U.S. v. Reddest

• Decision Date: 23 January 2008
• Docket Number: No. 06-4034.,06-4034.
• Citation: 512 F.3d 1067
• Parties: UNITED STATES of America, Appellee, v. Leroy Clifford REDDEST, also known as Leroy Clifford Jack, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

512 F.3d 1067

UNITED STATES of America, Appellee, v. Leroy Clifford REDDEST, also known as Leroy Clifford Jack, Appellant.

No. 06-4034.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2007.

Filed: January 23, 2008.

Gary G. Colbath, Jr., AFPD, argued, Rapid City, SD, for appellant.

Carolyn G. Royce, AUSA, argued, Rapid City, SD, for appellee.

Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.

HANSEN, Circuit Judge.

Appellant Leroy Reddest appeals his convictions of five counts of sexual abuse. Reddest argues that the evidence is insufficient to support the jury's determination on count IV (that he digitally penetrated the victim's genital opening) and that the district court erred by denying his motion for judgment of acquittal on all five counts. We reverse Reddest's conviction on count IV, and we affirm his convictions on the remaining counts.

I.

Consistent with our standard of review, the following facts are described in the light most favorable to the verdict. United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir.2007). M. Y., a minor, was born on January 8, 1990, and she was raised by her maternal grandparents, who legally adopted her at age 8. During M.Y.'s childhood, it was not uncommon for Reddest to stay at her grandparents' home. Reddest was a close family friend, and at the time of the sexual abuse, Reddest was staying at M.Y.'s grandparents' home helping M.Y.'s grandfather with odd jobs that he was physically unable to perform. M.Y. and her cousins were comfortable with Reddest and called him "Grandpa Leroy."

Reddest sexually abused M.Y. several times between February and November of 2003. Reddest was 57 years old at the time of the abuse; M.Y. was 13. On two occasions, Reddest forced sexual intercourse with M.Y. and threatened to harm her if she told anyone about the assault. M.Y. also testified that Reddest touched her genitalia on a separate occasion. All three incidents took place in M.Y.'s grand-parents' home in the Kyle Community on the Pine Ridge Indian Reservation.

M.Y. did not disclose this abuse until the summer of 2005. In July of 2005, following a fight with her grandmother, M.Y. attempted to commit suicide. She was treated for serious injuries at a hospital on the Pine Ridge Reservation and was eventually transferred to a psychiatric hospital in Rapid City, South Dakota. There, during counseling sessions, M.Y. informed a counselor that Reddest had sexually abused her.

Approximately one month later, the FBI began investigating Reddest. During the course of the investigation, Reddest gave two short statements to Special Agent Lauck. In both statements, Reddest apologized to M.Y. for his prior sexual conduct. Prior to trial, Reddest moved to suppress these statements, but the district court denied Reddest's motion, and that decision is not disputed on appeal.

Following the FBI's investigation, Reddest was indicted on three counts of aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a) and 1153, and three counts of sexual abuse of a minor, in violation of 18 U.S.C. §§ 2243(a) and 1153. Reddest pleaded not guilty, and a three-day jury trial was held. At the close of the Government's evidence, Reddest moved for judgment of acquittal on all counts. The district court reserved ruling on count III until after the jury returned its verdict, but the district court denied Reddest's motion on the remaining counts. Reddest then put on evidence and renewed his motion for acquittal at the close of all evidence. The district reserved ruling on count III and denied the motion as to all of the other counts. After deliberating, the jury returned guilty verdicts on counts I, II, IV, V, and VI, and acquitted Reddest on count III. Thereafter, the district court sentenced Reddest to 292 months of imprisonment and 10 years of supervised release. This appeal follows.

II.

As a threshold matter, Reddest argues that his challenge to the sufficiency of the evidence supporting his conviction under count IV, for penetration of the genital opening, is meaningfully different from his argument that the district court erred by denying his motion for judgment of acquittal on all counts. Reddest contends that "the questions and applicable authorities are distinct," (Reddest's Reply Br. 14), but he does nothing to explain how this distinction has any meaningful impact on our review here.

