### The Honorable Ortrie D. Smith, United States District Judge

for the Western District of Missouri, sitting by designation. The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota. ___________ No. 96-1820

___________ United States of America, * *

Appellee, * * Appeal from the United v. * States District Court for * the District of South Lawrence “Speedy” Goodlow, * Dakota. * Appellant. *

___________ Submitted: December 10, 1996 Filed: January 28, 1997

___________ Before BOWMAN and HEANEY, Circuit Judges, and SMITH, District Judge. 1

___________ SMITH, District Judge.
Following a jury trial, Lawrence “Speedy” Goodlow (“Appellant”) was convicted of two counts of aggravated sexual abuse in violation of 1 8 U.S.C. §§ 1153 and 2241(a). On appeal, Appellant alleges that (1) there
was in sufficient evidence to support his conviction, (2) the prosecuto r engag ed in improper argument, and (3) the District Court abused it s 2 discretion in allowing “repeated” leading questions of the victim. For th e reasons set forth below, we affirm Appellant’s conviction.

### Claims for insufficiency of the evidence require this Court

to examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences. E.g. , United States v. Suppenbach , 1 F.3d 679, 681-82 (8th Cir. 1993). “Tr. at __” is a reference to the transcript of the trial. “C.Tr. at __” is a reference to the transcript of the closing argument.
2 I. BACKGROUND
When viewed in the light most favorable to the government, evidence 3 at t rial demonstrated that during the Spring and early Fall of 1994 , Appellant and his wife (Katie Goodlow) lived next door to his mother-inlaw’s (Cecilia Cook) house. Both houses are loc ated within the boundaries of the Crow Creek Indian Reservation. Robert Cook (Katie’s brother and Cecilia’s son) lived with Cecilia. Robert was 38 years old at the tim e of the events at issue, but is borderline mental ly retarded and has the IQ consisten t with that of a someone between the ages of ten and thirteen

. Tr. at 75-79. On August 1, 1994, Cecilia was temporarily admitted to a 4 nursing home. While admitted, Cecilia arranged for Robert to stay wit h App ellant and his wife. At the time, one of Katie’s sisters (Loyale e Flute) and her husband (David Flute) were also living with Appellant and his wife. On August 26, 1996, Appellant and Robert engaged in oral and ana l sex. Robert testified that Appellant “raped me, and pulled down my pants, and threatened to kill me.” Tr. at 90. He also testified that he did not want to engage in sex with Appellant, but Appell ant held him down and made him participate. Tr. at 91, 93. At one point, Robert ran outside th e house, but Appellant ran after him, caught him and hit him. Tr. at 92, 93

. Appellant also told Robert that he would kill him if he told anyone what they had done. Tr. at 93.

### Appellant does not appeal the admissibility of his

statement. 3 Robert told Loyalee about the incide nt, and she and her husband took Robert to the police station. Tr. at 98. Later that evening, Loyalee and
a police officer from the Bureau of Indian Affairs (Victor Ziegler) took Robert to the emergency room at the Mid Dakota Hospital. Robert wa s examined and asked questions by a nurse (Janet Lutter) and a docto r (Theodore Matheny). Robert told Nurse Lutter that his brother-in-law rape d him and threatened to kill him, Tr. at 108-09, and told Doctor Matheny tha t he had been threatened, but did not say who had made the threat. Tr. at 133. Both Nurse Lutter and Dr. Matheny observed a rash or bruise on the right si de of Robert’s rectal area, Tr. at 124, 132, 135. Dr. Mathen y opined that the rash/bruise was consistent with sexual abuse over a period of time and that Robe rt was the victim of sexual assault. Tr. at 132-35. On March 30, 1995, Special Agent Pau l Pritchard of the FBI commenced his investigation into this case. On April 7, Agent Pritchard contacted Appellant for the purpose of interviewing him; with Appellant’s assent, th e two drove to the police department for this purpose. Appellant admitted 5 engaging in oral and anal sex with Robert, and that he “intimidated” Rober t into agreeing to have sex. Appellant elaboratedby explaining that Robert liked to drink beer, and that Appellant withheldbeer in order to persuade Robert t o have sex with him. Tr. at 40-44. However, Appellant denie d threateni ng Robert in any way in order to force him to engage in sex

