                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3869
                                    ___________

United States of America,                *
                                         *
                  Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Benjamin Godfrey Chipps, Jr.,            *
                                         *
                  Appellant.             *
                                    ___________

                               Submitted: June 12, 2002

                                   Filed: August 15, 2002
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY and MURPHY, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.

       A jury convicted Benjamin Godfrey L. Chipps, Jr. of aggravated sexual abuse
by force in Indian country in violation of 18 U.S.C. §§ 2241(a) and 1153. The district
court1 denied Chipp’s motion for judgment of acquittal or for a new trial, and
sentenced him to 120 months in prison. On appeal, Chipps asks this court to consider
whether the district court abused its discretion in: (1) finding that the evidence was


      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
sufficient to support the verdict, and (2) precluding cross-examination of the victim
regarding the scars on her wrists from a prior incident. We affirm.

I.    Background

       We present the facts in the light most favorable to the jury’s verdict. At the
time of the offense, the victim, “DTF,” was sixteen years old and Chipps was twenty-
one years old. They are distant cousins and knew each other prior to the assault. In
the late evening on April 14, 2001, DTF and a friend went to Chipps’s home, where
up to fifteen people were living at the time. Conrad Doyle, one of the adult residents
of the house, walked out of the house, and DTF asked him to ask Chipps to come
outside. Chipps did so, and DTF’s friend left shortly thereafter. It was cold outside,
so Chipps suggested that he and DTF go inside the house. They proceeded into a
bedroom and either sat or reclined on the bed. Chipps and DTF talked for awhile.
Chipps indicated he wanted to engage in sexual relations with DTF. Chipps pulled
DTF toward him, pinned her arms above her head with one hand, and removed her
clothing and his own clothing with his other hand. DTF told him to quit, to stop, and
said “no.” She may or may not have told him she did not want to get pregnant. DTF
tried to use her legs to force Chipps off of her body, but could not do so until after
forced penetration. DTF picked up her clothing and left the house. She went to
Doreen Milk’s home, told Doreen what had happened, and together they went to the
police station to report the assault, approximately fifteen minutes after the incident.
DTF was transported to the Indian Health Services Hospital in Pine Ridge, and later
to the Rapid City Regional Hospital in South Dakota, where a physical exam was
conducted. The examination revealed that DTF had had sexual intercourse.

       Chipps was arrested shortly after the victim reported the assault. He was
charged with the commission of aggravated sexual abuse by force in Indian country
in violation of 18 U.S.C. §§ 2241(a) and 1153. The issue at trial was whether he



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committed aggravated sexual abuse or whether Chipps and the victim engaged in
consensual sex. Chipps appeals his conviction.

II.   Discussion

A.    Denial of Motion for Judgment of Acquittal

       In reviewing the district court’s denial of a motion for judgment of acquittal,
“we must view the evidence and all reasonable inferences therefrom in the light most
favorable to the verdict[].” Ortega v. United States, 270 F.3d 540, 544 (8th Cir. 2001)
(citation omitted). “‘If the evidence rationally supports two conflicting hypotheses,
the reviewing court will not disturb the conviction.’” Id.; United States v. Baker, 98
F.3d 330, 338 (8th Cir. 1996).

       Chipps presented the following evidence to support his contention that the
overwhelming weight of the evidence indicates there was no sexual assault: DTF
went to Chipps’s home and into his bedroom; she voluntarily lay down beside him
and kissed him; she did not cry out or try to “gain anyone’s attention” during the
alleged rape; DTF’s friend testified that DTF had been drinking when she went to
Chipps’s house, and that DTF and Chipps hugged and kissed before going into the
house; Chipps’s mother testified that she had been at home watching t.v. at the time
of the alleged rape, and “was aware of nothing happening;” John Waters, in the house
at the time of the alleged rape, heard what he thought was consensual love-making;
and there was no physical evidence of force.

