                        United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  ___________

                                 No. 97-1539
                                  ___________
United States of America,               *
                                        *
           Plaintiff - Appellant,       *   Appeal from the United States
                                        *   District Court for the
     v.                                 *   District of North Dakota.
                                        *
Brent William Allery,                   *
                                        *
           Defendant - Appellee.        *
                                        *

                                  ___________

                         Submitted: October 22, 1997
                                       Filed: March 20, 1998
                                 ___________

Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.
                               ___________

HANSEN, Circuit Judge.

      The government appeals the district court’s order granting defendant
Brent William Allery’s post-trial motion for judgment of acquittal. The
government claims there is sufficient evidence to support the jury’s
verdict finding Allery guilty of abusive sexual contact by use of force in
violation of 18 U.S.C. § 2244(a)(1) (1994).      We agree and reverse and
remand.
                                    I.

      Viewing the evidence in the light most favorable to the verdict, a
reasonable jury could have found the following facts. At approximately
11:30 p.m. on June 24, 1995, the victim, Darcie Jackson, arrived home where
she lived with her boyfriend, Corey Delorme, and her children. Jackson
told Delorme, who was awake watching television, that she was going to bed.
She went to the bedroom where two of her children were already sleeping.
Jackson closed the window in the room and then fell asleep on the bed.

      Jackson next remembered awaking with someone lying on top of her
engaging in sexual intercourse with her. She testified as follows:

     When I woke up, [Allery] was having intercourse with me. I
     thought that was Corey, until I opened my eyes, and when I felt
     the hair, that was not Corey, and I pushed him away, and he was
     trying to kiss me on the mouth, and that’s when I smelled the
     alcohol, and I got scared, and I tried to—I tried to get away,
     and which I did, and that’s when I started hollering for Corey.


(Trial Tr. at 358-59.)

      After Jackson got away, Allery grabbed her and threw her back onto
the bed. Jackson then pulled Allery’s hair and pushed him away as she fell
off the bed to the floor. Allery then fled, jumping out the open bedroom
window from which he had originally entered.      Allery was subsequently
arrested after police found him asleep in a pick-up truck while wearing
only his underwear. Allery is an Indian and Jackson’s home is located on
an Indian reservation.

      Allery was indicted for one count of abusive sexual conduct by the
use of force in violation of 18 U.S.C. § 2244(a)(1). Following trial, a
jury convicted Allery of the




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charge. The district     court then granted Allery’s motion for judgment of
acquittal, ruling that   “the evidence does not sufficiently show the element
of ‘force,’ such that    a rational trier of fact could have found beyond a
reasonable doubt, that   the Defendant committed the crime of ‘abusive sexual
contact.’” (Dist. Ct.    Order and Mem. at 4.)

                                      II.

      The government argues that the district court erred in granting the
judgment of acquittal because there is sufficient evidence to support the
jury’s verdict finding Allery guilty of abusive sexual contact by use of
force. A district court has “very limited latitude” in ruling on a motion
for judgment of acquittal. United States v. Robbins, 21 F.3d 297, 298 (8th
Cir. 1994) (internal quotations omitted).      In exercising this limited
latitude, it “cannot weigh the evidence or assess the credibility of the
witnesses.” Id. at 299. Instead, the court “must determine whether the
evidence, viewed in the light most favorable to the government, is such
that a reasonably minded jury must have a reasonable doubt as to the
existence of any essential elements of the crime charged.” Id. (internal
quotations omitted). We apply these same standards on appeal. Id.

      The crime of abusive sexual conduct by use of force is proscribed by
18 U.S.C. § 2244(a)(1), which makes it unlawful to knowingly engage in
“sexual contact” with another person if to do so would violate 18 U.S.C.
§ 2241 if the sexual contact had been a “sexual act.” Section 2241(a)(1)
prohibits knowingly causing another person to engage in a sexual act “by
using force against that other person.”      The statute defines the term
“sexual contact” as “the intentional touching, either directly or through
the clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks of any person with the intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C.
§ 2246(3). Section 2244(a)(1) is applicable in this case by virtue of 18
U.S.C. § 1153, which grants the district court jurisdiction over this case
by providing that “[a]ny Indian who commits” certain offenses, including
§ 2244,




