                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1839
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                               Douglas Wayne Tarnow

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                           Submitted: December 14, 2012
                              Filed: February 8, 2013
                                  ____________

Before WOLLMAN, BYE, and BENTON, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.

      A jury convicted Douglas Wayne Tarnow of one count of aggravated sexual
abuse, in violation of 18 U.S.C. §§ 1151, 1153(a), 2241(a)(1), and 2246(2). Tarnow
appeals from his conviction, arguing that the evidence was insufficient to support the
verdict. Alternatively, he argues that a new trial should be granted because the
district court1 admitted prejudicial propensity evidence and erred when it refused to
instruct the jury on a lesser included offense. We affirm.

                                   I. Background

      Tarnow and K.D.2 entered into a romantic relationship in November 2010. In
the beginning, Tarnow was “nice and respectful” towards K.D. But he soon became
jealous and often accused K.D. of being unfaithful. Tarnow ended their relationship
on January 25, 2011, when he told K.D. that he did not want to see her again. They
began exchanging text messages a few days later and discussed getting back together.
Some of the messages were sexually explicit. On January 30, K.D. met Tarnow at his
aunt’s house to retrieve her personal effects.

      When K.D. arrived, Tarnow entered the back seat of her car and began berating
her. Tarnow asked for a ride, but could not find a place to go. Tarnow told K.D. to
take him to her house, from where he would find a further ride. K.D. drove to her
home, located in a rural area on the Red Lake Indian Reservation, and went inside.
Tarnow remained outside, using his cell phone. He entered K.D.’s home a few
minutes later.

      According to K.D., Tarnow was angry:

      [H]e kept asking me if there was something I had to tell him and . . . I
      kept telling him no. He would ask me is there something that I did over
      the past week that I need to tell him and I told him no. And he kept
      repeating or asking me those questions over and over.

      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
      2
       Although the victim of this offense is not a minor, we have elected to identify
her by use of initials rather than by her full name.

                                         -2-
Tarnow then went behind K.D. and wrapped his arms around her, squeezing her rib
cage so tightly that she thought her ribs might break. “I felt like I was getting
crushed.” Tarnow then slammed K.D. onto her bed, repeatedly asking her if there
was something she needed to tell him. K.D. responded that there was not.

       K.D. asked Tarnow to leave and offered him money. Tarnow refused to leave,
saying (although not in such refined terms) that he was sexually aroused and
demanding that K.D. perform oral sex on him. After Tarnow ripped off her tank top
and bra, K.D. complied with Tarnow’s demand, explaining at trial that “I didn’t want
the terrorizing to continue. I was scared. I just did as I was told because I wanted
everything to stop.” Afterwards, Tarnow lay on K.D.’s bed, pulling her against his
chest. K.D. testified that she could not move, so she remained in bed with him.
Tarnow told K.D. “not to touch the phone.” Fearful of Tarnow, K.D. did not call the
police and did not activate her home security system.

       The next morning, K.D. got up to go to work. Tarnow kept a watchful eye on
her and again ordered K.D. not to touch the phone. She complied. Tarnow
apologized for having squeezed her. K.D. replied, “Let’s forget about it[,]”
explaining to the jury that she “just wanted to get out of there.” Tarnow would not
allow K.D. to go to work, saying, “[L]et’s start the morning right.” At Tarnow’s
request, K.D. removed her jeans and shirt. Tarnow then ripped off her bra and
underwear, climbed on top of her, and engaged in vaginal intercourse. K.D. testified
that although she did not want to have sex with Tarnow, she did what she was told,
saying, “I was too scared to . . . I was scared of a repeat of what happened the night
before.”

      Tarnow became jealous again, either during or after sex, and resumed
questioning K.D. He grabbed a TV remote control and shoved it into K.D.’s vagina.
He “just kept pushing and pushing it further and I screamed and told him to stop.”
K.D. bled as a result of the attack.

                                         -3-
       Tarnow then beat K.D., throwing her headfirst onto the tile floor, stomping,
kicking, elbowing, and punching her. When she tried to stand up, Tarnow elbowed
her in the neck until she dropped to the floor. He pinned her down and slammed her
face onto the tile, causing her chin to split open and bleed.

