                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3687
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Robert Ford

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                             Submitted: May 17, 2013
                              Filed: Augsut 8, 2013
                                 ____________

Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
                         ____________

SMITH, Circuit Judge.

       Robert Ford was charged with sexual abuse of an incapacitated person, in
violation of 18 U.S.C. §§ 2242(2), 2246(2)(A), and 1152 ("Count 1") and kidnapping,
in violation of 18 U.S.C. §§ 1201(a)(2) and 1152 ("Count 2"). A jury acquitted Ford
of sexual abuse but convicted him of kidnapping. On appeal, Ford contends that his
acquittal on the sexual abuse count requires an acquittal on the kidnapping count as
a matter of law. He argues that the district court1 erred in issuing two supplemental
jury instructions and in denying his motions for judgment of acquittal and for a new
trial. We affirm.

                                     I. Background
       On the night of June 29, 2011, Christina Weston, her cousin, Eric Sherman, her
friend, Shelly Red Earth, and her former romantic interest, Ford, consumed alcohol
and fell asleep at Weston's house. Sherman testified that the next morning he and Red
Earth heard a "muffled commotion" coming from Weston's bedroom. When Sherman
went to investigate, he encountered Ford, who had just exited Weston's bedroom and
shut the door. Ford looked upset and said, "Your cousin is having a fit, an attack. You
better go check on her." Sherman knocked on the door and went into Weston's room
where he found her traumatized. She was seated on the floor with her legs curled up,
rocking back and forth and sobbing. Sherman observed red marks on Weston's arms
that had not been there the night before. When Sherman asked Weston what
happened, Weston pointed to the door and said, "That f*****g Bob," referring to
Ford. Sherman then went to look for Ford, but he had departed. Weston was taken to
the hospital. After hospital staff physically examined Weston, she told them that she
had been barricaded in her room and sexually assaulted. Ford's DNA was present on
swabs taken from Weston at the hospital.

       A grand jury indicted Ford, charging him with sexual abuse of an incapacitated
person and kidnapping. Ford pleaded not guilty, and a jury trial was held. At the close
of the evidence, the court instructed the jury on both counts. The instructions for
Count 1 stated, in pertinent part:




      1
        The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.

                                         -2-
             For you to find Robert Ford guilty of Count 1 of the indictment,
      the prosecution must prove the following five essential elements beyond
      a reasonable doubt:

           One, that on or about June 30, 2011, Robert Ford did knowingly
      engage in or attempt to engage in a sexual act with Christina Weston;
                                        ***
             Two, that Christina Weston was incapable of appraising the nature
      of the conduct, or alternatively was physically incapable of declining
      participation in or communication unwillingness to engage in the sexual
      act;

            Three, that Robert Ford knew that Christina Weston was
      incapable of appraising the nature of the conduct, or alternatively was
      physically incapable of declining participation in or communicating
      unwillingness to engage in the sexual act;

            Four and five, that Christina Weston is an Indian; and that the
      offense took place in Indian Country, namely at Flandreau, in Indian
      Country, in the District of South Dakota.

The instructions for Count 2 stated, in pertinent part:

             For you to find Robert Ford guilty of Count 2 of the indictment,
      the prosecution must prove the following four essential elements beyond
      a reasonable doubt:

            One, Robert Ford unlawfully seized or confined Christina Weston
      without her consent;

            Two, Robert Ford held Christina Weston for the purpose of
      preventing her from reporting a sexual attack;




                                         -3-
            Three and four, that Christina Weston is an Indian; and that the
      offense took place in Indian Country, namely at Flandreau, in Indian
      Country, in the District of South Dakota.

During the course of its deliberations, the jury sent three questions to the court. The
first question was, "Do we have to prove guilty on Count 1 to find guilty on Count
2?" After entertaining arguments from counsel, the court sent the following
supplemental instruction to the jury:

             As you were instructed in Final Instruction Number Three, the
      jury needs to find that Robert Ford held Christina Weston for the
      purpose of preventing her from reporting a sexual attack. This element,
      along with all the other elements, must be proven beyond a reasonable
      doubt to find the Defendant guilty on Count Two. To find the Defendant
      guilty on Count Two, you do not need to find the Defendant guilty on
      Count One.

            This instruction should be taken together with the instructions I
      previously gave to you. The instructions must be considered as a whole.

Ford did not object to the supplemental instruction.

       Later, the court received a second question from the jury specifically
concerning the first element of Count 2. It asked, "On Count 2, can we have a further
definition of 'unlawfully seized or confined' without her consent?" After entertaining
arguments from counsel on this instruction, the court submitted the following
supplemental instruction to the jury:

             The victim's lack of consent is a fundamental element of
      kidnapping. Kidnapping implies an unlawful physical or mental restraint
      or detention for an appreciable period of time against the person's will
      and with a willful intent to confine or detain the victim.