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“within the Indian country, shall be subject to the same laws and penalties
as all other persons committing” the offense “within the exclusive
jurisdiction of the United States.” See United States v. Goodlow, 105 F.3d
1203, 1206 (8th Cir. 1997); United States v. Demarrias, 876 F.2d 674, 675
(8th Cir. 1989). Thus, the essential elements of abusive sexual contact
by force in this case are: (1) knowingly and intentionally engaging in
sexual contact with another; (2) doing so with the intent to abuse,
humiliate, harass, degrade, or arouse or gratify a person’s sexual desire;
(3) the use of force in causing the sexual contact; (4) the defendant is
an Indian; and (5) the act occurred in Indian country. See 18 U.S.C. §§
2244(a)(1), 2241(a)(1), 2246(3), 1153.

      The parties stipulated that the fourth and fifth elements were met
in this case. Allery concedes, and the district court ruled, that the
first and second elements are supported by substantial evidence. The sole
issue here is whether there is sufficient evidence of the third
element—that Allery used force in causing the sexual contact.

      The term “force” is not defined in the statute. United States v.
Jones, 104 F.3d 193, 197 (8th Cir.), cert. denied, 117 S. Ct. 2470 (1997).
However, we have previously held:

     The requirement of force may be satisfied by a showing of the
     use, or threatened use, of a weapon; the use of such physical
     force as is sufficient to overcome, restrain, or injure a
     person; or the use of a threat of harm sufficient to coerce or
     compel submission by the victim.

United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990) (quoting
H.R. Rep. No. 99-594, at 14 n.54a (1986), reprinted in 1986 U.S.C.C.A.N.
6186, 6194 n.54a). We have also repeatedly held that force sufficient to
prevent the victim from escaping the sexual contact satisfies the force
element. See Jones, 104 F.3d at 197; United States v. Bordeaux, 997 F.2d
419, 421 (8th Cir. 1993); Fire Thunder, 908 F.2d at 274; see also United
States v. Lauck, 905 F.2d 15, 18 (2d Cir. 1990).




                                    -4-
      In support of the judgment of acquittal, Allery argues that the force
element in § 2241(a)(1) “is present only if the sexual contact results from
restraint that is such that the victim cannot escape the sexual contact.”
(Appellee’s Br. at 5) (emphasis added). Allery claims that because Jackson
was eventually able to escape, force was not present.       We reject this
argument. Eventual escape by the victim of the sexual contact does not
prevent a finding that the sexual contact occurring immediately before the
escape was caused by using force. The statute prohibits “caus[ing] another
person to engage in” sexual contact “by using force against that other
person.” 18 U.S.C. § 2241(a)(1). This language does not require force
that prevents the eventual escape of the victim. Instead, it requires the
use of force sufficient to restrain the victim and allow the defendant to
engage in sexual contact. See Lauck, 905 F.2d at 18 (“The ‘force’ that the
statute condemns . . . is force that, by being used against the other
person, results in a sexual contact.”) Although proof that the victim was
unable to escape is sufficient to sustain a finding of such force, it is
not necessary to a finding that force was used.

      After reviewing the record in this case, we are convinced there is
sufficient evidence of force to support the jury’s guilty verdict. Jackson
testified that Allery was lying on top of her and having sexual intercourse
with her when she awoke.      When Jackson realized Allery was not her
boyfriend, she attempted to push him away.        The record supports the
reasonable inference that Allery continued to engage in sexual intercourse
with Jackson while she tried to push him away, and that the two struggled
before Jackson succeeded in pushing Allery away. The jury could conclude
that Allery was physically restraining Jackson by lying on top of her and
resisting her attempts to push him away while at the same time he was
having sexual intercourse with her. Thus, the jury could find that Allery
was engaging in sexual contact with Jackson while physically restraining
her. Such physical restraint of the victim is sufficient to constitute
force under the statute.      See Fire Thunder, 908 F.2d at 274 (“The
requirement of force may be satisfied by . . . the use of such physical
force as is




                                    -5-
sufficient to . . . restrain . . . a person.”).   Therefore, the jury
reasonably could have found that the government proved the essential
element of force.


                                  III.

      We hold that there is sufficient evidence to support Allery’s
conviction by the jury for abusive sexual contact by use of force. We
therefore reverse the judgment of acquittal and remand the case to the
district court for entry of judgment on the jury’s guilty verdict, and for
further proceedings thereon.

     A true copy.

           Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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