        At some point thereafter, Tarnow decided that they needed to go to the clinic
to be tested for sexually transmitted diseases, as well as other communicable diseases.
He had K.D. drive to a clinic in Bemidji, Minnesota, some 30 miles away from K.D.’s
home. During the drive, Tarnow continued to accuse K.D. of being unfaithful. K.D.
testified that Tarnow was “ranting and raving” and that she did what she was told.
“I didn’t want to continue to get hit anymore.” At one point, Tarnow grabbed K.D.’s
ponytail, took out a knife, and cut off a chunk of her hair. He then hit K.D. on the
side of her face.

       When they arrived at the clinic, two law enforcement officers were located in
the lobby, guarding an inmate. While Tarnow was talking to clinic staff, K.D.
stepped aside, pulled up her chin to show her wound, and mouthed the words “help
me” to the officers. One of the officers called dispatch and requested that an officer
be sent to investigate a possible domestic assault. Sergeant Ernest Beitel responded
to the call and testified,

      [K.D.] was crying. She was disheveled. She was very shook up. She
      appeared very alarmed. She had injuries that were consistent with being
      assaulted. I saw lacerations, contusions, swelling, loose hair, bruising
      in other areas. . . . It took quite a while for me to get her to calm down
      in order to even talk to her about what happened. She was very
      concerned that I wasn’t going to do anything, that I wasn’t going to
      protect her or I wasn’t going to arrest Mr. Tarnow.

      A sexual assault nurse examiner evaluated K.D. and found lacerations in K.D.’s
genital area. She also found bleeding and bruising on the uvula, the fleshy appendage


                                         -4-
located in the back of the mouth. Bruises covered K.D.’s body, and she had suffered
a cut on her chin. According to the nurse, the injuries were consistent with the
physical and sexual abuse that K.D. had described.

       Tarnow was charged with aggravated sexual abuse, and the case proceeded to
trial. K.D. testified first, setting forth the events of January 30th and 31st. The
officer who called dispatch, the officer who responded to the call, and the sexual
assault nurse examiner also testified. The government introduced the torn
undergarments, as well as pictures that depicted K.D.’s bedroom, the undergarments,
and the TV remote control. An FBI agent, who had interviewed Tarnow while he was
in custody, testified that Tarnow claimed that he had had consensual sex with K.D.

       Over Tarnow’s objection, the government called two women who testified
about prior encounters with Tarnow. The first of these witnesses testified that she
had met Tarnow at a party in 2007. After Tarnow expressed sexual interest in other
women at the party, he expressed interest in the witness, who “kind of brushed him
off.” When the witness tried to leave the party, she discovered that her car tire had
been slashed. Tarnow told her, “You’re not going anywhere. I slashed your tire.”
He then dragged the witness by her hair into his truck and drove her to another house.
Once there, Tarnow grabbed her by the ponytail and tried to cut it off. When the
witness tried to leave the second house, Tarnow grabbed her, held her against the
wall, and sliced her neck with scissors. The witness eventually escaped, running
away from the house, with Tarnow in pursuit. After the witness tripped and broke her
leg, Tarnow tried to pull her leg back into place and threatened to kill her if she told
the police. The government also called Tarnow’s former wife, who testified that
during their marriage Tarnow had knocked her unconscious during a fight. At the
close of the evidence, the district court instructed the jury that it could use the
evidence of Tarnow’s prior acts “only on the issue of intent and motive.” Jury Instr.
7.



                                          -5-
      During the charge conference, defense counsel requested an instruction on
simple assault, arguing that because the assault took place after the alleged sexual
contact, Tarnow was entitled to a lesser included offense instruction. The district
court denied the motion.

       The instructions set forth Tarnow’s theory of the case, that is:

       [T]hat he was invited to [K.D.’s] home and that he had reason to believe
       he was welcome to spend the night, that he did not knowingly cause
       [K.D.] to engage in a sexual act against her will, and that he did not
       engage in a sexual act with [K.D.] by the use of force.

