The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING MOTION FOR
JUDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL
Defendant, James Bruguier, moves for judgment of acquittal (Docket 94) alleging that there was insufficient evidence to support his conviction. Bruguier also moves for new trial (Docket 93) and states that a number of trial errors prejudiced him in such a way that a new trial is required in the interests of justice. The government resists both motions.
A jury convicted Bruguier of four counts of the six-count Second Superseding Indictment following his jury trial that began on August 25, 2011. Docket 86. Bruguier was convicted of counts two, three, four, and six, which were sexual abuse of an incapacitated person, burglary, aggravated sexual abuse, and sexual abuse of a minor. He was acquitted of counts one and five, which were aggravated sexual abuse and attempted sexual abuse. Bruguier does not contest his conviction on count six.
Bruguier contends that the evidence was insufficient to support his conviction because the complaining victims and other witnesses changed their stories, and many witnesses were friends or had family ties to each other that led them to concoct a story against him. Bruguier argues that based on these circumstances, no reasonable jury could have found him guilty beyond a reasonable doubt, and judgment of acquittal is appropriate. Bruguier also claims that the court improperly allowed into evidence the fact that he had a past criminal conviction, excluded one of the victim's criminal convictions, and excluded that victim's other allegations of improper sexual conduct against others. Bruguier also contends that the prosecutor made improper comments in closing argument. Bruguier alleges that these errors, harmless in other circumstances, caused a miscarriage of justice in a close case like his and warrants a new trial.
I. Motion for Judgment of Acquittal Federal Rule of Criminal Procedure 29 states that the court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29. "The court may set aside the verdict and enter an acquittal" even after the jury has returned its guilty verdict. Id. When the court considers this motion for judgment of acquittal, it views the evidence in the light most favorable to the government and asks if the evidence is sufficient so that a reasonable jury could find defendant was guilty beyond a reasonable doubt. United States v. Reddest, 512 F.3d 1067, 1070 (8th Cir. 2008). The jury's verdict must be upheld even "[i]f the evidence rationally supports two conflicting hypotheses[.]" United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004) (citations omitted). The court will not upset the jury's determination of the credibility of the witnesses without extraordinary circumstances. United States v. Hakim, 491 F.3d 843, 845-46 (8th Cir. 2007); United States v. Hayes, 391 F.3d 958, 961 (8th Cir. 2004).
The jury found Bruguier guilty of sexual abuse of an incapacitated person, burglary, aggravated sexual abuse, and sexual abuse of a minor. Bruguier does not contest the sexual abuse of a minor conviction, which leaves three counts for consideration. To prove sexual abuse of an incapacitated person, the government had to prove that Bruguier knowingly caused the victim to engage in a sexual act, that the victim was physically incapable of declining participation in and communicating unwillingness to engage in that sexual act, that Bruguier was an Indian, and that the offense took place in Indian country. First, Bruguier stipulated in all counts that he is an Indian and the alleged activities occurred in Indian country. Mike Miller and Tracie Thunder Horse*fn1 both testified that they saw Bruguier engage in sexual conduct with Crystal Stricker, and that they could see Stricker was either unconscious or unable to consent to that conduct. Stricker testified that she did not agree to have sex with Bruguier, and she does not remember what happened that night because she consumed too much alcohol.
Bruguier claims Stricker told inconsistent stories and that she was afraid of her allegedly abusive partner, Miller, so she went along with his version of events. Bruguier also claims that Miller's sister, Thunder Horse, told inconsistent versions of what occurred that evening. Inconsistencies or conflicts in the evidence, however, will be resolved in the government's favor. United States v. Piwowar, 492 F.3d 953, 955 (8th Cir. 2007) (citations omitted). The jury saw all three witnesses testify, heard Bruguier's theory of the case as well as his testimony, and concluded that there was sufficient evidence to find him guilty beyond a reasonable doubt. Viewing the evidence in the light most favorable to the verdict, a reasonable jury could have found Bruguier guilty beyond a reasonable doubt, and the court will not disturb that finding absent extraordinary circumstances. Hakim, 491 F.3d at 845-46.
In count three, the government had to prove that Bruguier, an Indian in Indian country, entered or remained in an occupied structure, in the nighttime, with the intent to commit the felony of sexual assault. The government offered the testimony of T.S., a minor, who testified that Bruguier crawled in the bedroom window of her mother's house at night and sexually assaulted T.S. The jury heard both T.S.'s and Bruguier's account of that evening and after weighing the credibility of both witnesses they believed T.S. This evidence is sufficient to uphold the jury's verdict.
For count four, aggravated sexual abuse, the government had to prove that Bruguier knowingly caused T.S. to engage in a sexual act through the use of force, and that Bruguier was an Indian in Indian country. T.S. testified that on the evening in question, Bruguier hit her on the head with a hair spray can and raped her. This evidence is enough to uphold the verdict because the "[t]estimony of a rape victim herself, if believed beyond a reasonable doubt, is sufficient to support a finding of guilt." Docket 85 at 19 (citing Final Instruction No. 11 -- Testimony). Even so, the government also offered testimony of Della Stricker, who testified that T.S. told her that she was raped by Bruguier soon after it happened. The evidence was sufficient for a reasonable jury to find Bruguier guilty beyond a reasonable doubt.
Bruguier claims that T.S. is not believable because she waited seven months to tell her story. Bruguier also insinuates that T.S.'s story is questionable because she has family ties and a friendship with Crystal Stricker and another complaining witness, Vicki Johnson. The jury saw T.S., Johnson, and Stricker testify at trial and weighed the credibility of those witnesses against Bruguier to make its determination. There was nothing so incredible about T.S.'s testimony that would require its rejection as a matter of law. Piwowar, 492 F.3d at 955. Additionally, the court will not infer improper conduct from a witness's hesitancy to come forward with allegations of abuse or from her ties to other complaining witnesses.
Bruguier merely alludes to the same theory of the case that he argued to the jury, and there are no extraordinary circumstances compelling the court to reject the jury's assessment of the witnesses' credibility. Because the preference is to uphold the jury's conviction unless the evidence is not sufficient for a jury to find Bruguier ...