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, Robert Ford, moves for judgment of acquittal (Docket 74) alleging that there was insufficient evidence to support his conviction. Ford also moves for a new trial (Docket 75) and states that a new trial is required in the interests of justice. The government resists both motions.
A jury convicted Ford of kidnapping, Count 2 of the two-count indictment, on July 19, 2012. Docket 70. He was acquitted of Count 1, which alleged sexual abuse of an incapacitated person.
Ford contends that the evidence was insufficient to support his conviction because the government failed to prove that Ford had the necessary intent to support a kidnapping conviction under 18 U.S.C. § 1201(a). Specifically, Ford argues that the government did not prove that "Ford held [the victim] for the purpose of preventing her from reporting a sexual attack." Docket 76 at 2. Ford's argument relies in part on the fact that the jury acquitted him of Count 1 in the indictment, sexual abuse of an incapacitated person, and that no jury could acquit Ford of Count 1 and simultaneously convict him of Count 2. Further, Ford argues that there is not a sufficient evidentiary basis to find that he had the required intent, and, therefore, a judgment of acquittal is appropriate.
Ford also contends that a new trial should be granted in the interest of justice because the testimonial evidence of the witnesses is incredible and because the jury was not properly instructed during the trial. Ford argues that the only evidence offered at trial in support of the kidnapping conviction was the testimony of the victim and such testimony was incredible. Ford also argues that the court failed to sufficiently respond to a jury question regarding the relationship between Counts 1 and 2. Ford alleges that these errors caused a miscarriage of justice and warrant 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 a 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 Ford guilty of kidnapping in violation of 18 U.S.C. § 1201(a). To prove kidnapping, the government had to prove that Ford unlawfully seized or confined the victim without her consent, that Ford held the victim for the purpose of preventing her from reporting a sexual attack, that the victim is an Indian, and that the offense took place in Indian country. Ford only raises issue with the second element, that Ford held the victim for the purpose of preventing her from reporting a sexual attack.
Ford argues that the jury could not have reasonably concluded that he held the victim for the purpose of preventing her from reporting a sexual attack because the jury found Ford not guilty of the charged sexual assault. Put differently, Ford contends that the victim could not have intended to report a sexual attack because according to the jury verdict, no sexual attack took place. Ford's reasoning is flawed because he implicitly argues that in order for one to report an alleged crime against a defendant, or at least to have the intent to do so, the defendant must be guilty of the alleged crime. Ford cites no case law to support his position and the court finds that his position is not true either logically or practically. An individual can report what he or she perceives to be a crime even if no actual crime took place.*fn1 To conclude otherwise would undermine the role of criminal investigations and the judicial process as a whole. Hence, the court finds that Ford's argument that a not guilty verdict for the sexual assault charge precludes a guilty verdict for the kidnapping charge lacks merit.
Ford also argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he had the necessary intent to commit a kidnapping, namely that he held the victim for the purpose of preventing her from reporting a sexual attack. Here, after hearing all the evidence, the jury reasonably concluded that the victim intended to report a sexual attack at the time Ford held her. Indeed, the victim reported the sexual attack once she had the opportunity. She immediately told a witness about the events that took place while defendant and the victim were in the victim's bedroom, the place where the alleged confinement took place. The victim then went to the Flandreau hospital that same day to have a rape kit administered, and she also reported the incident to the Flandreau police and made a statement to the FBI. The fact that defendant was later acquitted of the sexual assault crime does not negate the fact that the victim intended to report the attack at the time she was confined.
Ford argues that the victim's testimony is not believable, but he only offers his own testimony to show the contrary. As is often the case, the testimony of the victim and the defendant is inconsistent. 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 both of the witnesses testify and found beyond a reasonable doubt that there was sufficient evidence to find that Ford held the victim for the purpose of preventing her from reporting a sexual attack. Viewing the evidence in the light most favorable to the verdict, a reasonable jury could have found Ford guilty of kidnapping beyond a reasonable doubt, and the court will not disturb that finding absent extraordinary circumstances. Hakim, 491 F.3d at 845-46.
There are no extraordinary circumstances compelling the court to reject the jury's assessment of the facts. Thus, Ford's motion for ...