Enormity of Rape Evidence Trumps Possible Propensity Problem

By William Peacock, Esq. on February 12, 2013 | Last updated on March 21, 2019

Douglas Wayne Tarnow was convicted of aggravated sexual assault and sentenced to 480 months in prison. He's a wee bit miffed, as most people destined to spend 40 years in prison would be. Then again, he deserves it.

His conviction stems from a violent sexual assault upon his girlfriend. He beat her in a jealous rage, forcibly sexually assaulted her, and then beat her again, splitting open her chin and causing her to bleed from her vagina. She escaped his clutches when the couple went to get STD tests and ran into a pair of police officers.

Tarnow challenges his conviction by challenging the sufficiency of the evidence, arguing that propensity evidence was wrongly admitted, and that a jury instruction on simple assault should have been provided to the jurors.

Sufficiency of the Evidence

This really didn't need much explication by the court. The nurse that examined the victim found trauma that was consistent with the allegations, including a bruised and bleeding uvula (patch of flesh in the back of the mouth) and physical injuries to her vagina. Her torn undergarments, bloody sheets, and a television remote that had been inserted into her were also found in her residence.

All of this contradicts his tale of consensual sex followed by a bit of simple assault.

Propensity Evidence

Two prior bad acts were admitted, with an instruction to use them "only on the issue of intent and motive."

In the first, he tried to hook up with a lady at a party who spurned his advances. He slashed her tire, grabbed her hair and dragged her to his truck, and took her to another house, where he cut her hair and sliced her neck with scissors. When she ran away, she fell and broke her leg. He tried to reset it and warned her not to contact the police.

In the second incident, his former wife testified that he had knocked her unconscious during a fight.

The Eighth Circuit felt that the first incident was clearly admissible, as Tarnow brought his state of mind and intent into issue by testifying that he didn't knowingly cause her to engage in sexual acts against her will by force. The second incident was a closer question, but does not require a closer look because the rest of the case was so clearly damning. Even it was wrongly admitted, it would amount to harmless error.

Jury Instruction

Tarnow argues that he was entitled to a jury instruction on simple assault. A lesser included offense instruction should be given "if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater."

No reasonable jury would acquit him of aggravated sexual assault while convicting him of simple assault due to the enormous weight of the evidence. "Indeed, rather than depicting a series of ... 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."

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