                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  ________________

                                     No. 06-4034
                                  ________________

United States of America,                   *
                                            *
             Appellee,                      *
                                            *       Appeal from the United States
      v.                                    *       District Court for the
                                            *       District of South Dakota.
Leroy Clifford Reddest, also known          *
as Leroy Clifford Jack,                     *
                                            *              [PUBLISHED]
             Appellant.                     *

                                  ________________

                                  Submitted: September 25, 2007
                                      Filed: January 23, 2008
                                  ________________

Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
                      ________________

HANSEN, Circuit Judge.

       Appellant Leroy Reddest appeals his convictions of five counts of sexual abuse.
Reddest argues that the evidence is insufficient to support the jury's determination on
count IV (that he digitally penetrated the victim's genital opening) and that the district
court erred by denying his motion for judgment of acquittal on all five counts. We
reverse Reddest's conviction on count IV, and we affirm his convictions on the
remaining counts.
                                           I.

       Consistent with our standard of review, the following facts are described in the
light most favorable to the verdict. United States v. Honarvar, 477 F.3d 999, 1000
(8th Cir. 2007). M. Y., a minor, was born on January 8, 1990, and she was raised by
her maternal grandparents, who legally adopted her at age 8. During M.Y.'s
childhood, it was not uncommon for Reddest to stay at her grandparents' home.
Reddest was a close family friend, and at the time of the sexual abuse, Reddest was
staying at M.Y.'s grandparents' home helping M.Y.'s grandfather with odd jobs that
he was physically unable to perform. M.Y. and her cousins were comfortable with
Reddest and called him "Grandpa Leroy."

       Reddest sexually abused M.Y. several times between February and November
of 2003. Reddest was 57 years old at the time of the abuse; M.Y. was 13. On two
occasions, Reddest forced sexual intercourse with M.Y. and threatened to harm her
if she told anyone about the assault. M.Y. also testified that Reddest touched her
genitalia on a separate occasion. All three incidents took place in M.Y.'s grandparents'
home in the Kyle Community on the Pine Ridge Indian Reservation.

       M.Y. did not disclose this abuse until the summer of 2005. In July of 2005,
following a fight with her grandmother, M.Y. attempted to commit suicide. She was
treated for serious injuries at a hospital on the Pine Ridge Reservation and was
eventually transferred to a psychiatric hospital in Rapid City, South Dakota. There,
during counseling sessions, M.Y. informed a counselor that Reddest had sexually
abused her.

      Approximately one month later, the FBI began investigating Reddest. During
the course of the investigation, Reddest gave two short statements to Special Agent
Lauck. In both statements, Reddest apologized to M.Y. for his prior sexual conduct.



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Prior to trial, Reddest moved to suppress these statements, but the district court denied
Reddest's motion, and that decision is not disputed on appeal.

       Following the FBI's investigation, Reddest was indicted on three counts of
aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a) and 1153, and three
counts of sexual abuse of a minor, in violation of 18 U.S.C. §§ 2243(a) and 1153.
Reddest pleaded not guilty, and a three-day jury trial was held. At the close of the
Government's evidence, Reddest moved for judgment of acquittal on all counts. The
district court reserved ruling on count III until after the jury returned its verdict, but
the district court denied Reddest's motion on the remaining counts. Reddest then put
on evidence and renewed his motion for acquittal at the close of all evidence. The
district reserved ruling on count III and denied the motion as to all of the other counts.
After deliberating, the jury returned guilty verdicts on counts I, II, IV, V, and VI, and
acquitted Reddest on count III. Thereafter, the district court sentenced Reddest to 292
months of imprisonment and 10 years of supervised release. This appeal follows.

                                           II.

       As a threshold matter, Reddest argues that his challenge to the sufficiency of
the evidence supporting his conviction under count IV, for penetration of the genital
opening, is meaningfully different from his argument that the district court erred by
denying his motion for judgment of acquittal on all counts. Reddest contends that "the
questions and applicable authorities are distinct," (Reddest's Reply Br. 14), but he
does nothing to explain how this distinction has any meaningful impact on our review
here.

