                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                              April 26, 2010

                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 08-5171
 v.
                                              (D.C. No. 4:08-CR-00022-GKF-1)
                                                       (N. Dist. Okla.)
 KIMBERLY CHANCELLOR, a/k/a
 Kim Chancellor,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR, and GORSUCH, Circuit Judges.


      Kimberly Chancellor appeals his convictions for one count of aggravated

sexual abuse of a minor and two counts of attempted aggravated sexual abuse of a

minor in violation of 18 U.S.C. §§ 1151, 1153, 2241(c), 2246(2)(A)-(D). On

appeal, he contests the district court’s issuance of jury instructions and the


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with the terms and conditions of 10th
Cir. R. 32.1 and 10th Cir. R. 32.1. After examining the briefs and appellate
record, this panel has determined unanimously to grant the parties’ request for a
decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir.
R. 34.1(G). The case is therefore ordered submitted without oral argument.
sufficiency of the evidence underlying his convictions, and asserts that

cumulative error warrants reversal. We affirm.

      At the time of the offenses, Mr. Chancellor lived in Salina, Oklahoma. In

the summer of 2003, his daughter’s eleven-year old friend, A.D.F., spent the night

with his daughter at his house. During the night, A.D.F. woke up and went to the

restroom. While there, Mr. Chancellor entered the restroom and raped her.

A.D.F. did not say anything about the event until she was approached by federal

investigators several years later.

      C.A., another victim alleged in the indictment, attended a 2007 New Year’s

Eve gathering at Mr. Chancellor’s mother’s house, where she was offered and

imbibed alcoholic beverages. Thereafter, she and others went to Mr. Chancellor’s

house to sleep. At some point that night, she awoke to someone screaming. She

saw Mr. Chancellor leave the room. She also noticed that her pants had been

pulled down, and her private region was sore and covered in an unusual liquid.

K.R.H., Mr. Chancellor’s daughter, observed the event and later testified that she

saw Mr. Chancellor raping or attempting to rape C.A. [Aplt. Br. at 12-13].

      Mr. Chancellor also attempted to rape K.R.H. She testified that on May 20,

2007, Mr. Chancellor crawled into bed with her, touched her breasts over her

shirt, attempted to pull her pants down, and moved his naked, erect penis against

her through her pants. Mr. Chancellor’s ex-girlfriend, Janet Wells, witnessed the

assault and attempted to coax Mr. Chancellor out of the room. He eventually

                                         -2-
went to sleep. Ms. Wells contacted an attorney to report the incident and get

help.

        On February 6, 2008, Mr. Chancellor was indicted on two counts of

violating 18 U.S.C. §§ 1151, 1153, 2241(c) and 2246(2)(A)-(D), and the United

States Marshals began a fugitive investigation to locate him. Mr. Chancellor

relocated several times during the weeks subsequent to his indictment.

Investigators eventually learned that Mr. Chancellor had been arrested for public

intoxication in Dallas, Texas and was staying at a homeless shelter there. He was

arrested and returned to the Northern District of Oklahoma. On April 8, 2008, a

superceding indictment issued, adding an additional count under the same

statutes. A jury convicted Mr. Chancellor of all three counts, and he was

sentenced to concurrent life terms on each count. This appeal followed.

        Mr. Chancellor first contends the district court erred in instructing the jury

as to the jurisdictional element. Specifically, he refers to Instructions 19, 24, and

29, which each read in relevant part:

        Fifth: The offense was committed in Indian Country, at Salina,
               Oklahoma, in the Northern District of Oklahoma. . . .

        As to the fifth element of this offense, you are further instructed that
        the United States and the defendant have stipulated that the residence
        of the defendant is within Indian Country located in the Northern
        District of Oklahoma. You may thus accept the fifth element as being
        proved.

See Rec., vol. 1, doc. 58 at 23, 28, 41. Mr. Chancellor argues that “[b]y telling


                                           -3-
the jury they must accept the fifth element as being proved (which contains the

language ‘[t]he offense was committed . . .”), the jury was instructed that the

criminal offenses did in fact occur. Therefore, the jury no longer had to

determine if the crimes of rape and attempts to engage in sex with minors

happened.” Aplt. Br. at 21.

