                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 11-15536                   JUNE 25, 2012
                          Non-Argument Calendar               JOHN LEY
                        ________________________               CLERK


                    D.C. Docket No. 1:10-cr-20560-JJO-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

EDGAR RANDOLPH SCOTT,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________
                               (June 25, 2012)

Before EDMONDSON, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Edgar Scott appeals his conviction under the Assimilative Crimes Act, 18
U.S.C. § 13, for attempt to commit an “unnatural and lascivious act with another

person” in violation of Fla. Stat. Ann. § 800.02. Scott argues that the evidence

was insufficient to support his conviction because his act of masturbating while

sitting beside another person does not satisfy the “with another person”

requirement of the statute.

                                          I.

      In a one-count information, the government charged Scott with “knowingly

attempt[ing] to commit an unnatural and lascivious act with another person, that is,

masturbating while attempting to touch another person . . . .” Scott pleaded not

guilty and the parties consented to a bench trial before a magistrate judge. At trial,

the government called Lauren Wyscaver as its only witness. She testified that she

was sitting in a chair in the waiting room of Miami Veterans Affairs Hospital

when Scott approached her and asked if he could sit in the chair next to her. She

agreed, and the two began talking about their respective military service, why they

were at the hospital, and the weather. There were four or five other people in the

waiting room, which had approximately 20 chairs.

      According to Wyscaver, within the first few minutes of their conversation,

Scott “tried to touch [her] ankle, but [she] pulled away.” Wyscaver became

uncomfortable and started to ignore Scott, but he continued talking to her. Scott

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told Wyscaver that he thought she was pretty and offered to pay her to give him

her phone number. Wyscaver testified that Scott then, as “nonchalantly as you can

do it,” reached down into his pants and started masturbating. “Once he did that,”

she said, “I sat up and I walked into the nurse’s triage room because I was

frightened.” Wyscaver eventually reported Scott’s conduct to a security guard.

      Based on that evidence, the magistrate judge concluded that Scott had

attempted to “masturbat[e] or fondl[e] himself with another person who is”

Wyscaver. For that reason, the magistrate judge ruled that Scott had violated the

Assimilative Crimes Act by attempting to commit an “unnatural and lascivious act

with another person” in violation of Fla. Stat. Ann. § 800.02. The magistrate

judge sentenced Scott to 68 days in prison, followed by one year of probation.

The district court affirmed his conviction and sentence, and Scott now appeals

only his conviction.

                                         II.

      We review de novo a district court’s interpretation of a statute. United

States v. Dodge, 597 F.3d 1347, 1350 (11th Cir. 2010) (en banc). We also review

de novo a challenge to the sufficiency of the evidence, and will affirm the

conviction if a reasonable factfinder could have found that the evidence


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established the defendant’s guilt beyond a reasonable doubt when viewing the

evidence in the light most favorable to the verdict. United States v. Gamory, 635

F.3d 480, 497 (11th Cir. 2011).

       The Assimilative Crimes Act provides that

       Whoever within or upon [federal property] . . . is guilty of any act or
       omission which, although not made punishable by any enactment of
       Congress, would be punishable if committed or omitted within the
       jurisdiction of the State, Territory, Possession, or District in which
       such place is situated, by the laws thereof in force at the time of such
       act or omission, shall be guilty of a like offense and subject to a like
       punishment.

18 U.S.C. § 13(a). The parties stipulated that the Miami Veterans Affairs Hospital

is federal property located within the state of Florida, so the ACA assimilates

Florida criminal law. Thus, for the purposes of this case, “[a] person who commits

any unnatural and lascivious act with another person” commits a federal crime.

Fla. Stat. Ann. § 800.02. When interpreting that statutory language, “we must

look to the Florida jurisprudence to learn what conduct is punishable under the

offense denounced by the statute.” United States v. Frazier, 444 F.2d 235, 238

(5th Cir. 1971).1



       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

                                               4
      Scott does not dispute that he committed “an unnatural and lascivious act,”

so the issue in this case is whether the evidence sufficiently shows that Scott

attempted to commit that act “with another person” within the meaning of the

statute. On that issue, we are guided by the Florida Fourth District Court of

Appeal opinion in Conforti v. State, 800 So. 2d 350 (Fla. 4th DCA 2001). There,

a defendant walked up to an undercover police officer and asked the officer what

he liked to do. Id. at 350. The officer responded “anything.” Id. The defendant

“then sat in his vehicle . . . pulled his shorts down, and began to masturbate. After

watching for about twenty-five seconds while standing beside the car, the officer

pulled out his badge and placed [the defendant] under arrest.” Id.

      The Conforti court held that the defendant had not violated section 800.02

because it “cannot be said that [the defendant’s] masturbation was committed by a

person with ‘another person.’” Id. at 351. The defendant simply “sat in his car

and performed the solitary act of masturbation while the officer stood outside and

looked on.” Id.

      Even though Scott was charged with attempting to commit an unnatural and

lascivious act and the defendant in Conforti was charged with the completed act,

the reasoning of that case applies here. Scott sat in the waiting room of the


                                          5
hospital and performed a “solitary act of masturbation” in the presence of

Wyscaver and others in the area. There is no evidence in the record indicating that

Scott ever attempted to touch Wyscaver or any other person while he was

masturbating. Indeed, when Wyscaver was asked whether Scott had attempted to

touch her while he was masturbating, she did not testify that he did:

      Q. Ms. Wyscaver, was [Scott] looking at you while he had his hand
      in his shorts?
      A. Yes.
      Q. Was he attempting to get closer to you and touch you?
      A. At that time I was trying not to look at him and I was trying to
      give the impression that I didn’t want to talk to him at all anymore. I
      don’t know if he was trying to get closer to me at the time that he was
      doing it. I don’t know.

According to Wyscaver, the only time Scott tried to touch her was “[w]ithin the

first couple of minutes” of their conversation when he reached for her ankle. Scott

made that attempt before he put his hand down his pants.

      The government argues that Scott was masturbating “with” Wyscaver

because “he was sexually attracted to her” and because he stared at her while

masturbating. But the “with another person” element of section 800.02 is not

satisfied simply because a defendant is sexually aroused or erotically inspired by

another person. If mere arousal or inspiration were enough, Conforti would have

come out the other way. Nor does the fact that a defendant stares at another

                                         6
person while committing an act mean that the defendant committed that act with

another person.

      Even viewing the evidence in the light most favorable to the verdict, there is

insufficient evidence to support the conclusion that Scott “knowingly attempt[ed]

to commit an unnatural and lascivious act with another person, that is,

masturbating while attempting to touch another person,” which is what the

information alleged. A reasonable factfinder could not have found that Scott was

masturbating “with another person” within the meaning of section 800.02.

      The judgement of the district court is REVERSED, the conviction is

VACATED, and the case is REMANDED for entry of a judgment of acquittal.




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