      For purposes of this appeal, we discern no meaningful distinction between the
de novo standard used to review the sufficiency of the evidence to support a guilty
verdict and the de novo standard used to review the district court's ruling on a
defendant's motion for judgment of acquittal. In both inquiries, we review the same

                                           -3-
evidence, view the evidence in the light most favorable to the Government, and ask
the same legal question: whether the evidence is sufficient to permit a reasonable jury
to conclude that the defendant is guilty beyond a reasonable doubt. Compare United
States v. Hilliard, 490 F.3d 635, 640 (8th Cir. 2007) (judgment of acquittal), with
United States v. Piwowar, 492 F.3d 953, 955 (8th Cir. 2007) (sufficiency of the
evidence). Accordingly, we address both of Reddest's arguments using the same
standard of review. See United States v. Johnson, 18 F.3d 641, 645 n.7 (8th Cir.
1994) (construing a challenge to the district court's denial of a motion for judgment
of acquittal and a sufficiency-of-the-evidence challenge as indistinguishable for
purposes of review); United States v. Roman, 728 F.2d 846, 860 n.9 (7th Cir.), cert.
denied., 466 U.S. 977 (1984) (same).

      A. Counts I and II

      Reddest argues that the evidence is insufficient to support his convictions under
counts I and II of the indictment. Counts I and II arose out of the same assault. Count
I charged Reddest with engaging in sexual intercourse by use of force and threats,
§ 2241(a), and count II charged Reddest with engaging in sexual intercourse with a
victim between the ages of 12 and 16, who was at least 4 years younger than him, §
2243(a).

       The evidence supporting counts I and II, construed in the light most favorable
to the government, is sufficient to permit a reasonable jury to convict Reddest. The
Government's evidence showed that Reddest first abused M.Y. in February of 2003.
When she went to sleep in her grandparents' livingroom on the night of the assault,
Leroy was lying on the livingroom floor in front of the TV. M.Y. was close by on the
livingroom couch. She awoke when she felt something rubbing her leg, and she then
saw Reddest get on top of her. M.Y. tried to scream, but Reddest covered her mouth
with his hand and told her that if she told anyone about the incident he would beat her
up. M.Y.'s basketball shorts were pulled down, and, despite her resistance, Reddest

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penetrated her vagina with his penis for approximately five minutes. In addition to
M.Y.'s testimony, the Government introduced the statement that Reddest made to
Special Agent Lauck, in which Reddest wrote: "I'm sorry I laid on top of you at night
at the trailer and did a little sex. [sic]. Leroy." (Trial Tr. at 381).

      Circumstantial evidence also supports Reddest's convictions on counts I and II.
M.Y.'s grandparents observed changes in her behavior around the time of the sexual
assaults. M.Y. began doing small loads of laundry late at night and also started taking
showers late at night, behavior that an expert witness testified is consistent with sexual
abuse. Additionally, M.Y. attempted to install a lock on her door to protect herself,
eventually installing a deadbolt lock with the help of her grandfather.

      M.Y.'s testimony at trial, coupled with the corroborating evidence described
above, is ample evidence both that Reddest used force to have sexual intercourse with
M.Y. after threatening her with serious bodily injury, and that Reddest, at age 57, had
sexual intercourse with M.Y. when she was 13 years old.

       Reddest argues that M.Y.'s inconsistent testimony at trial and her prior
inconsistent statements undermine the Government's case. But credibility
determinations and the weighing of conflicting evidence are committed to the jury.
Piwowar, 492 F.3d at 956. In fact, due to the jury's superior opportunity to evaluate
the evidence presented, the jury's credibility determinations are "virtually
unreviewable on appeal." United States v. Davis, 471 F.3d 938, 948 (8th Cir. 2006)
(internal marks omitted). The conflicting evidence offered at trial affords no basis for
reversal here.

       Because the evidence is sufficient to support Reddest's convictions on counts
I and II, we affirm those convictions.