For purposes of this appeal, we discern no meaningful distinction between the de novo standard used to review the sufficiency of the evidence to support a guilty verdict and the de novo standard used to review the district court's ruling on a defendant's motion for judgment of acquittal. In both inquiries, we review the same evidence, view the evidence in the light most favorable to the Government, and ask the same legal question: whether the evidence is sufficient to permit a reasonable jury to conclude that the defendant is guilty beyond a reasonable doubt. Compare United States v. Hilliard, 490 F.3d 635, 640 (8th Cir.2007) (judgment of acquittal), with United States v. Piwowar, 492 F.3d 953, 955 (8th Cir.2007) (sufficiency of the evidence). Accordingly, we address both of Reddest's arguments using the same standard of review. See United States v. Johnson, 18 F.3d 641, 645 n. 7 (8th Cir.1994) (construing a challenge to the district court's denial of a motion for judgment of acquittal and a sufficiency-of-the-evidence challenge as indistinguishable for purposes of review); United States v. Roman, 728 F.2d 846, 860 n. 9 (7th Cir.), cert. denied., 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984) (same),

A. Counts I and II

Reddest argues that the evidence is insufficient to support his convictions under counts I and II of the indictment. Counts I and II arose out of the same assault. Count I charged Reddest with engaging in sexual intercourse by use of force and threats, § 2241(a), and count II charged Reddest with engaging in sexual intercourse with a victim between the ages of 12 and 16, who was at least 4 years younger than him, § 2243(a).

The evidence supporting counts I and II, construed in the light most favorable to the government, is sufficient to permit a reasonable jury to convict Reddest. The Government's evidence showed that Reddest first abused M.Y. in February of 2003. When she went to sleep in her grandparents' livingroom on the night of the assault, Leroy was lying on the livingroom floor in front of the TV. M.Y. was close by on the livingroom couch. She awoke when she felt something rubbing her leg, and she then saw Reddest get on top of her. M.Y. tried to scream, but Reddest covered her mouth with his hand and told her that if she told anyone about the incident he would beat her up. M.Y.'s basketball shorts were pulled down, and, despite her resistance, "Reddest penetrated her vagina with his penis for approximately five minutes. In addition to M.Y.'s testimony, the Government introduced the statement that Reddest made to Special Agent Lauck, in which Reddest wrote: "I'm sorry I laid on top of you at night at the trailer and did a little sex. [sic]. Leroy." (Trial Tr. at 381).

Circumstantial evidence also supports Reddest's convictions on counts I and II. M.Y.'s grandparents observed changes in her behavior around the time of the sexual assaults. M.Y. began doing small loads of laundry late at night and also started taking showers late at night, behavior that an expert witness testified is consistent with sexual abuse. Additionally, M.Y. attempted to install a lock on her door to protect herself, eventually installing a deadbolt lock with the help of her grandfather.

M.Y.'s testimony at trial, coupled with the corroborating evidence described above, is ample evidence both that Reddest used force to have sexual intercourse with M.Y. after threatening her with serious bodily injury, and that Reddest, at age 57, had sexual intercourse with M.Y. when she was 13 years old.

Reddest argues that M.Y.'s inconsistent testimony at trial and her prior inconsistent statements undermine the Government's case. But credibility determinations and the weighing of conflicting evidence are committed to the jury. Piwowar, 492 F.3d at 956. In fact, due to the jury's superior opportunity to evaluate the evidence presented, the jury's, credibility determinations are "virtually unreviewable on appeal." United States v. Davis, 471 F.3d 938, 948 (8th Cir.2006) (internal marks omitted). The conflicting evidence offered at trial affords no basis for reversal here.

Because the evidence is sufficient to support Reddest's convictions on counts I and II, we affirm those convictions.

B. Counts v. and VI

Counts V and VI of the indictment charge violations of the same statutes as counts I and II, but are based on an independent assault that took place on a different day. As with counts I and II, we conclude that the evidence is sufficient to permit a reasonable jury to convict Reddest of counts V and VI. M.Y. testified that just prior to the start of school in 2003, Reddest assaulted her in her bedroom. After returning home late at night after walking with friends, she went to bed. As she was falling asleep, Reddest entered her room, got on top of M.Y., grabbed her arms, and pulled back her hair. M.Y. resisted by attempting to hit the wall, but Reddest put his hand over her mouth and penetrated her vagina with his penis for approximately five minutes. At the end of the assault, before Reddest left M.Y.'s room, he threatened to beat her up if she told anyone about the incident.

In addition to this testimony, the circumstantial evidence of M.Y.'s behavioral changes described above supports Reddest's convictions on counts V and VI of the indictment. The evidence as a whole is sufficient to permit a reasonable jury to conclude, on count V, that Reddest used force to have sexual intercourse with M.Y. and then threatened her with serious bodily injury near the end of the assault. The evidence is...