United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1539

___________ United States of America, *

Plaintiff - Appellant, * Appeal from the United States

v. * District of North Dakota. Brent William Allery, *

Defendant - Appellee. * *

* District Court for the

*

*

*

___________ Submitted: October 22, 1997 Filed: March 20, 1998

___________ Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge. The government appeals the district court’s order granting defendant Brent William Allery’s post-trial motion for judgment of acquittal. The govern ment claims there is sufficient evidence to support the jury’ s verdict finding Allery guilty of abusive sexual contact by use of force in vio lation of 18 U.S.C. § 2244(a)(1) (1994). We agree and reverse an d remand.

## -2- I. Viewing the evidence in the light most favorable to the verdict, a rea sonable jury could have found the following facts. At approximatel y 11:30 p.m. on June 24, 1995, the victim, Darcie Jackson, arrived home wher e she lived with her boyfriend, Corey Delorme, and her children. Jackso n told Delorme, who was awake watching television, that she was going to bed

. She went to the bedroom where two of her children were already sleeping. Jackson closed the window in the room and then fell asleep on the bed.

Ja ckson next remembered awaking with someone lying on top of he r engaging in sexual intercourse with her. She testified as follows:

Wh en I woke up, [Allery] was having intercourse with me. I thought that was Corey, until I opened my eyes, andwhen I felt the hair, that was not Corey, and I pushed him away , and he was trying to kiss me on the mouth, and that’s when I smelled the alcohol, and I got scare d, and I tried to—I tried to get away, and which I did, and that’s when I started hollerin g for Corey.

(Trial Tr. at 358-59.)

After J ackson got away, Allery grabbed her and threw her back ont o the bed. Jackson then pulled Allery’s hair and pushed him away as she fel l off the bed to the fl oor. Allery then fled, jumping out the open bedroom window from which he had originally entered. Allery was subsequentl y arrested after police found him asleep in a pick-up truck while wearing only his underwear. Allery is an Indian and Jackson’s home is located on an Indian reservation.
Allery was indicted for one count of abusive sexual conduct by th e use of force in violation of 18 U.S.C. § 2244(a)(1). Following trial, a jury convicted Allery of the

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charge. The district court then granted Allery’s motion for judgment of acquittal, ruling that “the evidence does not sufficiently show the elemen t of ‘force,’ such that a rational trier of fact could have found beyond a reasonable doubt, that the Defendant committed the crime of ‘abusive sexua l contact.’” (Dist. Ct. Order and Mem. at 4.)

II. The gover nment argues that the district court erred in granting the judgment of acquittal because there is sufficient evidence to support the jury’s verdict finding Allery guilty of abusive sexual contact by use of force. A district court has “very limited latit ude” in ruling on a motion for judgment of acquittal. United States v. Robbins , 21 F.3d 297, 298 (8t h Cir. 1 994) (internal quotations omitted). In exercising this limite d latitude, it “cannot weigh the evidence or assess the credibility of the witnesses.” Id. at 299. Instead, the court “must determine whether the evidence, viewed in the light most favorable to the government, is suc h that a reasonably minded jury must have a reasonable doubt as to th e existence of any essential elements of the crime charged.” Id. (internal quotations omitted). We apply these same standards on appeal. Id.
The crime of abusive sexual conduct by use of force is proscribed by 18 U. S.C. § 2244(a)(1), which makes it unlawful to knowingly engage i n “sexual contact” with another person if to do so would violate 18 U.S.C. § 2241 if the sexual contact had been a “sexual act.” Section 2241(a)(1) prohibits knowingly causing another person to engage in a sexual act “by using forc e against that other person.” The statute defines the ter m “sexual contact” as “ the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, o r buttocks of any person with the intent to abuse, humiliate, harass , degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). Section 2 244(a)(1) is applicable in this case by virtue of 18 U.S.C. § 1153, which grants the district court j urisdiction over this case byproviding that “[a]ny Indian who commits” certain offenses, including § 2244,

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“within the Indian country, shall be subject to the same laws and penaltie s as all other persons committing” the offense “within the exclusiv e jurisdiction of the United States.” See United States v. Goodlow , 105 F.3 d 1203, 1206 (8th Cir. 1997); United States v. Demarrias , 876 F.2d 674, 675 (8thCir. 1989). Thus, the essential elements of abusive sexual contact by fo rce in this case are: (1) knowingly and intentionally engaging i n sexual co ntact with another; (2) doing so with the intent to abuse , humiliate, harass, degrade, or arouse or gratify a person’s sexual desire; (3) the use of force in causing the sexual contact; (4) the defendant is
an Indian; and (5) the act occurred in Indian country. See 18 U.S.C. §§ 2244(a)(1), 2241(a)(1), 2246(3), 1153.

