United States v. Pumpkin Seed

572 F.3d 552 (8th Cir. 2009)

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Nature of the Case

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Facts

D and Heather Red Cloud and others met at Red Cloud's aunt's home. D and Red Cloud left the gathering, though not together. According to Red Cloud, after the two left the gathering, D grabbed and attacked her behind her aunt's home. Red Cloud attempted to flee his grasp by removing her jacket, but D forced her to her knees and eventually onto the ground. D covered Red Cloud's mouth with his hand, pulled down his pants, forced her jeans down to her ankles, and began to have vaginal intercourse with her. Red Cloud was eventually able to scream for help and attract the attention of three boys who were walking along a nearby bike path. Two of the boys approached and pushed D off of Red Cloud. Red Cloud, now free, pulled her jeans back up, began crying hysterically, hit D, and then ran back into her aunt's home. D claims Red Cloud took him by the arm and they began kissing. Red Cloud took off her jacket and the two embraced on the ground, continuing to kiss. D unbuttoned his pants and her jeans, but he did not engage in any additional sexual advances after Red Cloud asked him not to go any further. They continued to kiss until Red Cloud observed three boys approaching. Red Cloud got nervous and yelled 'stop,' prompting D to stand up. The boys then came over, recognizing D and Red Cloud, and D told them to go away because he was 'trying to get some.' Red Cloud began to curse claiming that he had raped her. D then called Red Cloud a 'minor bunner' in front of the boys, and Red Cloud responded by hitting him and becoming hysterical. Red Cloud told her aunt that D had raped her. Red Cloud was transported to a hospital. A number of injuries were observed on Red Cloud, including abrasions to her back and left knee, a cut lip, and scrapes and scratches on her neck and elbow, but no apparent injuries to her vaginal area. There were grass stains on Red Cloud's jeans, dirt on the back of her shirt, and grass and debris in her hair. Red Cloud was asked whether she had consensual intercourse within the last seventy-two hours, Red Cloud answered 'no.' Vaginal and cervical swabs found the presence of semen and foreign pubic hair. Special Agent Carl Martinez interviewed Red Cloud who said that D had raped her and had ejaculated, either in her or on her. The grand jury returned a one-count indictment charging D with aggravated sexual abuse and attempted aggravated sexual abuse. D pled not guilty. The FBI determined that D was not the source of either the semen or foreign pubic hair samples from the rape kit and that the two samples did not share a common donor. Red Cloud admitted to having consensual sexual relations with another man and she had lied to protect the identity of her married sexual partner. D filed a motion under Federal Rule 412 to admit evidence of D's sexual history, of past sexual relations between Red Cloud and him, of the semen, foreign pubic hair, and extragenital injuries discovered during Red Cloud's rape kit procedure, and of Red Cloud's false answer to the rape-kit interview question concerning her recent sexual activity. The court granted the motion as to any evidence of specific past sexual relations between Red Cloud and D, but it denied the motion as to all of the other evidence. D was convicted and appealed.