. Agent Pritchard asked Appellant if he would be willing to sign a written statement; Appellant agreed to sign, but not actually write, a statement. Agent Pritchard wrote a statement for Appellant to sign; the statemen t declares, inter alia , that Appellant and Robert “had oral sex numerou s times, and anal sex twice,” that the first incident of anal sex occurred in Spri ng 1994 and the second occurred in August 1994, and that all th e incidents occurred in a house located on the Creek Indian Reservation. Th e

### More specifically, § 1153 includes among a list of crimes

any “felony under chapter 109A,” and § 2241 is the first section in chapter 109A.
4 statement also declared that Appellant was an American Indian. Finally, the statement related Appellant’s explanation about his use of beer t o persuade/encourage R obert to engage in sex and his denial that force was ever used. Appellant read and signed the statement after Agent Pritchard finished writing it.

II. DISCUSSION
A. Sufficiency of the Evidence

Th e substance of the crime with which Appellant was convicted i s found in 18 U.S.C. § 2241(a), which makes it a crime to cause anothe r person to engage in a sexual act through the use of force or throug h threats of death, serious bodily injury or kidnaping. The provisions of § 2241(a) are applicable in this case by virtue of 18 U.S.C. § 1153, which provides t hat any Indian who commits a crime under § 2241(a) “within the 6 Indian country, shall be subject to the same laws and penalties as al l other persons committing” that offense. The interplay of these tw o sections establishes that the elements of the cr ime were (1) Appellant was

an In dian, (2) he caused another to engage in a sexual act, (3) he use d force or the threat of force to cause the other individuals to engage in the sexual act, and (4) the events occurred on Indian land. Appellant does not dispute the sufficiency of the evidence wit h respect to the first, second or fourth of these elements; indeed, evidence supporting these elements was presented in Appellant’s testimony and in th e statement he provided to Agent Pritchard. Instead, Appellant contends tha t there was insufficient evidence to prove beyond a reasonable doubt that he used force or the threat of force. His argument is predicated on the fact that Robert contradicted himself during his testimony, and at times

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admitted that Appellant had not made him do things he did not want to do and t hat the only threats Appellant made related to the withholding o f beer. Appellant also contends that the victim was scared of his sister, Loyalee, t hat Loyalee not only disliked Appellant but had a motive t o create legal difficulties for him, and that Robert had been coached an d coerced by her to make claims and deliver testimony against Appellant. It is tru e that Robert gave contradictory answers. It is also true that there is some ev idence that would have permitted the jury to believe that Loyalee disliked Appellant. However, it is the jury’s job -- not our s

-- to decide issues that relate to the credibility of witnesses. “Th e verdict must be uphel d if there is an interpretation of the evidence that would allow a reasonable jury to conclude guilt beyond a reasonable doubt. Decisions regarding the credibility of witnesses are to be resolved i n favor of the jury's verdict.” United States v. Uder , 98 F.3d 1039, 1045 (8th Cir. 1996)(citation omitted). The jurors were made aware of al l factors bearing on th e credibility of witnesses and made a decision as to what to believe. After reviewing the record in the light most favorable to the verdict, we cannot conclude that reasonab ly minded jurors must have had a reasonable doubt as to Appellant’s guilt. Cf

. United States v

. McCarthy , 97 F.3d 1562, 1571-72 (8th Cir. 1996) (rejecting claim o f insufficiency of the evidence based on “discrepancies in the testimony of the go vernment witnesses, a strong motive to fabricate, the governmen t witnesses' histories of drug and alcohol abuse, and the fact that th e government witnesses received favorable deals from the government in retur n for testifying against the appellants.”).