                                         -4-
            This instruction should be taken together with the instructions I
      previously gave to you. The instructions must be considered as a whole.

Ford did not object to the second supplemental instruction. However, at that time
Ford's counsel did ask the court to consider clarifying the first supplemental
instruction. Ford's counsel argued:

      If [the jury] would acquit on Count 1 . . . factually speaking, it would be
      impossible, as a matter of law, [for Ford] to be convicted on Count 2 in
      the absence of a sexual assault. Again, like I mentioned earlier, the
      sexual assault is a condition precedent to confinement to prevent the
      reporting of a sexual assault.

Counsel for the government disagreed. The court construed Ford's counsel's argument
as an objection, ruled that it was untimely, and stated that even if it were timely, he
would have overruled it because "[t]he counts are distinct. There's nothing that
requires in a kidnapping case that there be a conviction on another matter."

      After another jury question and answer not relevant to this appeal, the jury
returned a verdict acquitting Ford of sexual abuse but convicting him on kidnapping.
Ford filed motions for judgment of acquittal and for a new trial. The district court
denied both motions. United States v. Ford, No. CR 11-40116-01-KES, 2012 WL
4443000, at *4 (D.S.D. Sept. 25, 2012) (unpublished).

                                    II. Discussion
       On appeal, Ford argues that the district court erred in issuing the supplemental
jury instructions and in denying his motions for judgment of acquittal and for a new
trial.




                                         -5-
                         A. The Supplemental Jury Instructions
       Ford argues that the district court's first supplemental instruction was plainly
erroneous because it told the jury that it was not necessary to convict Ford of sexual
abuse in order to convict him of kidnapping. He contends that the jury could not have
found the second element of the kidnapping count—that "[he] held Christina Weston
for the purpose of preventing her from reporting a sexual attack"—beyond a
reasonable doubt after acquitting him on the sexual abuse count. Ford also argues that
the district court's second supplemental instruction was plainly erroneous because it
implied that kidnapping requires only an unlawful seizure or detention.

              A party who objects to any portion of the instructions or to
              a failure to give a requested instruction must inform the
              court of the specific objection and the grounds for the
              objection before the jury retires to deliberate. An
              opportunity must be given to object out of the jury's
              hearing and, on request, out of the jury's presence. Failure
              to object in accordance with this rule precludes appellate
              review, except as permitted under Rule 52(b).

Fed. R. Crim. P. 30(d). "A plain error that affects substantial rights may be considered
even though it was not brought to the court's attention." Fed. R. Crim. P. 52(b). "Plain
error review requires [the defendant] to show (1) an error, (2) that was 'plain,' (3)
'affects substantial rights,' and (4) 'the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.'" United States v. Rush-Richardson, 574
F.3d 906, 910 (8th Cir. 2009) (quoting United States v. Olano, 507 U.S. 725, 735–36
(1993)).

       The district court did not plainly err in issuing the first supplemental jury
instruction. The jury could have validly concluded that Ford was guilty of kidnapping
despite concluding that he was not guilty of sexual abuse. To convict Ford on the



                                            -6-
sexual abuse count, the jury had to find all five elements of the offense beyond a
reasonable doubt. Excluding the fourth and fifth elements, which concern jurisdiction,
the jury might have reasonably doubted any or all of the remaining contested
elements. These elements required proof that (1) "Ford . . . knowingly engage[d] in
or attempt[ed] to engage in a sexual act with . . . Weston;" (2) either "Weston was
incapable of appraising the nature of the conduct, or alternatively [that she] was
physically incapable of declining participation in or communicating unwillingness to
engage in the sexual act;" and (3) either "Ford knew that . . . Weston was incapable
of appraising the nature of the conduct, or alternatively [that he knew that she] was
physically incapable of declining participation in or communicating unwillingness to
engage in the sexual act." See 18 U.S.C. § 2242(2). A jury finding of reasonable
doubt on any one of those three elements would require acquittal. Thus, it is entirely
possible that the jury found beyond a reasonable doubt that "Ford . . . knowingly
engage[d] in or attempt[ed] to engage in a sexual act with . . . Weston," but it still
acquitted him on the sexual abuse count because it reasonably doubted whether
Weston was incapacitated in some way or whether Ford knew that Weston was
incapacitated.

