     Case: 14-50522      Document: 00512952169         Page: 1    Date Filed: 02/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50522                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                February 27, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

RUEL HAWKINS,

              Defendant - Appellant




                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CR-178


Before STEWART, Chief Judge, and SOUTHWICK and COSTA, Circuit
Judges.

PER CURIAM:*
       Ruel Hawkins performed oral sex on his 18-year old niece. Because this
act took place at a park within the jurisdiction of Fort Hood, he was charged
with the federal crime of abusive sexual contact. See 18 U.S.C. § 2244(b).
Appealing his conviction after a bench trial, Hawkins contends that offense




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 14-50522
requires proof that he believed the sexual contact occurred without the victim’s
permission, proof which he believes is absent in his case.
      The testimony at trial, viewed in the light most favorable to the guilty
verdict, included the following: On August 5, 2013, at around 4:00 a.m., 54-
year old Hawkins sent a text message to his niece asking if she wanted to
exercise that morning. Although the two had worked out at the Fort Hood gym
just days earlier, Hawkins falsely informed his niece that the gym had not
opened.       Instead, Hawkins proposed the more isolated Belton Lake
Recreational Area. She agreed to go with him, and Hawkins picked her up
about an hour later.
      It was still dark when they arrived. Hawkins suggested they start with
abdominal exercises. He told his niece to lay on her back and move her legs up
and down “like scissors.” When she became sore, she allowed Hawkins to
massage her stomach. He then moved his hand into her pants. She said,
“Uncle Ruel, I don’t think you should be doing that.” Hawkins then pulled her
underwear back and performed oral sex on her for about five seconds.
      His niece jumped up, grabbed her phone, and quickly walked away. She
felt scared and began crying. Hawkins ran after her, apologizing and asking
her to come back. Fearful, she started running. She flagged down a passing
truck and told the driver, “my uncle just molested me.” 1
      The driver called police, who arrested Hawkins.                    Later that day,
Hawkins met with Agent Daniel Chadwick and gave a statement after waiving
his Miranda rights. In that statement, Hawkins denied touching his niece in
any sexual manner.
      The government charged Hawkins with violating 18 U.S.C. § 2244(b),
which makes it illegal in the territorial jurisdiction of the United States to


      1   Hawkins is related to his niece by marriage (her aunt’s husband).
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                                   No. 14-50522
“knowingly engage[] in sexual contact with another person without that
person’s permission.” Hawkins elected to have a bench trial and chose to
testify. On the stand, Hawkins admitted that he lied to Agent Chadwick and
recounted a very different story than the one he told the day of the incident.
In this version, Hawkins admitted that he touched his niece’s vagina and
performed oral sex on her but only because she asked him to do so. The district
court returned a guilty verdict.
        At trial, Hawkins never argued that the government was required to
prove that he knew he lacked permission to engage in the sexual contact..
However, in a post-trial motion for bond pending appeal, Hawkins claimed that
the statute does require this knowledge and the government failed to prove it.
The district court denied his motion, assuming without deciding that Hawkins
was correct about the statute but holding that the evidence established
satisfied any such mens rea requirement.
        Hawkins’s appeal thus raises two questions: Does a conviction under
Section 2244(b) require proof that the defendant knew the sexual contact took
place without the victim’s permission? If so, did that proof exist in Hawkins’s
case?
        No court of appeals has addressed whether the knowledge element of
Section 2244(b) applies to the victim’s lack of permission. As a grammatical
matter, Hawkins concedes that “knowingly” modifies “engages in sexual
contact” rather than the phrase “without that person’s permission.”            But
Hawkins asks us to follow the approach of United States v. X-Citement Video,
Inc., 513 U.S. 64 (1994). In that case, the Supreme Court found a mens rea
requirement that lacked grammatical support in a child pornography statute
because of the presumption that “a scienter requirement . . . appl[ies] to each
of the statutory elements that criminalize otherwise innocent conduct.” Id. at
71–72. The government responds that legislative history supports the plain
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                                No. 14-50522
language of Section 2244(b), see United States v. Chatman, 2008 WL 2127947,
at *2 (D. Or. May 20, 2008), as do comparable state sexual assault statutes
that do not require knowledge as to consent in similar circumstances.
      The Second Circuit faced similar arguments in a Section 2244(b) case,
but found it unnecessary to resolve the statutory question because sufficient
evidence supported the conviction even assuming a mens rea requirement
applied to the “without that person’s permission” element. See United States
v. Cohen, 2008 WL 5120669, at *2 (2d Cir. Dec. 8, 2008). The same is true in
Hawkins’s case.
      Substantial evidence exists from which the trier of fact could have found
beyond a reasonable doubt that Hawkins knew he did not have his niece’s
permission to engage in sexual contact. And contrary to Hawkins’s argument
that any such holding is speculative because a finding on this issue was not
made below, the district court reached this exact conclusion when it denied the
motion for bond pending appeal, stating that “the trial record clearly
established that the Defendant knew that he did not have permission to engage
in sexual contact with victim.” We agree.
      For starters, his niece never gave Hawkins permission to touch her in a
sexual way, strong evidence that Hawkins knew he lacked permission to do so.
See, e.g., Cohen, 2008 WL 5120669, at *2 (finding the lack of permission
probative of the defendant’s knowledge that he lacked permission). Second,
his niece immediately said “I don’t think you should be doing that,” conveying
to Hawkins that he did not have permission to touch her sexually. Third, his
niece jumped up and ran away shocked and crying, providing evidence that she
had a nonpermissive demeanor during the encounter. Hawkins counters these
points by parsing his niece’s words and proof of her demeanor, arguing that
she equivocated by saying “should” and pointing to physical evidence that
allegedly undercuts her testimony.     But the district court did not credit
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                                  No. 14-50522
Hawkins’s interpretation of the evidence, and given that we must view all
evidence to favor the verdict, we will not either.
      In many cases, establishing any one of the aforementioned facts may be
enough to support a finding beyond a reasonable doubt that the defendant
knew the sexual contact took place without the victim’s permission, but here
there is even more. The familial relationship and vast age difference between
Hawkins and his niece cast serious doubt on his claim that he thought he had
her permission to engage in sexual contact.          See, e.g., Cohen, 2008 WL
5120669, at *2 (holding that the circumstances surrounding the defendant and
victim’s relationship were probative of knowledge). And Hawkins’s deceptive
plan—tricking his niece into going to an isolated area early in the morning by
lying about the gym being closed—indicates that he knew his behavior would
not meet with approval. That he apologized right after the incident further
establishes his guilty state of mind. So does the fact that he initially denied
any sexual contact took place, only to change his story at trial by admitting
that it did occur but he thought it was consensual. All this evidence more than
establishes Hawkins’s guilt beyond a reasonable doubt even assuming the
statute includes the mens rea requirement he advocates.
      The conviction therefore is AFFIRMED.




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