B. Prosecutorial Misconduct
At various times, the prosecutor ref erred to the statement Appellant made to Agent Pritcha rd as a “confession.” In particular, the prosecutor referred to it as a c onfession when he requested that it be admitted into evidence and during closing

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argument. Objections to this characterization were overruled and, though no curative instruct ions were given, the trial judge did declare (in the presence of the jury) that “it’s up to the jury to make that determination

. That’s M r. Seiler’s interpretation of it. The jury may well fin d otherwise. And I realize that’s not your interpretation of it, but that will be up to the jury to decide.” C.Tr. at 6-7 . Appellant contends that the prosecutor’s characterization was improper because he never admitted to using force or the threat of force to compel Robert Cook to engage in sexual acts. We examin e claims of improper prosecutorial comments by determining (1) whether the comments were actually improper, and (2) if the comments
were improper, whether they prejudicially affected the Defendant’s right to a fair trial. United States v. Cannon , 88 F.3d 1495, 1502 (8th Cir

. 1996). Initially, we are not entirely convinced that the prosecutor’ s characterization amounted to misconduct. Appellant did confess to three of the four elements of the crime with which he was charged: he admitted that he was an Indian, that he caused Robert Coo k to engage in sexual acts with him, and that the events in question occurr ed on the reservation. “A confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essentia l part of it.” Opper v. United States , 348 U.S. 8 4, 90 n.7 (1954); see also Noland v. United States , 380 F.2d 1016, 1017 n.3 (10th Cir.), cert. denied , 389 U.S. 945 (1967); but see Niolek v. Ashe , 694 F.2d 282, 291 (1st Cir. 1982) (acknowledging distinction between confession of guilt to a crime an d an admission to some of the elements); Gladden v. Unsworth , 396 F.2d 373, 376 n.2 (9th Cir. 1968) (same). Whether a statement given to la w enforcement officials should be referred to as a confession or an admissio n appears, at best, to be a question of semantics and not a potential ground for misconduct. Assuming, arguendo, that the use of the term “confession” wa s impr oper, we conclude that Appellant’s right to a fair trial was no t comprised. The jury was aware that Appellant denied, both at

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trial and in his statement, that he used force o r the threat of force. In context, the prosecutor’s comments did not have the potential to mislead the jury into believing otherwise. Moreover, we note the trial judge’ s comments, although not formally identified as a curative instruction, made clear that the jury would decide the evidentiary value of the statement. Finally, we see no basis for concluding that the jury was led to believe that the government did not have to prove that A ppellant used force or the threat of force to cause Robert Cook to engage in sex. Having reviewed th e entire transcript, we are not persuaded that the jury’s verdict wa s improperly affected by the terms employed by the prosecutor, and Appellant was not deprived of his right to a fair trial.
C. Leading Questions
Appellant’s final argument focuses on the prosecutor’s use of leading questions when conducting his direct examination of Robert Cook. In light of Robert Cook’s mental retardation, Appellant does not dispute that leading questions were permissible pursuant to Fed. R. Evid. 611(c). Instead, Appellant contends that the prosecutor was permitted to use more leading questions than was necessary. "The use of leading questions is a matter left to the discretion of the district court." United States v. Butler , 56 F.3d 941, 943 (8th Cir.), cert. denied , 116 S. Ct. 322 (1995)(quotation omitted). Obviously, the trial court is in a better position than we are to determine the emotional condition and forthrightness of the witness and the need for counsel to use leading questions to develop the witness’s testimony. E.g. , United States v. Nabors , 762 F.2d 642, 651 (8th Cir. 1985). Upon reviewing the transcript, we discern no abuse of the trial court’s discretion in permitting the use of leading questions.

III. CONCLUSION

### 8 For the foregoing reasons, Appellant’s convictions are affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.