       Even if we assume that the jury reasonably doubted that "Ford . . . knowingly
engage[d] in or attempt[ed] to engage in a sexual act with . . . Weston," that
reasonable doubt does not foreclose a finding that he kidnapped Weston. First, the
kidnapping count does not include as an element that "Ford . . . knowingly engage[d]
in or attempt[ed] to engage in a sexual act with . . . Weston." To be sure, the
kidnapping count, as charged, does include as an element that "Ford held . . . Weston
for the purpose of preventing her from reporting a sexual attack." See 18 U.S.C.
§ 1201(a)(2) (requiring a kidnapping to be "for ransom or reward or otherwise"). But
the presence of reasonable doubt on the former does not require reasonable doubt on
the latter. Specifically, a reasonable jury could have doubted that the government
proved that a sexual attack occurred, but nonetheless found beyond a reasonable
doubt that Ford believed that Weston intended to report that one had occurred, and

                                         -7-
that he held her to prevent her from doing so. Second, even if the jury's findings were
logically inconsistent, "[c]onsistency in the verdict is not necessary. Each count in an
indictment is regarded as if it was a separate indictment." United States v. Powell, 469
U.S. 57, 62 (1984) (quotations and citations omitted). In Powell, the Supreme Court

       note[d] that a criminal defendant already is afforded protection against
       jury irrationality or error by the independent review of the sufficiency
       of the evidence undertaken by the trial and appellate courts. . . . The
       Government must convince the jury with its proof, and must also satisfy
       the courts that given this proof the jury could rationally have reached a
       verdict of guilty beyond a reasonable doubt. We do not believe that
       further safeguards against jury irrationality are necessary.

Id. at 67.2

       Ford argues that the second supplemental instruction was erroneous because
it implied that kidnapping requires only an unlawful seizure or detention. He argues
that this instruction failed to instruct the jury that finding that he had "the purpose of
preventing [Weston] from reporting a sexual assault" was just as important as finding
that he "unlawfully seized or confined" her. The first paragraph of the court's second
supplemental instruction states, "The victim's lack of consent is a fundamental
element of kidnapping. Kidnapping implies an unlawful physical or mental restraint
or detention for an appreciable period of time against the person's will and with a
willful intent to confine or detain the victim." This supplemental instruction
adequately elaborated the "unlawfully seized or confined" element. See 18 U.S.C.
§ 1201(a). The instruction remained correct despite not restating all of the elements
of the kidnapping count. Furthermore, the court was careful to include a second
paragraph, stating, "This instruction should be taken together with the instructions I
previously gave to you. The instructions must be considered as a whole." The original


       2
           See infra Part II.B. for a review of Ford's sufficiency challenge.

                                             -8-
instructions for the kidnapping count state, "For you to find Robert Ford guilty of
Count 2 of the indictment, the prosecution must prove the following four essential
elements beyond a reasonable doubt . . . ." (Emphasis added). "[J]uries are presumed
to be able to follow and understand the court's instructions." Katzenmeier v.
Blackpowder Prods., Inc., 628 F.3d 948, 952 (8th Cir. 2010) (citing United States v.
Sandstrom, 594 F.3d 634, 645 (8th Cir. 2010)). Any erroneous inference from the
supplemental instruction's explanation of the "unlawfully seized or confined"
element, or its use of the word "fundamental" to describe that element, was addressed
by the court's admonitions to the jury that it must read the instructions as a whole and
find every essential element beyond a reasonable doubt.

       Consequently, we hold that the district court's supplemental instructions were
not erroneous, much less plainly so.

                        B. Motion for Judgment of Acquittal
       Ford argues that the district court erred in denying his post-verdict motion for
judgment of acquittal on the kidnapping count. Ford contends that his acquittal on the
sexual abuse count shows that insufficient evidence existed to convict him on the
kidnapping count as well. Ford argues that the government failed to prove that he
held Weston for the purpose of obtaining some benefit to himself and, specifically,
that the government presented no evidence that he attempted to prevent Weston from
reporting a sexual attack.

      A post-verdict motion for judgment of acquittal puts in issue the
      sufficiency of the evidence to sustain the verdict. It is in this respect
      precisely like an appeal from a judgment of conviction on the ground
      that the evidence was not sufficient to sustain the verdict on which the
      judgment was entered.

United States v. Lincoln, 630 F.2d 1313, 1316 (8th Cir. 1980).


                                          -9-
      We review the denial of a motion for judgment of acquittal de novo.
      [United States v.] Hively, 437 F.3d [752,] 760 [(8th Cir. 2006)]. When
      a motion for judgment of acquittal is based on evidentiary insufficiency,
      we "view[ ] the evidence in the light most favorable to the verdict" and
      "must uphold the verdict if the evidence so viewed is such that there is
      an interpretation of the evidence that would allow a reasonable-minded
      jury to find the defendants guilty beyond a reasonable doubt." United
      States v. Vig, 167 F.3d 443, 447 (8th Cir. 1999).