       Chipps argues that while there is some evidence to support DTF’s claim, it is
insufficient to prove his guilt beyond a reasonable doubt. He cites United States v.
Davis, 103 F.3d 660, 667 (8th Cir. 1996), for the proposition that this court should
uphold a conviction against a challenge to the sufficiency of the evidence unless “a
reasonable factfinder must have entertained a reasonable doubt about the

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government’s proof of one of the offense’s essential elements.” Defendant argues
that because there was a dispute as to whether DTF gave her consent, the Davis rule
would dictate reasonable doubt as a matter of law.

       DTF testified that she voluntarily joined Chipps in the bedroom, but when he
suggested they have sexual relations she did not think he was serious. When he
pinned her arms above her head she told him to “quit fucking around,” to which he
replied that “this is for real.” She repeatedly told Chipps to stop, and that he was
hurting her. Because he is nearly twice her size, she could not physically defend
herself. DTF finally was able to flee the house partially undressed, and within fifteen
minutes she was at the police station to report the assault. Viewing the evidence in
the light most favorable to the verdict, the jury reasonably could have inferred that
DTF did not give her consent and was sexually assaulted. We will not disturb the
conviction. We therefore affirm the district court’s denial of Chipps’s motion for
judgment of acquittal.

B.    Denial of Motion for New Trial

       A district court should grant a new trial only if the evidence weighs heavily
enough against the verdict that a miscarriage of justice may have occurred. United
States v. Gabe, 237 F.3d 954, 960 (8th Cir. 2001). This court affirms the denial of a
motion for a new trial unless it was a clear and manifest abuse of discretion. Id. As
we explained above, the evidence before the jury supported its conclusion that Chipps
had committed sexual assault, and the evidence did not weigh heavily against the
verdict. As for appellant’s contention that it was a miscarriage of justice for the court
to have instructed the jury that Chipps’s cocaine possession was a misdemeanor, we
find that argument to be without merit.2


      2
       Chipps smoked four marijuana cigarettes laced with cocaine on the day of the
assault. He did not tell law enforcement agents about his possession of cocaine on

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       At trial, defense counsel repeatedly asked a rebuttal witness, FBI Special Agent
Michael McRoden, about the federal penalty for possession of cocaine, with the
alleged intent of showing that Chipps was frightened when he was interviewed rather
than deceptive. While testifying, the agent was uncertain as to whether Chipps’s
possession of the drug was a felony or misdemeanor. The government requested a
curative instruction to explain that Chipps would have faced a misdemeanor charge
for the amount of cocaine he possessed, not a felony charge, to show that Chipps’s
fear of a substantial federal sentence was unwarranted. Chipps argues that the
government’s intent was to show that Chipps was untruthful and that his testimony
about the assault was untrustworthy. We disagree. The instruction did not prevent
Chipps from testifying about his mental state when he spoke to the FBI Agents; it
clarified the law. The district court did not err in the giving the jury the curative
instruction, and did not abuse its discretion in denying the new trial motion.

C.    Evidence Regarding DTF’s Propensity for Bruising or Scarring

       The court reviews the district court’s decision to admit or refuse evidence for
abuse of discretion. United States v. O’Dell, 204 F.3d 829, 833 (8th Cir. 2000)
(citation omitted). DTF testified that she had scars on her wrists from an unrelated
incident. To show lack of force during the alleged assault, defense counsel asked
DTF how she had obtained the scars. Defense counsel hoped to show her propensity
to injury by eliciting that she had sustained scars from having worn handcuffs, and
that there were no physical signs of trauma resulting from her having been grabbed
at the wrists during the sexual assault. The government objected under Federal Rule
of Evidence 403, arguing that the probative value of DTF’s response would have been
outweighed by the danger of unfair prejudice. The court determined that the cause
of the scars was irrelevant. The jury was already aware through witness testimony


the day of the assault because he feared a substantial federal punishment for cocaine
possession.

                                         -5-
that DTF had scars on her wrists, and that there were no bruises or signs of injury on
her wrists resulting from the assault. We agree that the evidence was not relevant,
and that Chipps was not unfairly prejudiced by the court’s ruling.

      For the reasons cited above, we affirm.

      A true copy.

             Attest:

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




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