United States v. Demery, No. 10-2053 (8th Cir. 2011)
Annotate this CaseAppellant was convicted of abusive sexual contact in Indian country, sexual abuse in Indian country, and assault resulting in serious bodily injury in Indian country. Appellant appealed the sufficiency of the evidence to support his conviction of sexual abuse; argued that he was entitled to a new trial because of erroneous evidentiary rulings by the district court; and raised three challenges to his sentence. The court held that there was sufficient evidence for a reasonable jury to find that appellant's victim 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. The court also held that the district court did not err by admitting testimony of a Federal Bureau of Investigation agent about an out-of-court statement made by a witness to the prosecution under Federal Rule of Evidence 403 and by admitting testimony from a witness that the victim identified appellant as her attacker during the drive to the hospital where any error was harmless and the testimony was largely cumulative of other evidence. The court affirmed all respects of the sentence except for the sentence imposed in Count One where appellant was sentenced to 15 years imprisonment for abusive sexual contact when the government conceded that the statutory maximum term was 3 years.
Court Description: Criminal case - Criminal law and sentencing. Evidence was sufficient to support defendant's conviction for sexual abuse as the evidence showed victim was incapable of declining participation or communicating unwillingness at the time penetration occurred; evidentiary challenges rejected; the government concedes that the district court erred by imposing a sentence longer than the statutory maximum on defendant's conviction for abusive sexual contact, and that sentence is vacated; written judgment was not inconsistent with the oral pronouncement of sentence; the language of a supervisory release provision for counseling and treatment did not improperly delegate a judicial function to the probation office; case remanded for the limited purpose of resentencing on Count I of the indictment.
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