Crim. P. 8(a), 14(a);

United States v. Boyd, 180 F.3d 967, 981-83 (8th Cir. 1999).

Next, we reject Escarsega’s contention that the district court erred in admitting

evidence that he had assaulted Roubideaux on two prior occasions. See Fed. R. Evid.

404(b); Arcoren v. United States, 929 F.2d 1235, 1243 (8th Cir.) (district court has

broad discretion to admit other-act evidence, and its determination will be upheld

absent abuse of discretion; evidence is admissible under Rule 404(b) if evidence is

relevant, other act is similar in kind and reasonably close in time to charged offense,

evidence of other act is clear and convincing, and evidence’s probative value does not

outweigh its prejudice), cert. denied, 502 U.S. 913 (1991). The evidence of his other

assaults was relevant to show that he intended to cause bodily harm during the
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charged offense, and that Roubideaux feared bodily injury if she refused sexual

intercourse; the other assaults were similar to the charged assaults that occurred a year

later; Roubideaux’s testimony clearly and convincingly established that the other

assaults occurred; and the evidence was more probative than prejudicial, as the district

court twice instructed the jury that such evidence was admitted only for proving

intent.

Next, Escarsega asserts the district court should have granted him a mistrial

when the government asked an FBI agent on direct examination whether he requested

Escarsega to provide a written or tape-recorded statement at the end of an interview.

We conclude the district court did not abuse its discretion in denying a mistrial

because, even assuming the government’s question impinged on Escarsega’s right to

remain silent, the question did not deprive him of a fair trial. See United States v.

Hale, 1 F.3d 691, 694 (8th Cir. 1993) (standard of review; mistrial warranted where

prosecutor’s improper remarks were so offensive as to deprive defendant of fair trial).

The FBI agent had already testified that Escarsega agreed to be interviewed and talked

about the charges, and the court instructed the jury to disregard the question. 

Escarsega also contends the district court should have excluded expert

testimony on Battered Woman Syndrome (BWS) because the government did not

provide him with sufficient notice. We find no abuse of discretion in allowing the

expert testimony. See Arcoren, 929 F.2d at 1238-40. Escarsega did not request

disclosure of written summaries of expert testimony, see Fed. R. Crim. P. 16(a)(1)(G),

and the government learned of the need to present expert testimony on BWS shortly

before trial when Roubideaux indicated she would recant her previous statements, see

Arcoren, 929 F.2d at 1242 (government’s calling expert to testify on BWS was

reasonable response to victim’s recantation of prior statements on first day of trial;

nondisclosure of intent to call expert witness did not deny defendant due process).
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Last, we find the district court did not clearly err in denying Escarsega’s

challenge under Batson v. Kentucky, 476 U.S. 79 (1986), based on the government’s

strike of the only remaining Native American on the jury panel. The government

offered race-neutral reasons for the strike, including concern that the person’s body

language was “very closed” during government questioning. See McKeel v. City of

Pine Bluff, 73 F.3d 207, 210-11 (8th Cir. 1996).

The judgment of the district court is affirmed.

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