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      B. Counts V and VI

       Counts V and VI of the indictment charge violations of the same statutes as
counts I and II, but are based on an independent assault that took place on a different
day. As with counts I and II, we conclude that the evidence is sufficient to permit a
reasonable jury to convict Reddest of counts V and VI. M.Y. testified that just prior
to the start of school in 2003, Reddest assaulted her in her bedroom. After returning
home late at night after walking with friends, she went to bed. As she was falling
asleep, Reddest entered her room, got on top of M.Y., grabbed her arms, and pulled
back her hair. M.Y. resisted by attempting to hit the wall, but Reddest put his hand
over her mouth and penetrated her vagina with his penis for approximately five
minutes. At the end of the assault, before Reddest left M.Y.'s room, he threatened to
beat her up if she told anyone about the incident.

      In addition to this testimony, the circumstantial evidence of M.Y.'s behavioral
changes described above supports Reddest's convictions on counts V and VI of the
indictment. The evidence as a whole is sufficient to permit a reasonable jury to
conclude, on count V, that Reddest used force to have sexual intercourse with M.Y.
and then threatened her with serious bodily injury near the end of the assault. The
evidence is also sufficient to permit a reasonable jury to conclude, under count VI,
that Reddest, at age 57, had sexual intercourse with M.Y. when she was 13 years old.
As discussed above, credibility determinations and the weighing of conflicting
evidence are squarely committed to the jury, affording no basis for reversal here. We
affirm Reddest's convictions on counts V and VI.

      C. Count IV

      Reddest argues that the evidence is insufficient to support Reddest's conviction
for penetration of the genital opening under count IV of the indictment. Count IV
charged Reddest with engaging in a "sexual act" with a person at least four years

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younger than him, who was over the age of 12 but under the age of 16, in violation of
18 U.S.C. § 2243(a). Consistent with one of four definitions of "sexual act" codified
at 18 U.S.C. § 2246(2), the indictment describes Reddest's particular sexual act on this
occasion as "penetration of the genital opening . . . by the finger . . . with the intent to
abuse, humiliate, harass, degrade and arouse and gratify the sexual desire of any
person." (Indictment at 2.)

       The evidence at trial supporting count IV showed that on the night of this
alleged sexual assault, Reddest was sleeping on M.Y.'s grandparents' livingroom
floor, and M.Y. was sleeping nearby on the livingroom couch. M.Y.'s cousin was
also sleeping in the room. M.Y. woke up to Reddest rubbing her leg. Reddest then
reached inside her underwear to touch her, and he only stopped touching her when she
called out her cousin's name.

        Specifically, M.Y. testified that Reddest's finger went "[r]ight in my – almost
close to my [hand gesture]." (Trial Tr. at 143.) The prosecutor then asked M.Y. what
her circular hand gesture referred to, to which she replied, "[m]y hole." (Id. at 144.)
M.Y. then affirmed that she considered her hole a part of her vagina, and affirmed that
her hole was "where a woman puts the tampon in." (Id.) On cross-examination, M.Y.
testified that Reddest's hand was inside her underwear. (Id. at 195.) But in response
to the question: "He hadn't actually put any part of his hand in you, had he," she
answered "[n]o," "[h]e touched my vagina." (Id.) And in response to the follow-up
question: "He just touched the outside of your vagina," M.Y. answered yes. (Id.) As
further evidence of the incident, the Government introduced Reddest's prior statement
in which he wrote: "[M.Y.], I'm sorry what [sic] happened that night at the trailer.
You had your legs on me that night and I pushed legs [sic] from me a couple of times
and I accidentally touched your private part. I really sorry [sic] for that. Leroy." (Id.
at 377).




                                            -7-
       Even when construed in the light most favorable to the verdict, this evidence
is insufficient to prove penetration of the genital opening. This is so even if we were
to give "genital opening" the construction urged by the Government–an interpretive
question we need not reach here. See United States v. Jahagirdar, 466 F.3d 149, 154-
55 (1st Cir. 2006) (holding that "penetration of the labia majora is sufficient" to prove
penetration of the "genital opening" under § 2246(2)(C)).

