                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 11 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30095

              Plaintiff - Appellee,              D.C. No. 4:11-cr-00079-SEH-1

  v.
                                                 MEMORANDUM*
EDWARD RONALD STAMPER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                           Submitted February 6, 2013**
                               Seattle, Washington

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

       Defendant-Appellant Edward Stamper appeals his jury conviction for sexual

abuse in violation of 18 U.S.C. § 2242(2)(B) and 18 U.S.C. § 1153(a) (offense

committed within Indian country). On appeal, Stamper contends that the district


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court erroneously denied his motions for a judgment of acquittal because there was

insufficient evidence to support a finding that the victim was “physically incapable

of declining participation in, or communicating unwillingness to engage in, that

sexual act” as required by statute. See 18 U.S.C. § 2242(2)(B).

      We review de novo a district court’s denial of a motion for judgment of

acquittal, asking whether, in the light most favorable to the prosecution, the

evidence presented at trial was adequate to allow any rational trier of fact to find a

defendant guilty of the appealed element of the crime beyond a reasonable doubt.

United States v. Sutcliffe, 505 F.3d 944, 959 (9th Cir. 2007); see also United States

v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

      Here, the government presented sufficient evidence to allow a rational jury

to find that the victim was “physically incapable of declining participation in, or

communicating unwillingness to engage in” the sexual act in question. See 18

U.S.C. § 2242(2)(B). In sexual assault cases, “a reasonable jury may conclude that

a person who is asleep when a sexual act begins is physically unable to decline

participation in that act.” United States v. Fasthorse, 639 F.3d 1182, 1184 (9th

Cir. 2011) (alteration omitted) (quoting United States v. Wilcox, 487 F.3d 1163,

1169 (8th Cir. 2007)). A victim’s testimony that she woke up while the sexual act


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was ongoing provides sufficient evidence of her lack of capacity even when she

had been consuming drugs or alcohol. Id. at 1184–85 (finding sufficient evidence

to uphold a conviction under 18 U.S.C. § 2242(2)(B) where a woman who had

been drinking alcohol and smoking marijuana testified that she awoke while a

defendant was having sex with her).

      The victim testified that she “blacked out” in a downstairs living room at

around 4 p.m. after drinking a shot of vodka. She awoke to find Stamper “on top

of [her]” and his penis “inside of [her].” Three others present at the party where

the victim was assaulted corroborated that the victim passed out from substantial

consumption of alcohol and was not responsive. A forensic expert from the FBI

testified at trial that the victim had an estimated blood alcohol level of between

0.18 to 0.25 gram percent at 10 p.m. on the night of the assault.

      Stamper, however, relies on inconsistencies between the testimonies of

various witnesses and evidence suggesting that the victim did not appear drunk

several hours after the assault. But none of this evidence directly contradicts the

victim’s version of events, and it was within the jury’s power to weigh

inconsistencies in making credibility determinations. See United States v. Kerr,

981 F.2d 1050, 1053 (9th Cir. 1992) (noting that a jury makes credibility

determinations); see also United States v. H.B., 695 F.3d 931, 934, 937 (9th Cir.


                                          3
2012) (affirming an adjudication as a juvenile delinquent, despite differing

accounts of events, where the trial court’s decision was supported by its credibility

assessments). The jury chose to credit the victim’s story rather than Stamper’s.

      Stamper further challenges the sufficiency of the evidence by contending

that the victim made no “proactive” attempt to “notify[] police of a sexual assault.”

But we have noted that “[a] victim of sexual assault does not irredeemably

compromise his or her credibility by failing to report [an] assault at the first

opportunity.” Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir. 2004) (in the

immigration context). A rational jury could have concluded that the victim did not

initiate contact with the police about the assault because Stamper had already

informed the victim’s cousins that Stamper would be calling the police and, by the

time the victim arrived at her relative’s house following the assault, police officers

had arrived there in response to Stamper’s call. Sufficient evidence exists to

uphold Stamper’s conviction and the district court did not err in denying Stamper’s

motions for a judgment of acquittal.

      AFFIRMED.




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