Jury Instr. 18. The jury found Tarnow guilty of aggravated sexual abuse, and he was
sentenced to 480 months’ imprisonment.

                                     II. Discussion

                            A. Sufficiency of the Evidence

       Tarnow argues that the evidence is insufficient to sustain a conviction for
aggravated sexual abuse. When reviewing the sufficiency of the evidence, we view
the evidence in the light most favorable to the jury’s verdict and accept all reasonable
inferences that support the verdict. United States v. Anderson, 570 F.3d 1025, 1029
(8th Cir. 2009). We will reverse only if no reasonable jury could have found Tarnow
guilty beyond a reasonable doubt. Id. Because Tarnow did not move for judgment
of acquittal, we review the district court’s entry of judgment for plain error. Id.

       To convict a defendant of aggravated sexual abuse under 18 U.S.C.
§§ 2241(a)(1) and 1153, the government must prove beyond a reasonable doubt that
“(1) the defendant did knowingly cause and attempt to cause another to engage in a
sexual act, (2) by the use of force or threat of force, (3) the defendant is an Indian, and

                                           -6-
(4) the offense occurred in Indian Country.” United States v. Youngman, 481 F.3d
1015, 1020 (8th Cir. 2007). Tarnow stipulated that he is an Indian and that the events
occurred on Indian land. Accordingly, Tarnow disputed only that he had knowingly
caused K.D. to engage in a sexual act and that he had done so by the use of force or
the threatened use of force.

       Tarnow argues that K.D. exaggerated the facts and that she “practically
abducted [him] for sex that night.” Appellant’s Br. 8. He concedes that he assaulted
K.D., but argues that the jury should have distinguished the nonconsensual acts of
assault from the consensual sexual acts. He points to evidence of their conversation
via text messages, during which they discussed rekindling their relationship, either
short or long term.

       Tarnow’s argument sets forth his theory of the case, but it does not undermine
the evidence in support of his conviction. A reasonable jury could find that Tarnow
used the threat of force and actual force to cause K.D. to engage in sexual acts. The
evidence showed that the physical and sexual abuse occurred either simultaneously
or very close in time, with the victim fearing further physical abuse if she did not
submit to Tarnow’s demands. As recounted above, K.D. testified that she engaged
in oral and vaginal sex only because she “didn’t want the terrorizing to continue.”
Physical and photographic evidence corroborated K.D.’s testimony that Tarnow had
ripped her undergarments from her body. The jury heard the nurse’s testimony that
the lacerations on K.D.’s genitals and the bruising on her uvula were consistent with
the sexual abuse K.D. had described. The nurse characterized the injury to K.D.’s
uvula as “very unusual” and caused by something being forced into K.D.’s mouth.
A reasonable jury could find that Tarnow’s act of forcibly inserting a TV remote
control unit into K.D.’s vagina satisfied the disputed elements of aggravated sexual
abuse. A photograph showed the remote control, and another showed drops of blood
on K.D.’s sheets. The nurse’s and Sergeant Beitel’s testimony regarding the other



                                         -7-
injuries to K.D.’s body corroborated K.D.’s description of the beatings she had
suffered at Tarnow’s hands.

       Tarnow acknowledges that his challenge to the sufficiency of the evidence “is
relegated to an attack on the testimony of [the victim].” Appellant’s Br. 8. In
reviewing the sufficiency of the evidence, however, we do not review the credibility
of the witnesses. “It is the function of the jury, not an appellate court, to . . . judge the
credibility of witnesses. Such credibility findings are virtually unreviewable on
appeal.” United States v. Mann, 701 F.3d 274, 298 (8th Cir. 2012) (internal
quotations and citations omitted). Suffice it to say that, as described in detail above,
the evidence presented at trial was sufficient to sustain Tarnow’s conviction.

                               B. Evidentiary Challenge

      Tarnow argues that the district court erred in allowing the testimony regarding
Tarnow’s prior bad acts. He contends that the evidence was not probative and that
even if it was, it was too prejudicial to be admitted. We review evidentiary rulings
for abuse of discretion. United States v. Brumfield, 686 F.3d 960, 962 (8th Cir.
2012).