      In general, “[w]e review de novo the jury instructions as a whole and view

them in the context of the entire trial to determine if they accurately state the

governing law and provide the jury with an accurate understanding of the relevant

legal standards and factual issues in the case.” United States v. Bedford, 536 F.3d

1148, 1152 (10th Cir. 2008) (citations and quotation marks omitted). Where, as

here, the defendant raises his claim of instructional error for the first time on

appeal, our review is typically governed by the plain-error standard. See United

States v. Hutchinson, 573 F.3d 1011, 1019 (10th Cir. 2009). Under that standard,

defendant “is entitled to relief only if he can show that the district court’s jury

instruction constituted (1) error, (2) that is plain, and (3) affects his substantial

rights, as well as (4) the fairness, integrity, or public reputation of judicial

proceedings.” Id. Mr. Chancellor asserts the alleged errors were structural in

nature, and thus defy plain error review. See, e.g., Aplt. Br. at 23 (“[S]tructural

error at trial requires reversal.”); see also United States v. Gonzalez-Huerta, 403

F.3d 727, 733 (10th Cir. 2005) (“Structural errors deprive defendants of ‘basic

protections’ without which ‘a criminal trial cannot reliably serve its function as a

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vehicle for determination of guilt or innocence, and no criminal punishment may

be regarded as fundamentally fair.’” (citation omitted)).

      Viewing the instructions as a whole, we see no error – structural or plain –

in the disputed jury instructions. See Estelle v. McGuire, 502 U.S. 62, 72 (1991)

(“[T]he instruction may not be judged in artificial isolation but must be

considered in the context of the instructions as a whole and the trial record.”

(internal quotation marks and citation omitted)). The introductory jury

instructions advised the jury of the presumption of innocence attached to Mr.

Chancellor, see Rec., vol. 1, doc. 58 at 2, and described the burden of proof, id. at

8. Furthermore, each disputed instruction commanded the jury to find each of

the listed elements beyond a reasonable doubt. Id. at 23, 28, 41. The instructions

did not “t[ell] the jury Mr. Chancellor was guilty” nor did they otherwise contain

a command to the jury that they “must” accept that “the offenses were true.” See

Aplt. Br. at 21. Quite the contrary, each disputed instruction charged the jury

with determining each element of the offense beyond a reasonable doubt,

including whether the offense occurred in the first instance. See Rec., vol. 1, doc.

58, at 23, 28, 41.

      Mr. Chancellor also claims that the evidence was insufficient to sustain his

convictions on all three counts. We review sufficiency of the evidence de novo,

viewing the evidence as a whole and in the light most favorable to the

government, “asking whether any rational trier of fact could have found the

                                         -5-
defendant guilty of the crime beyond a reasonable doubt.” United States v.

Parker, 553 F.3d 1309, 1316 (2009). Our review is deferential to the jury’s

factfinding, and we must sustain Mr. Chancellor’s conviction if any rational juror

could have found him guilty. Id. Moreover, the factfinder’s credibility

determinations are “virtually unreviewable on appeal.” United States v.

Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003). We will overturn a

jury’s credibility determination and disregard a witness’s testimony only if the

testimony is inherently incredible – that is, only if the events recounted by the

witness were impossible “under the laws of nature” or the witness “physically

could not have possibly observed” the events at issue. United States v. Oliver,

278 F.3d 1035, 1043 (10th Cir. 2001).

      Mr. Chancellor argues that the evidence was insufficient to support his

convictions because “[t]here was no physical evidence introduced at trial,” Aplt.

Br. at 28, and the victims’ testimony was “incredible.” Id. at 40-41. Mr.

Chancellor’s identification of conflicting witness testimony, 1 omissions in




      1
       See Aplt Br. at 32 (noting that C.A. had initially stated Mr. Chancellor
“had not done anything inappropriate with her,” yet eight months later, she
“contradicted her previous claim . . . .”).

                                         -6-
testimony, 2 and delays in reporting by the child rape victim3 fail to overcome the

presumption in favor of the jury’s findings. 4 See Tapia v. Tansy, 926 F.2d 1554,

1562 (10th Cir. 1991) (“We do not sit as a new trier of fact. We presume that the

jury’s findings in evaluating the credibility of each witness are correct.”).

