Opinion
No. 18-30044
03-19-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SIDNEY CHARLES DECRANE, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 1:16-cr-00118-SPW-1 MEMORANDUM Appeal from the United States District Court for the District of Montana
Susan P. Watters, District Judge, Presiding Argued and Submitted March 5, 2019 Portland, Oregon Before: GRABER and BERZON, Circuit Judges, and TUNHEIM, Chief District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation.
Defendant Sidney Charles DeCrane stands convicted of abusive sexual contact with a minor, in violation of 18 U.S.C. § 2244(a)(3) (Count I), and two counts of attempted sexual abuse, in violation of 18 U.S.C. §§ 2243(a) and 2242(a)(2)(B) (Counts II and III). He challenges the sufficiency of the evidence. Viewing the evidence in the light most favorable to the prosecution, we must decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Kaplan, 836 F.3d 1199, 1211-12 (9th Cir. 2016). We affirm.
1. It is undisputed that the victim was between the ages of 12 and 16, that Defendant is more than four years older than the victim, that Defendant and the victim are Indian persons, that the victim correctly identified Defendant, and that the offense occurred in Indian Country. The victim testified that she awakened to find Defendant's hand, under the blanket that was covering her while she slept, first moving up her inner thigh and then touching her vagina underneath her gym shorts but over her underpants. We disagree with Defendant's argument that the victim's description of the event was "too fleeting" or "too indefinite" to support the conviction under § 2244(a)(3). See United States v. Neil, 312 F.3d 419, 420 (9th Cir. 2002) (affirming a § 2244(a)(3) conviction where the defendant "felt the girl's breasts and buttocks through her clothing").
2. With respect to the attempt counts (Counts II and III), Defendant challenges the element of intent, that is, whether the evidence permitted the jury to find beyond a reasonable doubt that Defendant intended skin-to-skin contact with the victim's genitalia. Circumstantial evidence and reasonable inferences drawn from it can sustain a conviction. United States v. Shea, 493 F.3d 1110, 1114 (9th Cir. 2007). Given the fact that the victim was asleep, in the middle of the night, under a blanket, and that Defendant reached under the blanket and under the victim's shorts without knowing what (if anything) she was wearing when he reached up to touch her vagina, the jury reasonably could infer beyond a reasonable doubt that Defendant intended skin-to-skin contact with the victim's vagina. See United States v. Doe, 842 F.3d 1117, 1122 (9th Cir. 2016) (holding that the trier of fact could have reasonably found the essential elements of the crime beyond a reasonable doubt because "a trier of fact can rely on common sense" (internal quotation marks omitted)).
3. Defendant also argues, as to Count III, that the government failed to prove that the victim was incapable of declining participation in, or communicating unwillingness to engage in, the sexual act. But the evidence showed that Defendant engaged in the act of attempt while the victim was asleep, which rendered her incapable of declining participation or communicating unwillingness.
AFFIRMED. BERZON, Circuit Judge, partially dissenting:
I concur with the majority that sufficient evidence existed to convict Sidney Decrane of abusive sexual contact with a minor in violation of 18 U.S.C. § 2244(a)(3) (Count I), but respectfully dissent from the holding that sufficient evidence existed to convict Decrane of attempted sexual abuse in violation of 18 U.S.C. §§ 2243(a), 2242(a)(2)(B) (Counts II & III). In my view, no rational trier of fact could find beyond a reasonable doubt that Decrane intended to make skin-to-skin contact with his victim's genitalia, as required for conviction of sexual abuse. See 18 U.S.C. § 2246(2)(D).
The majority concludes that a reasonable jury could find intent to make skin-to-skin contact based on the time of the incident, the fact that Decrane touched the victim's vagina above her underpants, and the fact that when he did so, Decrane reached under a blanket and shorts, and may not have known whether the victim was wearing anything underneath the shorts.
Touching through clothing, without more, is not enough to infer beyond a reasonable doubt intent to make skin-to-skin contact. At no time did DeCrane make skin-to-skin contact with the victim's genitalia. Nor did DeCrane express to anyone he intended to do so. The victim testified that she woke up to the feeling of DeCrane momentarily touching her vagina under her blanket and shorts and over her underpants. DeCrane may not have known whether his victim was wearing underpants when he reached to touch her. But it is a logical leap—one without basis in evidence—to conclude from this possible lack of knowledge an intent to make skin-to-skin contact. To do so, a reasonable juror would have to infer beyond a reasonable doubt that DeCrane believed his victim was not wearing underpants and so decided to touch her, intending to touch her skin. But that is an inference the evidence does not support to the required degree of certainty. We—or a reasonable juror—have no idea what DeCrane knew or believed at the time he reached under the blanket.
It is possible, of course, that Decrane did intend to make skin-to-skin contact when he touched his victim's underpants. Who knows what idiosyncratic sexual proclivities an individual who does such a thing may have? But that is the problem. Again, to sustain a conviction, a rational trier of fact must find the essential elements of a crime beyond a reasonable doubt. United States v. Kaplan, 836 F.3d 1199, 1211-12 (9th Cir. 2016). "[M]ere speculation" about an individual's sexual motives or proclivities does not meet that standard. United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010); see, e.g., United States v. Hayward, 359 F.3d 631 (3d Cir. 2004) (finding insufficient evidence to support sentence for sexual abuse where defendant had pushed a minor's head toward his penis, which was underneath his pants at the time).
Moreover, because there was no evidence, apart from touching the victim above her clothing, from which to infer intent, finding the evidence here sufficient for an attempted sexual abuse conviction would mean that many—perhaps most—convictions for sexual contact with a minor by touching genitalia above clothing would also constitute attempted sexual abuse of a minor, largely erasing the distinction between the two crimes. The same speculation that the defendant preferred to, and intended to, touch the victim directly on her skin—because why wouldn't he?—would be available almost always where the only actual touching was above clothing. But merging the two crimes contravenes Congressional intent to differentiate between the two types of conduct—sexual contact and sexual abuse. See Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) ("[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.").
I note that neither the government nor the majority has pointed to any case in which there was a conviction for attempted sexual abuse of a minor on evidence of intent to engage in skin-to-skin contact as scant as the evidence here. If there was even slightly more evidence of intent—if, for example, DeCrane tried to pull down the victim's underpants, or stated his desire to have sex with the victim, or had previously engaged in skin-to-skin contact with a minor's genitalia, see Fed. R. Evid. 404(b)(2)—I could agree that there would be sufficient evidence to justify affirming. But on the facts presented here—essentially the same facts that establish the sexual contact crime— I would hold that there was insufficient evidence to sustain DeCrane's conviction for sexual abuse.
I respectfully dissent.