FILED
NOT FOR PUBLICATION FEB 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30095
Plaintiff - Appellee, D.C. No. 4:11-cr-00079-SEH-1
v.
MEMORANDUM*
EDWARD RONALD STAMPER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted February 6, 2013**
Seattle, Washington
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Defendant-Appellant Edward Stamper appeals his jury conviction for sexual
abuse in violation of 18 U.S.C. § 2242(2)(B) and 18 U.S.C. § 1153(a) (offense
committed within Indian country). On appeal, Stamper contends that the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court erroneously denied his motions for a judgment of acquittal because there was
insufficient evidence to support a finding that the victim was “physically incapable
of declining participation in, or communicating unwillingness to engage in, that
sexual act” as required by statute. See 18 U.S.C. § 2242(2)(B).
We review de novo a district court’s denial of a motion for judgment of
acquittal, asking whether, in the light most favorable to the prosecution, the
evidence presented at trial was adequate to allow any rational trier of fact to find a
defendant guilty of the appealed element of the crime beyond a reasonable doubt.
United States v. Sutcliffe, 505 F.3d 944, 959 (9th Cir. 2007); see also United States
v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
Here, the government presented sufficient evidence to allow a rational jury
to find that the victim was “physically incapable of declining participation in, or
communicating unwillingness to engage in” the sexual act in question. See 18
U.S.C. § 2242(2)(B). In sexual assault cases, “a reasonable jury may conclude that
a person who is asleep when a sexual act begins is physically unable to decline
participation in that act.” United States v. Fasthorse, 639 F.3d 1182, 1184 (9th
Cir. 2011) (alteration omitted) (quoting United States v. Wilcox, 487 F.3d 1163,
1169 (8th Cir. 2007)). A victim’s testimony that she woke up while the sexual act
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was ongoing provides sufficient evidence of her lack of capacity even when she
had been consuming drugs or alcohol. Id. at 1184–85 (finding sufficient evidence
to uphold a conviction under 18 U.S.C. § 2242(2)(B) where a woman who had
been drinking alcohol and smoking marijuana testified that she awoke while a
defendant was having sex with her).
The victim testified that she “blacked out” in a downstairs living room at
around 4 p.m. after drinking a shot of vodka. She awoke to find Stamper “on top
of [her]” and his penis “inside of [her].” Three others present at the party where
the victim was assaulted corroborated that the victim passed out from substantial
consumption of alcohol and was not responsive. A forensic expert from the FBI
testified at trial that the victim had an estimated blood alcohol level of between
0.18 to 0.25 gram percent at 10 p.m. on the night of the assault.
Stamper, however, relies on inconsistencies between the testimonies of
various witnesses and evidence suggesting that the victim did not appear drunk
several hours after the assault. But none of this evidence directly contradicts the
victim’s version of events, and it was within the jury’s power to weigh
inconsistencies in making credibility determinations. See United States v. Kerr,
981 F.2d 1050, 1053 (9th Cir. 1992) (noting that a jury makes credibility
determinations); see also United States v. H.B., 695 F.3d 931, 934, 937 (9th Cir.
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2012) (affirming an adjudication as a juvenile delinquent, despite differing
accounts of events, where the trial court’s decision was supported by its credibility
assessments). The jury chose to credit the victim’s story rather than Stamper’s.
Stamper further challenges the sufficiency of the evidence by contending
that the victim made no “proactive” attempt to “notify[] police of a sexual assault.”
But we have noted that “[a] victim of sexual assault does not irredeemably
compromise his or her credibility by failing to report [an] assault at the first
opportunity.” Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir. 2004) (in the
immigration context). A rational jury could have concluded that the victim did not
initiate contact with the police about the assault because Stamper had already
informed the victim’s cousins that Stamper would be calling the police and, by the
time the victim arrived at her relative’s house following the assault, police officers
had arrived there in response to Stamper’s call. Sufficient evidence exists to
uphold Stamper’s conviction and the district court did not err in denying Stamper’s
motions for a judgment of acquittal.
AFFIRMED.
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