United States v. Demery

• Decision Date: 27 May 2011
• Docket Number: No. 10–2053.,10–2053.
• Citation: 674 F.3d 776
• Parties: UNITED STATES of America, Appellee, v. Primus James DEMERY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

674 F.3d 776

UNITED STATES of America, Appellee,

v.Primus James DEMERY, Appellant.

No. 10–2053.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 14, 2010.Filed: May 27, 2011.

William D. Schmidt, AFPD, argued, Mark S. Falk, on the brief, Bismarck, ND, for appellant.

Brandi Sasse Russell, AUSA, argued, Bismarck, ND, for appellee.

Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Primus James Demery was charged in a three-count indictment and convicted by a jury of abusive sexual contact in Indian country, sexual abuse in Indian country, and assault resulting in serious bodily injury in Indian country. The district court sentenced Demery to a term of 180 months' imprisonment on each of Counts One and Two, and 120 months' imprisonment on Count Three, to be served concurrently. The court also ordered a term of fifteen years of supervised release on each of Counts One and Two, and three years on Count Three, also to be served concurrently.

Demery appeals his conviction and sentence. We affirm the convictions and the sentences imposed on Counts Two and Three, but vacate the term of imprisonment imposed for Count One and remand for the limited purpose of resentencing on that count.

I.

We recite the facts in the light most favorable to the verdict. Early in the morning on April 18, 2009, Demery, an Indian, was drinking and socializing at his sister's house on the Turtle Mountain Indian Reservation. Demery left by himself sometime before sunrise, and he went to Tia Morin's residence next door. Once inside, he entered Morin's bedroom, where she was sleeping. He touched her breasts and genitals, first over her clothing, and then under her clothing. When Morin opened her eyes and looked at him, he forcefully inserted his fist into her vagina. Demery then left the residence.

Demery's assault caused Morin to bleed uncontrollably. She called her friend Kathy Wilson, and Wilson drove Morin to a hospital. Morin underwent emergency surgery to repair lacerations to her vagina.

A grand jury returned a three-count indictment against Demery. Count One charged abusive sexual contact with a person who was physically incapable of declining participation in, or communicating an unwillingness to engage in, the sexual contact, in violation of 18 U.S.C. §§ 1153 and 2244(a)(2). Count Two charged sexual abuse of a person who was incapable of appraising the nature of the conduct, or who was physically incapable of declining participation in, or communicating an unwillingness to engage in, the sexual act, in violation of 18 U.S.C. §§ 1153 and 2242(2)(A)-(B). Count Three charged assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. Following a two-day trial, a jury found Demery guilty on all counts, and the court later imposed sentence.

II.

A.

Demery first challenges the sufficiency of the evidence to support his conviction for sexual abuse. The statute under which Demery was convicted, 18 U.S.C. § 2242(2)(A)-(B), proscribes “engag[ing] in a sexual act with another person” when the other person is “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” The definition of “sexual act” includes “the penetration, however slight, of the ... genital opening of another by a hand or finger.” 18 U.S.C. § 2246(2)(C).

Demery asserts that the government failed to prove that Morin was “incapable,” for purposes of § 2242(2)(A)-(B), at the moment of penetration. “We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the verdict, and we will reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir.2010).

Demery asserts that Morin's own testimony shows that she was neither asleep nor intoxicated when he committed the sexual act, and that the government thus failed to prove that she was incapable of declining participation or communicating unwillingness. Morin testified that she was awakened on the morning of the attack by Demery touching her breasts and genitals over her clothing. After she woke up, Demery began touching her under her clothes. She then opened her eyes and looked at Demery, and when she did so, he penetrated her. Morin also testified that although she had been drinking before she went to sleep on the morning of the attack, she did not really feel intoxicated.

We considered an argument similar to Demery's in United States v. Barrett, 937 F.2d 1346 (8th Cir.1991). In that case, the victim testified that she went to sleep around midnight. Id. at 1348. She was “very tired because of the hour and her previous day's activities.” Id. She “vaguely remember[ed] someone pulling off her jeans and underwear,” and once she was “fully awake,” she realized that the defendant was penetrating her. Id. We held that the jury reasonably could have found that the victim, at the time of penetration, was physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act. Id.