United States v. Lewis, 557 F.3d 601, 612 (8th Cir. 2009) (fourth alteration in
original).

        The federal kidnapping statute imposes criminal liability upon "[w]hoever
unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and
holds for ransom or reward or otherwise any person." 18 U.S.C. § 1201(a). Of
particular relevance in the present case is the "or otherwise" element. Id. "We have
noted that the 'or otherwise' requirement has been broadly interpreted and have held
that it is met if the person kidnapped was taken for some reason that the defendant
considered of sufficient benefit to him, or for '"some purpose of his own."'" United
States v. Bordeaux, 84 F.3d 1544, 1548 (8th Cir. 1996) (quoting United States v.
Eagle Thunder, 893 F.2d 950, 953 (8th Cir. 1990) (quoting United States v. Melton,
883 F.2d 336, 338 (5th Cir. 1989))).

      Here, the district court stated:

             Ford argues that the jury could not have reasonably concluded
      that he held the victim for the purpose of preventing her from reporting
      a sexual attack because the jury found Ford not guilty of the charged
      sexual assault. Put differently, Ford contends that the victim could not
      have intended to report a sexual attack because according to the jury
      verdict, no sexual attack took place. Ford's reasoning is flawed because
      he implicitly argues that in order for one to report an alleged crime
      against a defendant, or at least to have the intent to do so, the defendant

                                         -10-
      must be guilty of the alleged crime. Ford cites no case law to support his
      position[,] and the court finds that his position is not true either logically
      or practically. An individual can report what he or she perceives to be
      a crime even if no actual crime took place. To conclude otherwise would
      undermine the role of criminal investigations and the judicial process as
      a whole. Hence, the court finds that Ford's argument that a not guilty
      verdict for the sexual assault charge precludes a guilty verdict for the
      kidnapping charge lacks merit.

             Ford also argues that the evidence presented at trial was
      insufficient to prove beyond a reasonable doubt that he had the
      necessary intent to commit a kidnapping, namely that he held the victim
      for the purpose of preventing her from reporting a sexual attack. Here,
      after hearing all the evidence, the jury reasonably concluded that the
      victim intended to report a sexual attack at the time [that] Ford held her.
      Indeed, the victim reported the sexual attack once she had the
      opportunity. She immediately told a witness about the events that took
      place while defendant and the victim were in the victim's bedroom, the
      place where the alleged confinement took place. The victim then went
      to the Flandreau hospital that same day to have a rape kit administered,
      and she also reported the incident to the Flandreau police and made a
      statement to the FBI. The fact that defendant was later acquitted of the
      sexual assault crime does not negate the fact that the victim intended to
      report the attack at the time she was confined.

Ford, 2012 WL 4443000, at *2 (footnote omitted). As Ford argues, much of the
district court's analysis deals with Weston's intent to report a sexual attack, as
opposed to evidence proving that Ford had the purpose of preventing Weston from
reporting a sexual attack. But, in the present case, Weston's intent to report a sexual
attack is quite relevant to establishing Ford's subjective purpose to prevent her from
reporting a sexual attack. Weston testified that Ford sexually assaulted her, barricaded
the door when she tried to leave the room, and prevented her from having access to
her cell phone. Weston reported that Ford had sexually assaulted her as soon as she



                                          -11-
had the opportunity to do so. Furthermore, Weston's allegation was corroborated by
the testimony of Sherman and Red Earth, photographs, and DNA evidence.

      In Bordeaux, four men left an all-night drinking party sometime after 6:30 a.m.
84 F.3d at 1546. As they were driving, they observed an injured man, Williams,
walking down the road. Id. The men stopped and offered Williams a ride to his
mother's house. Id. However, the driver took the car to a different location, where the
occupants exited the car and battered Williams. Id. The men then placed Williams
back into the car and drove him to another location where they continued the physical
assault. Id. Two of the four men were convicted of kidnapping, in violation of
§ 1201(a)(2). Id. On appeal, the defendants challenged the sufficiency of the
evidence, arguing that "the government did not prove that Williams was held for
'ransom or reward or otherwise,' as required by 18 U.S.C. § 1201(a)." Id. at 1548. We
found that

      [i]t was reasonable for the jury to infer that the purpose of the
      kidnapping was to assault Williams and that he was put back in the car
      to enable the defendants to continue the assault at a more isolated
      location and thus prevent detection. Both reasons constitute a sufficient
      benefit to the defendants.

