United States v. Dwayne Frosch

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, Michael J. Melloy and Raymond W. Gruender (PUBLISHED) [4174520] [13-3021]

United States Court of Appeals
For the Eighth Circuit
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No. 13-3021
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dwayne Richard Frosch
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: April 18, 2014
Filed: July 14, 2014
[Published]
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Before SMITH, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.

Appellate Case: 13-3021

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Date Filed: 07/14/2014 Entry ID: 4174520

Dwayne Richard Frosch appeals the revocation of his supervised release,
arguing only that the district court's1 factual findings are clearly erroneous. We affirm
the judgment of the district court.
Frosch2 previously was convicted of Kidnapping and Mailing Threatening
Communications, in violation of 18 U.S.C. § 1201(a)(1) and 18 U.S.C. § 876(c). He
was sentenced to a term of imprisonment to be followed by supervised release. He
began serving his supervised release in 2012. Also in 2012, he began a relationship
with Ann Danley. In June 2013, Danley spent an evening apart from Frosch and with
a friend, Brenda Hansen. During that evening, Frosch repeatedly texted Danley.
When Danley arrived home, she discovered that her apartment was open and had been
ransacked. Danley contacted Frosch and asserted that she was going to call his
probation officer. Frosch then arrived at Danley's apartment with alcohol and knives,
took her phone and broke it in half, and subsequently kicked and threatened her when
she attempted to flee. Frosch stayed at Danley's home that night, and Danley did not
again attempt to escape.
Danley went to work the following afternoon, appeared upset, and reported the
incident to a friend. Danley then contacted police and police interviewed Danley,
observed fresh bruises on her body, and took pictures of her apartment. The kitchen
counters appeared to have been wiped off recently, and a pile of items had been
pushed into a corner. Eventually, Frosch's probation officer reached Frosch and
convinced him to turn himself in to the local police. He did so.

1

The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
2

Frosch was convicted under the name Frank Dwayne Bayliff. He changed his
name to Dwayne Richard Frosch in 2004.
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After three hearings in July and August 2013, the district court revoked
Frosch's supervised release and imposed a sentence of 51 months' imprisonment.
Frosch denied many of the facts set forth above. Based upon testimony from Danley,
Hansen, the investigating police officer, and the probation officer, and based on
several government exhibits, the district court found Danley's version of the evening,
as set forth above, credible. The district court determined that these facts established
that Frosch had committed three violations of Iowa law, namely, false imprisonment,
domestic abuse assault, and first-degree harassment. Frosch appeals, arguing the
district court's findings were clearly erroneous. Frosch presents a different narrative,
asserting that Danley was upset with him for ending their relationship and that she
fabricated claims of violence to ensure his return to prison and allow her to keep
personal property and money stolen from Frosch.
To support a revocation of supervised release, a district court is required to find
by a preponderance of the evidence that the defendant committed a violation of a
condition of supervised release, in this case a violation of state law. See United
States v. Ahlemeier, 391 F.3d 915, 919 (8th Cir. 2004). We review the decision to
revoke supervised release for abuse of discretion. Id. "[A]s in other contexts where
a district court has discretion to take certain action based on its findings of fact, the
court's subsidiary factfinding as to whether or not a violation occurred is reviewed for
clear error." United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003) (citation
omitted). In conducting such a review, credibility determinations are "virtually
unassailable on appeal." United States v. Quintana, 340 F.3d 700, 702 (8th Cir. 2003)
(citation omitted). Frosch argues Danley's version of the facts is uncorroborated and
unbelievable, the physical evidence refutes her version of the evening, and the failure
of the state to prosecute him for the events that took place proves his innocence.
We reject his arguments. The physical evidence strongly corroborates Danley's
version of events, and the district court was entitled to find her credible. For
example, Frosch argues that because the apartment was not in a ransacked state when
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the investigating officer examined it and took pictures, Danley must have been lying.
The apartment, however, appeared to have been recently straightened up following
a ransacking, therefore supporting rather than refuting Danley's testimony. Also,
Frosch states that he left the apartment in the morning to get a cup of coffee from a
convenience store and Danley did not attempt to escape at that time. He argues these
facts prove his presence was consensual and Danley had no reason to fear him. This
conclusion ignores the simple explanation that Frosch had beaten Danley the night
before for attempting to escape, and she may have been afraid to risk further
confrontation by leaving without his permission. Finally, to the extent Frosch argues
that an absence of state charges demonstrates the falsity of Danley's position, we
reject his argument. The absence of a prosecution does not logically refute the
district court's factual finding that an offense occurred in violation of the conditions
of supervised release. See United States v. Perkins, 526 F.3d 1107, 1109 (8th Cir.
2008).
We affirm the judgment of the district court.
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