As in Barrett, a rational jury could find beyond a reasonable doubt that Demery is guilty of sexual abuse. Morin was sufficiently awake before Demery penetrated her to realize that Demery was touching her and to open her eyes, but this evidence does not foreclose a finding of guilt. Morin testified that the attack “was very fast,” and that when she opened her eyes and looked at Demery, she “didn't get to do anything” before he attacked her. The testimony of two other witnesses further supports a finding that Morin was “incapable” when Demery penetrated her. The physician who treated Morin at the hospital testified that Morin said that she awoke to a man penetrating her, and one of Demery's cellmates testified that he overheard Demery admit to penetrating a person named Tia while she was sleeping. Based on this evidence, we conclude that a reasonable jury could find that Morin, like the victim in Barrett, was not “fully awake” until after penetration occurred, and that she was therefore incapable of declining participation or communicating unwillingness to engage in the sexual act.

B.

Demery next argues that he is entitled to a new trial because of erroneous evidentiary rulings by the district court. He first contends that the district court erred by admitting testimony of FBI agent Ryan O'Neil about an out-of-court statement made by Alfreda Longie, a witness for the prosecution. Longie, Demery's girlfriend, testified that while she and Demery were at his sister's house on the morning of the assault, Demery left without saying anything to anyone. The prosecutor asked Longie whether she previously told O'Neil that when Demery left, he said he was going to “Tia's.” Longie said she had not made such a statement to O'Neil. The government later called O'Neil, who testified that Longie told him that when Demery left the house, he said “I'm going to Tia's.”

Demery's only objection at trial to O'Neil's testimony about Longie's statement was based on hearsay. T. Tr. 255. The evidence was not offered for the truth of the matter asserted, see Fed.R.Evid. 801(c), so the hearsay objection was properly overruled. Demery raises a different contention on appeal, so we review it only for plain error. See United States v. Bell, 624 F.3d 803, 808 (7th Cir.2010); Fed.R.Evid. 103(a)(1). To establish plain error, Demery must show an obvious error that affected his substantial rights, and that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Extrinsic evidence of prior inconsistent statements is admissible under Rules 607 and 613(b), subject to a Rule 403 balancing test. See United States v. Durham, 470 F.3d 727, 731–32 (8th Cir.2006). Demery contends that O'Neil's testimony should have been excluded under Federal Rule of Evidence 403, because its probative value was substantially outweighed by the danger of unfair prejudice. The potential for unfair prejudice in this situation is that a jury might misuse evidence of the witness's prior inconsistent out-of-court statement, which is admissible only to impeach the witness's in-court testimony, as substantive evidence of guilt. The balancing test of Rule 403 serves to prevent a party from calling a witness, knowing her to be adverse, simply to admit under the guise of impeachment an out-of-court statement that implicates the defendant. See United States v. Buffalo, 358 F.3d 519, 522–23 (8th Cir.2004).

Despite this concern about potential abuse, however, our court has said that “the government's motive in eliciting testimony is irrelevant,” and we conduct the Rule 403 analysis on an objective basis. United States v. Logan, 121 F.3d 1172, 1175 (8th Cir.1997). The probative value of the impeachment evidence in this scenario typically is to raise doubts regarding the truthfulness of both the witness's trial testimony and her out-of-court statement, and thereby to suggest that the witness is not a credible person. Id.

The district court's decision to admit O'Neil's testimony was not an obvious error under Rule 403. Longie was with Demery shortly before and after the assault on Morin, and she had relevant testimony to give apart from Demery's statement about where he was going when he left the sister's house. In her trial testimony, however, she not only denied that Demery said he was destined for “Tia's” house when he departed, but also said that she observed no blood on Demery's boots or clothing when she saw Demery at home after the assault. Given this account, which supported the defense case, O'Neil's testimony about Longie's prior inconsistent statement had probative value in questioning her credibility. See Durham, 470 F.3d at 732. The...