                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 15 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30273

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00066-TFH-1

  v.
                                                 MEMORANDUM*
DALE ANDREW ROUNDSTONE,

              Defendant - Appellant.


                  Appeal from the United States District Court
                          for the District of Montana
                Thomas F. Hogan, Senior District Judge, Presiding

                     Argued and Submitted February 8, 2012
                              Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

       Dale Roundstone appeals from his conviction of kidnaping in violation of 18

U.S.C. § 1201(a)(2). He contends that the prosecution failed to present sufficient

evidence upon which a jury could find beyond a reasonable doubt that his alleged



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
victim was held against her will.1 We have jurisdiction under 28 U.S.C. § 1291.

We affirm.

      An appellate court “review[s] de novo the denial of [a] Rule 29 motion for

acquittal, but the test to be applied is the same as for a challenge to the sufficiency

of the evidence.” United States v. Tisor, 96 F.3d 370, 379 (9th Cir. 1996) (second

alteration in original) (emphasis added) (quotation marks and citation omitted).

“Sufficiency of evidence is satisfied if ‘after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Id. (emphasis in

original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When a

reviewing court cannot conclude that a witness’ testimony was “physically

impossible and simply could not have occurred as described,” the reviewing court

must “conclude that a rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Bruce v. Terhune, 376 F.3d 950, 958

(9th Cir. 2004) (citing Jackson, 443 U.S. at 319).

      Roundstone contends that his conviction for kidnaping should be reversed

because the evidence was insufficient to demonstrate that he unlawfully seized the

      1
        Roundstone was also convicted of assault resulting in serious bodily injury,
but has not appealed from that conviction. He was acquitted of aggravated sexual
abuse.

                                           2
alleged victim and held her against her will. We disagree.

      The alleged victim testified that Roundstone pulled her into his truck by her

hair and that she was unable to get away from him or get help from anyone all

afternoon because “he was with [her] the whole time and made sure [she] wouldn’t

leave.” Another witness for the prosecution testified that she saw Roundstone pull

the alleged victim into his vehicle and heard her scream. The alleged victim

further testified that Roundstone beat her for over two hours, denied her repeated

requests to let her return to her sister’s home, and kept his eye on her when they

were in public together. She did not feel safe attempting to escape until she was

able to pull the vehicle she was driving into a casino parking lot and run inside,

screaming for help. Several other prosecution witnesses testified that they saw the

alleged victim run into the casino that afternoon, screaming that Roundstone was

trying to kill her. She was pursued by Roundstone, who “was yelling at her,

and . . . was in a rage.” This evidence was sufficient to demonstrate that

Roundstone unlawfully seized and held the alleged victim against her will.

      Roundstone has failed to demonstrate that the testimony relied upon by the

jury was “physically impossible and simply could not have occurred as described.”

Bruce, 376 F.3d at 958. Accordingly, we conclude that the district court did not err

in determining that there was sufficient evidence for a “rational trier of fact [to]


                                           3
have found the essential elements of the crime [of kidnaping] beyond a reasonable

doubt.” Jackson, 443 U.S. at 319.

      AFFIRMED.




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