                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        AUG 18 2003
                      UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 03-2048
 v.
                                                (D.C. No. CR-01-1263-BB)
                                                    (D. New Mexico)
 LYDELL PHILLIP,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.




      Following a jury trial, Lydell Phillip was convicted of one count of

aggravated sexual abuse in Indian Country, in violation of 18 U.S.C. §§ 2241 and




      *
         At the parties’ request, the case is unanimously ordered submitted
without oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1153. 1 On direct appeal, Phillip challenges the sufficiency of the evidence to

support his conviction. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.

      In evaluating sufficiency-of-the-evidence claims, “[w]e must determine

whether viewing the evidence in the light most favorable to the government, any

rational trier of fact could have found the defendant guilty of the crime beyond a

reasonable doubt.” United States v. Vallo, 238 F.3d 1242, 1247 (10th Cir. 2001)

(quotation omitted). In our review, we “must not weigh conflicting evidence or

consider the credibility of the witnesses, but simply determine whether the

evidence, if believed, would establish each element of the crime.” Id. (quotation

omitted). In order to prove a violation of 18 U.S.C. § 2241(a), the government

must establish that (1) the defendant knowingly caused the victim to engage in a

sexual act (2) by using force or by threatening or placing the victim in fear of

death or serious bodily injury or kidnapping.

      Testimony at trial showed that the following events leading up to Phillip’s

conviction took place. In the early morning hours of August 21, 2001, Lena

Willie was awakened to find Phillip, the father of her grandchild, standing over

her bed. Phillip pulled a knife out of his pocket and pressed it against Willie’s



      1
        The parties stipulated that the defendant is an Indian and that the incident
took place in Indian Country, jurisdictional requirements of 18 U.S.C. § 1153.

                                        -2-
cheek. Phillip then began to touch Willie and placed the knife to her throat.

When Willie was not receptive to Phillip’s sexual advance, Phillip slapped her

across her face. Phillip then ripped off Willie’s nightgown and engaged in forced

intercourse with her. After Phillip left, Willie went next door to her daughter’s

home and told her what had just occurred. Willie’s daughter immediately

reported the incident to the police and took Willie to the hospital. At the hospital,

Dr. Bond examined Willie, noticing redness in her cheeks and recent scratches on

her neck, her buttocks, and upper thigh. He also observed tears and abrasions to

Willie’s vaginal area, which he testified were consistent with the events as

described by Willie. A DNA analysis revealed Phillip as the source of sperm

found during the examination.

      On August 23, 2001, Special Agent Tony Henrie of the FBI and Navajo

Nation Criminal Investigator Leroy Deal met with Phillip at the Shiprock, New

Mexico Police Department. Phillip was advised of, and waived, his Miranda

rights. He told the investigators five different accounts of what happened on the

night in question, but at trial, Phillip told another story. He testified that Willie

raped him, and that Willie pulled out a knife and attempted to stab him in order to

prevent him from testifying against her son in an unrelated criminal matter.

      In convicting Phillip, the jury rejected Phillip’s version of events, despite

inconsistencies in Willie’s testimony and the lack of definitive physical evidence


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showing how Phillip entered the house. In our review, we do not “weigh

conflicting evidence or consider the credibility of the witnesses.” Vallo, 238 F.3d

at 1247 (quotation omitted). Moreover, the government was not required to show

how Phillip entered Willie’s house in order to prove its case. Based on Willie’s

account of the events, the medical evidence, and the testimony of the officers, a

reasonable jury could conclude that Phillip was guilty beyond a reasonable doubt

of aggravated sexual assault. That Phillip testified and told a different story,

which the jury did not believe, does not undermine the validity of his conviction.

Accordingly, we AFFIRM.



                                ENTERED FOR THE COURT



                                Carlos F. Lucero
                                Circuit Judge




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