       Federal Rule of Evidence 404(b) “prohibits the admission of evidence of a
defendant’s prior bad acts to prove character or propensity to commit crime, but it
permits such evidence for other purposes,” such as to prove intent and motive.
Brumfield, 686 F.3d at 963. To be admissible, the evidence must be “probative of a
material issue other than character” and “similar in kind and reasonably close in time
to the crime charged.” Id. (citations omitted). Moreover, “[t]he prosecution must
present sufficient evidence from which a jury could find by a preponderance of the
evidence that the prior act occurred.” Id. A district court may exclude relevant
evidence if its probative value is substantially outweighed by the danger of unfair
prejudice. Fed. R. Evid. 403.

                                            -8-
       Tarnow placed his state of mind at issue when he denied “knowingly caus[ing]
[K.D.] to engage in a sexual act against her will” and “by the use of force.” Jury
Instr. 18. The first witness’s testimony was relevant to show that Tarnow intended
to use force or the threat of force to subdue and control K.D. The intent was
exemplified by Tarnow’s dragging the witness by her hair to his truck and driving her
to a second location against her will after she had declined his advances. Tarnow
then used force to subdue the witness when she defied him by trying to leave the
second residence and then chased her when she finally escaped. The evidence thus
was probative of Tarnow’s intent and motive, and it met the remaining requirements
under Rule 404(b). Any prejudicial effect was lessened by the court’s instruction to
the jury to consider the evidence “only on the issue of intent and motive.” Jury Instr.
7. See Brumfield, 686 F.3d at 963. Accordingly, we conclude that the district court
did not abuse its discretion in admitting the first witness’s testimony.

       Whether the testimony of Tarnow’s former wife should have been admitted
presents a closer question. Any error in its admission, however, was harmless, in
light of the overwhelming evidence against Tarnow and the limiting instruction given
to the jury. See United States v. Crenshaw, 359 F.3d 977, 1003-04 (8th Cir. 2004)
(“An evidentiary error is harmless if, after reviewing the entire record, we determine
that the substantial rights of the defendant were unaffected, and that the error did not
influence or had only a slight influence on the verdict.”) (internal quotations and
citation omitted).

                                 C. Jury Instruction

       Tarnow argues that he was entitled to an instruction on the offense of simple
assault. “[T]he defendant is entitled to an instruction on a lesser included offense if
the evidence would permit a jury rationally to find him guilty of the lesser offense and
acquit him of the greater.” United States v. Ponce, No. 11-2671, 2013 WL 173967,
at *3 (8th Cir. Jan. 17, 2013) (quoting Keeble v. United States, 412 U.S. 205, 208

                                          -9-
(1973)); see also United States v. Crawford, 413 F.3d 873, 876 (8th Cir. 2005) (per
curiam). We review for abuse of discretion the refusal to give an instruction on the
lesser included offense. Id.

       We conclude that the evidence would not permit a rational jury to find Tarnow
guilty of simple assault while simultaneously acquitting him of aggravated sexual
assault. Tarnow continues to argue that the physical assault was separate from the
sexual acts, which he contends were consensual. He cites evidence of K.D.’s text
messages and her testimony that she brought him to her rural home. K.D.’s account
of the events of January 30th and 31st was not contradicted, however, and was
corroborated by physical and photographic evidence, as well as by the testimony of
the nurse and law enforcement officers. Whatever the nature of the parties’
relationship may have been upon their arrival at K.D.’s home, it soon turned violent,
with Tarnow using force or the threat of force to cause K.D. to submit to oral and
vaginal sex, force that included the insertion of a physical object into K.D.’s body.
As the government stated during closing arguments, the events giving rise to the
charge against Tarnow should be viewed as a whole, rather than as individual frames
of a movie. Indeed, rather than depicting a series of discrete events—episodes of
consensual sex punctuated by period of violence and threats thereof—the evidence,
viewed as a montage, established for a rational jury only a continuity of violence and
force, giving the lie to Tarnow’s argument to the contrary. The district court thus did
not abuse its discretion by denying Tarnow’s request for a lesser included offense
instruction.

                                   III. Conclusion

      The conviction is affirmed.
                      ______________________________




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