      Because we are not free to weigh the credibility of witnesses whose
      testimony is not inherently incredible, [the defendant’s sufficiency of
      the evidence] challenge fails as a matter of law, and we need not
      analyze the elements of each conviction or point out the over-
      whelming evidence in the record supporting them.

See United States v. Smith, 131 F.3d 1392, 1399 (10th Cir. 1997).

      Mr. Chancellor also asserts the district court erred in instructing the jury

“that they could consider the evidence that Mr. Chancellor left as consciousness

of guilt.” Aplt. Br. at 43. He argues that viewing the facts as a whole, “they

demonstrate that the evidence was insufficient to establish Mr. Chancellor’s going

to Dallas resulted from feelings of guilt attributable to the offenses charged in the

instant case.” Id. at 45. We review “the district court’s decision to give a


      2
         Id. at 34 (“K.R.H.’s testimony should be disregarded on review because
. . . according to K.R.H. [there were five people] in the bedroom as Mr.
Chancellor was allegedly attempting to engage in sex with C.A., however C.A.
never alluded or mentioned other persons . . . .”).
      3
        See id. at 38 (“[I]t took A.D.F. about five years to tell anyone about the
alleged incident.”).
      4
        We also note that Mr. Chancellor mischaracterizes the facts. Compare id.
at 32 (“there was no identification of Mr. Chancellor as being the person
attempting to engage in sex with C.A. [on the date of the offense]”) with id. at 14
(“K.R.H. testified she saw her dad trying to have sex with C.A., and that he did
have sex with C.A.”).

                                         -7-
particular jury instruction for abuse of discretion . . . .” United States v. Fria

Vazquez Del Mercado, 223 F.3d 1213, 1216 (10th Cir. 2000) (quotation omitted).

      In a criminal prosecution, evidence of flight possesses a strong presumption

of admissibility. United States v. Martinez, 681 F.2d 1248, 1256 (10th Cir. 1982)

(per curiam). Evidence of flight may be admitted even when more than one

possible explanation exists for the departure. See United States v. Lepanto, 817

F.2d 1463, 1467 (10th Cir. 1987) (guilt of the charged offense need not be only

possible inference to be drawn from evidence of flight, it need only be a

permissible inference). In this case, the district court instructed the jury that Mr.

Chancellor’s departure was neither dispositive nor necessarily inculpatory:

          Evidence that the defendant immediately fled after having been
      accused of committing a crime is a circumstance that, if proven, can
      be considered by the jury as showing a consciousness of guilt on the
      part of the defendant.
          In your evaluation of this evidence of flight you may consider
      that there may be reasons–fully consistent with innocence–that could
      cause a person to flee. Fear of law enforcement or a reluctance to
      become involved in an investigation or simple mistake may cause a
      person who has committed no crime to immediately flee.
          Whether or not evidence of immediate flight on the part of the
      defendant causes you as members of the jury to find a consciousness
      of guilt on his part and the significance, if any, of that consciousness
      of guilt is entirely up to you as the sole judges of the facts of this
      case.

See Rec., vol. 1, doc. 58 at 19.

    Because Mr. Chancellor’s departure from his home in Oklahoma to live on the

streets of Dallas, Texas occurred at the same time that law enforcement began


                                          -8-
investigating him and notifying his acquaintances that Mr. Chancellor was facing

charges, consciousness of guilt was a permissible inference to be drawn from his

flight. The district court “correctly cautioned the jury that it was up to them to

determine whether the evidence proved flight and the significance, if any, to be

accorded such a determination.” United States v. Kennard, 472 F.3d 851, 855

(11th Cir. 2006). Mr. Chancellor has not shown that the district court abused its

discretion in instructing the jury that it could consider his flight in determining

whether he was guilty. See id.

    Because we have rejected each of Mr. Chancellor’s claims of error, there can

be no cumulative error. Accordingly, we AFFIRM.


                                 ENTERED FOR THE COURT


                                 Stephanie K. Seymour
                                 Circuit Judge




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