The part ies stipulated that the fourth and fifth elements were me t in this case. Allery concedes, and the district court ruled, that th e first and second elements are supported by subst antial evidence. The sole issue her e is whether there is sufficient evidence of the thir d element—that Allery used force in causing the sexual contact.

The term “force” is not defined in the statute. United States v

. Jones , 104 F.3d 193, 197 (8th Cir.), cert. denie d , 117 S. Ct. 2470 (1997). However, we have previously held:
The requirement of force may be satisfied by a showing of the use, or threatened use, of a weapon; the use of such physical for ce as is sufficient to overcome, restrain, or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim. United States v. Fire Thunder , 908 F.2d 272, 274 (8th Cir. 1990) (quoting H.R. Rep. No. 99-594, at 14 n.54a (1986), reprinted in 1986 U.S.C.C.A.N. 6186, 6194 n.54a). W e have also repeatedly held that force sufficient to pre vent the victim from escaping the sexual contact satisfies the forc e element. See Jones , 104 F.3d at 197; United States v. Bordeaux , 997 F.2d 419, 421 (8th Cir. 1993); Fire Thunder , 908 F.2d at 274; see also United States v. Lauck , 905 F.2d 15, 18 (2d Cir. 1990).

## -5- In support of the judgment of acquittal, Allery argues that the force element in § 2241(a)(1) “is present only if the sexual contact results fro m restraint that is suc h that the victim cannot escape the sexual contact.” (Appellee’s Br. at 5) (emphasis added). Allery c laims that because Jackson
was eventually able to escape, force was not present. We reject thi s argument. Eventual escape by the victim of the sexual contact does no t prevent a finding that the sexual contact occurr ing immediately before the escape was caused by using force. The statute prohibits “caus[ing] anothe r perso n to engage in” sexual contact “by using force against that othe r person.” 18 U.S.C. § 2241(a)(1). This language does not require forc e that prevents the eventual escape of the victim. Instead, it requires the use of force sufficie nt to restrain the victim and allow the defendant to engage in sexual contact. See Lauck , 905 F.2d at 18 (“The ‘force’ that th e statute c ondemns . . . is force that, by being used against the othe r person, results in a sexual contact.”) Although proof that the victim was unable to escape is sufficient to sustain a finding of such force, it is not necessary to a finding that force was used.

After r eviewing the record in this case, we are convinced there i s sufficient evidence of force to support the jury’s guilty verdict. Jackso n testified that Allery was lying on top of her and having sexual intercours e withher when she awoke. When Jackson realized Allery was not he r boyfriend , she attempted to push him away. The record supports th e reasonable inference that Allery continued to en gage in sexual intercourse with Jackson while sh e tried to push him away, and that the two struggled before Jackson succee ded in pushing Allery away. The jury could conclude that Allery was physi cally restraining Jackson by lying on top of her and resisting her attempts to push him away while at the same time he wa s having sexual intercourse with her. Thus, the j ury could find that Allery
was engaging in sexual contact with Jackson while physically restraining her. Such physical restraint of the victim is sufficient to constitut e for ce under the statute. See Fire Thunder , 908 F.2d at 274 (“Th e requi rement of force may be satisfied by . . . the use of such physica l force as is

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sufficient t o . . . restrain . . . a person.”). Therefore, the jur y reason ablycould have found that the government proved the essentia l element of force.

III.

We hold that there is sufficient evidence to support Allery’ s convicti on by the jury for abusive sexual contact by use of force. W e there fore reverse the judgment of acquittal and remand the case to th e district court for entry of judgment on the jury ’s guilty verdict, and for further proceedings thereon.
A true copy.

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