       The only evidence that is arguably sufficient to prove penetration of the genital
opening, however slight, is M.Y.'s statement that Reddest's finger went "[r]ight in my
– almost close to my [hole]." (Trial Tr. 143.) This description of the assault is
ambiguous; it is not clear where Reddest's finger was or how "close" it was to the
genital opening. Under the terms of the statutory provision charged by the
Government, these facts matter–yet the Government did little to clarify them further.
See United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir. 1991) (recognizing the
anatomical specificity of the definition of a "sexual act," reviewing the evidence, and
concluding that the complaining witness's testimony "lack[ed] the necessary
specificity" to sustain the conviction). It is also not clear whether the second half of
M.Y.'s statement ("almost close to my [hole]") retracts, clarifies, or modifies the first
half ("[r]ight in my").

       We recognize that when read in isolation, M.Y.'s statement that Reddest's finger
was "in" a vaguely identified location could imply at least slight penetration of M.Y.'s
labium. But even when construed in the light most favorable to the verdict, this
single, nondescript, internally inconsistent statement laden with ambiguity is
insufficient to permit a reasonable jury to find Reddest guilty beyond a reasonable
doubt on count IV. "[W]e cannot sustain a conviction based on mere suspicion or
possibility of guilt." Id. (internal marks omitted). The remaining evidence of the
incident clearly fails to prove penetration of the genital opening. M.Y. affirmed that
Reddest "hadn't actually put any part of his hand in [her]," and said that Reddest
"touched [her] vagina." (Trial Tr. at 195.) Immediately thereafter, she affirmed that

                                          -8-
Reddest "just touched the outside of [her] vagina." (Id.) Not only does this testimony
support Reddest's position, it also makes clear that M.Y. was not using the word
"vagina" in its anatomically correct sense, and accordingly, M.Y.'s testimony that
Reddest touched her vagina, or the outside of her vagina, is minimally helpful to the
Government's position.

      We note that at oral argument before this court the Government suggested that
when M.Y. made her circular hand gesture to show approximately where Reddest
touched her, she placed her finger on the edge of the "hole" she made with her other
hand. If substantiated, this may strengthen the Government's position. But nothing
more than M.Y.'s circular gesture is documented in the transcript. It is elementary that
we will not consider "evidence" that is not included in the record of the proceedings
below. See Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir.
1993) ("Generally, an appellate court cannot consider evidence that was not contained
in the record below."). Accordingly, we are constrained from considering the
Government's explanation of the particulars of M.Y.'s alleged demonstration.

      In sum, we conclude that the Government did not meet its burden of proof as
a matter of law; no reasonable jury could find Reddest guilty of penetration of the
genital opening beyond a reasonable doubt based on the ambiguous and nonspecific
evidence produced by the government. See Johnson, 18 F.3d at 645-46 (standard of
review).

       Attempting to salvage a conviction on count IV, the Government contends that
Reddest's conviction should stand because even if the evidence did not establish
penetration of the genital opening under § 2246(2)(C), the evidence did establish an
alternative definition of "sexual act" codified at § 2246(2)(D): "[T]he intentional
touching, not through the clothing, of the genitalia of another person who has not
attained the age of 16 years." Even though the indictment did not allege
§ 2246(2)(D)'s definition in count IV, and in fact specifically alleged digital

                                          -9-
penetration as the crime committed, the Government argues that this "variance"
between the proof at trial and the indictment did not prejudice Reddest.

       The Government did not advance this argument before the district court when
it was resisting Reddest's motions, and we believe that its conviction must rise or fall
on the charge it chose to bring and on the instructions submitted to the jury, neither
of which was predicated on the alternative definition it now proposes.

      We affirm Reddest's convictions under counts I, II, V, and VI. We reverse and
vacate his conviction on count IV and remand for entry of an amended judgment.
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