Submitted: May 17, 2013
Appeal from United States District Court for the District of South Dakota - Sioux Falls
Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Robert Ford was charged with sexual abuse of an incapacitated person, in violation of 18 U.S.C. §§ 2242(2), 2246(2)(A), and 1152 ("Count 1") and kidnapping, in violation of 18 U.S.C. §§ 1201(a)(2) and 1152 ("Count 2"). A jury acquitted Ford of sexual abuse but convicted him of kidnapping. On appeal, Ford contends that his acquittal on the sexual abuse count requires an acquittal on the kidnapping count as a matter of law. He argues that the district court erred in issuing two supplemental jury instructions and in denying his motions for judgment of acquittal and for a new trial. We affirm.
On the night of June 29, 2011, Christina Weston, her cousin, Eric Sherman, her friend, Shelly Red Earth, and her former romantic interest, Ford, consumed alcohol and fell asleep at Weston's house. Sherman testified that the next morning he and Red Earth heard a "muffled commotion" coming from Weston's bedroom. When Sherman went to investigate, he encountered Ford, who had just exited Weston's bedroom and shut the door. Ford looked upset and said, "Your cousin is having a fit, an attack. You better go check on her." Sherman knocked on the door and went into Weston's room where he found her traumatized. She was seated on the floor with her legs curled up, rocking back and forth and sobbing. Sherman observed red marks on Weston's arms that had not been there the night before. When Sherman asked Weston what happened, Weston pointed to the door and said, "That f*****g Bob, " referring to Ford. Sherman then went to look for Ford, but he had departed. Weston was taken to the hospital. After hospital staff physically examined Weston, she told them that she had been barricaded in her room and sexually assaulted. Ford's DNA was present on swabs taken from Weston at the hospital.
A grand jury indicted Ford, charging him with sexual abuse of an incapacitated person and kidnapping. Ford pleaded not guilty, and a jury trial was held. At the close of the evidence, the court instructed the jury on both counts. The instructions for Count 1 stated, in pertinent part:
For you to find Robert Ford guilty of Count 1 of the indictment, the prosecution must prove the following five essential elements beyond a reasonable doubt:
One, that on or about June 30, 2011, Robert Ford did knowingly engage in or attempt to engage in a sexual act with Christina Weston;
Two, that Christina Weston was incapable of appraising the nature of the conduct, or alternatively was physically incapable of declining participation in or communication unwillingness to engage in the sexual act;
Three, that Robert Ford knew that Christina Weston was incapable of appraising the nature of the conduct, or alternatively was physically incapable of declining participation in or communicating unwillingness to engage in the sexual act;
Four and five, that Christina Weston is an Indian; and that the offense took place in Indian Country, namely at Flandreau, in Indian Country, in the District of South Dakota.
The instructions for Count 2 stated, in pertinent part:
For you to find Robert Ford guilty of Count 2 of the indictment, the prosecution must prove the following four essential elements beyond a reasonable doubt:
One, Robert Ford unlawfully seized or confined Christina Weston without her consent;
Two, Robert Ford held Christina Weston for the purpose of preventing her from reporting a sexual attack;
Three and four, that Christina Weston is an Indian; and that the offense took place in Indian Country, namely at Flandreau, in Indian Country, in the District of South Dakota.
During the course of its deliberations, the jury sent three questions to the court. The first question was, "Do we have to prove guilty on Count 1 to find guilty on Count 2?" After entertaining arguments from counsel, the court sent the following supplemental instruction to the jury:
As you were instructed in Final Instruction Number Three, the jury needs to find that Robert Ford held Christina Weston for the purpose of preventing her from reporting a sexual attack. This element, along with all the other elements, must be proven beyond a reasonable doubt to find the Defendant guilty on Count Two. To find the Defendant guilty on Count Two, you do not need to find the Defendant guilty on Count One.
This instruction should be taken together with the instructions I previously gave to you. The instructions ...