Id. Similar to Bordeaux, here "[i]t was reasonable for the jury to infer that" Ford's
purpose in kidnapping Weston was to prevent Weston from reporting a sexual attack.
See id. That "reason[] constitute[d] a sufficient benefit to [Ford]" under § 1201(a). See
id.

       Ford again asserts that the verdicts on the sexual abuse and kidnapping counts
are inconsistent.

      Even if we characterize the verdicts as inconsistent, "[w]e have
      previously held, when considering what are characterized as inconsistent

                                          -12-
      verdicts, that we only ask whether the government presented sufficient
      evidence to support the conviction. We are reluctant to delve into the
      minds of the jurors to determine the reasons for apparently inconsistent
      verdicts." United States v. Opare–Addo, 486 F.3d 414, 416 (8th Cir.
      2007) (internal citation omitted).

United States v. Ironi, 525 F.3d 683, 689 (8th Cir. 2008). Viewing the evidence in the
light most favorable to the guilty verdict, there was sufficient evidence to find Ford
guilty of kidnapping. See Lewis, 557 F.3d at 612. Consequently, we hold that the
district court did not err in denying Ford's motion for judgment of acquittal.

                             C. Motion for a New Trial
      Ford argues that the district court erred in denying his motion for a new trial.
He contends that Weston's testimony and the testimony of a hospital worker about
Weston's injuries establish only that he involuntarily detained Weston. Additionally,
Ford reasserts his argument that his acquittal on the sexual abuse charge requires an
acquittal on the kidnapping charge.

      "The decision to grant or deny a motion for a new trial based upon the
      weight of the evidence is within the sound discretion of the trial court,"
      [and] "[u]nless the district court ultimately determines that a miscarriage
      of justice will occur, the jury's verdict must be allowed to stand." United
      States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002).

United States v. Mayer, 674 F.3d 942, 944–45 (8th Cir. 2012) (second alteration in
original).

      "[A]n abuse of discretion occurs when a relevant factor that should have
      been given significant weight is not considered, when an irrelevant or
      improper factor is considered and given significant weight, or when all
      proper and no improper factors are considered, but the court in weighing
      the factors commits a clear error of judgment." United States v. McNeil,


                                         -13-
      90 F.3d 298, 300 (8th Cir.), cert. denied, 519 U.S. 1034, 117 S. Ct. 596,
      136 L. Ed. 2d 524 (1996) (internal citations omitted); accord, Kern v.
      TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984).

United States v. Butler, 296 F.3d 721, 723 (8th Cir. 2002) (alteration in original).
Here, the district court found:

             Ford's argument in support of granting a new trial rests almost
      entirely on the issue of credibility. Ford argues that the victim's
      testimony is incredible and that the testimony of the two corroborating
      witnesses is also incredible.
                                        ***
            Ford does not argue persuasively that the victim's testimony
      regarding the kidnapping is incredible.

Ford, 2012 WL 4443000, at *3.

       On appeal, Ford argues that the court improperly considered evidence
pertaining to Weston's state of mind as proof that he held her for the purpose of
preventing her from reporting a sexual attack. He contends that Weston's testimony
"showed her subjective belief that [he] prevented her from leaving the bedroom or
using her phone," and not that he had the subjective purpose of preventing her from
reporting a sexual attack. (Emphasis added). But Weston's testimony was relevant and
highly probative of Ford's mental state. The district court therefore properly
considered Weston's testimony as probative of Ford's motive. Likewise, the court
properly considered the testimony of those witnesses who corroborated Weston's
testimony.

      Addressing Ford's argument that acquittal on the sexual abuse charge requires
acquittal on the kidnapping charge, the district court determined that "the kidnapping
conviction can stand on its own, and, thus, Ford's argument lacks merit." Id. at *4.

                                        -14-
Indeed, the jury could have reasonably believed that Weston wanted to report a sexual
attack—and that Ford acted with the purpose to prevent her from doing so—even if
the jury was not convinced that the government had proven all of the elements of the
sexual abuse count beyond a reasonable doubt. Furthermore, Ford's acquittal on the
sexual abuse count imposed no obligation on the court to ignore the testimony, DNA
evidence, and photographs that indicated that Ford held Weston for the purpose of
preventing her from reporting a sexual attack.

       Ford does not convince us that affirming the district court's judgment will
result in "'a miscarriage of justice . . . [,] [so] the jury's verdict must be allowed to
stand.'" See Mayer, 674 F.3d at 945 (quoting Campos, 306 F.3d at 579).
Consequently, we hold that the district court did not abuse its discretion in denying
Ford's motion for a new trial.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                          -15-
