United States of America v. Erik Vivier

United States Court of Appeals
For the Eighth Circuit
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No. 24-2483
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United States of America
Plaintiff - Appellee
v.
Erik Vivier
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: May 15, 2025
Filed: July 28, 2025
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Erik J. Vivier for sexual abuse of an incapacitated victim and
sexual abuse of a minor in violation of 18 U.S.C. §§ 2242(2), 2243(a) and 1153. The
district court1 denied his motion for a judgment of acquittal on sexual abuse of an
1 The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota.

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incapacitated victim. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.
I.
The government alleged Vivier had sex with J.M., a 15-year-old, while she
was incapacitated. According to J.M., she was familiar with Vivier because he was
her boyfriend Isaiah Poitra’s uncle. That day, J.M. had been drinking, becoming
“dizzy” and “light-headed.” Leaving her aunt’s house nearby, she went for a walk
to clear her head. She was “staggering” and “walking like a zombie.” When she
walked by Vivier’s home, he invited her in. Her uncle and cousin, who she was not
close with, were also at his home. She said she barely spoke to them. Vivier handed
her a beer while she sat on the couch. She testified to feeling “nauseous,” “light-
headed,” and not in control of her body. She said Vivier invited her to lie down in
his spare bedroom, which she did. After a few minutes, she felt someone behind
her, taking off her clothing. She said Vivier pulled her on top of him and began
having penile-vaginal sex with her. She recalled sitting upright and facing toward
his head. She testified this lasted for about five to ten minutes before she “f[e]ll onto
the bed.” She then put her clothes back on and asked if she could go home. She
said she “blacked out” when she left and did not “even really remember” getting
back to her aunt’s house. Later that night, she told Poitra that “his uncle raped” her,
which he corroborated.
According to her uncle and cousin, J.M. did not appear drunk at Vivier’s
home. Neither spoke with her much. Both were smoking marijuana. They left
shortly after J.M. arrived.
In Vivier’s first FBI interview, he denied knowing J.M. but later said he saw
her one time. He denied having sex with her. In a later interview, he said he did not
remember any sex with J.M. because, if it happened, he was probably drinking and
using methamphetamine. Vivier then said he “came to” when J.M. was on top of
him—with his penis in her vagina—and told her to get off. Vivier said he was not
in the right state of mind when J.M. had sex with him.

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At trial, the government called FBI Special Agent Timothy Wittman, who had
interviewed Vivier. Agent Wittman testified to his training and experience,
including techniques to determine an interviewee’s truthfulness, which he said he
used with Vivier. He opined that Vivier’s statements in the interview were
untruthful. Vivier moved to strike Agent Wittman’s undisclosed expert testimony,
alternatively requesting a curative instruction. The district court found that “the
testimony of the witness included technical training and other specialized
knowledge.” It denied the motion but gave a curative instruction.
The jury convicted Vivier of sexual abuse of an incapacitated victim and
sexual abuse of a minor. Vivier moved for a judgment of acquittal on sexual abuse
of an incapacitated victim. The district court denied the motion. Vivier appeals.
II.
Vivier challenges the denial of his motion for a judgment of acquittal on
sexual abuse of an incapacitated victim. This court reviews the denial of a motion
for a judgment of acquittal “de novo, evaluating the evidence in the light most
favorable to the verdict and drawing all reasonable inferences in its favor.” United
States v. Parker, 871 F.3d 590, 600 (8th Cir. 2017). “The underlying standard of
review is deferential to the jury’s verdict.” United States v. Goodwin, 719 F.3d 857,
860 (8th Cir. 2013). The court will reverse if “no reasonable jury could have found
the defendant guilty beyond a reasonable doubt.” United States v. Ways, 832 F.3d
887, 894 (8th Cir. 2016).
Section 2242(2) criminalizes knowingly engaging in a sexual act with
someone who is “(A) incapable of appraising the nature of the conduct; or (B)
physically incapable of declining participation in, or communicating unwillingness
to engage in, that sexual act.” 18 U.S.C. § 2242(2). The government must prove
beyond a reasonable doubt that: the victim was incapacitated, and the defendant
knew the victim was incapacitated. United States v. Bruguier, 735 F.3d 754, 760–
61 (8th Cir. 2013) (en banc). In other words, the defendant must have knowledge of

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the victim’s inability to grant consent, not just knowingly engage in a sexual act with
the victim. See id.
Vivier argues that the government failed to prove that J.M. was incapacitated.
But J.M. testified that she: had been drinking alcohol, which made her feel light-
headed, dizzy, and nauseous; was “walking like a zombie”; drank more alcohol at
Vivier’s home and felt intoxicated; and, in Vivier’s spare bedroom immediately
before the incident, felt like she did not have control over her body. This evidence
is sufficient for a reasonable jury to find beyond a reasonable doubt that J.M. was
incapacitated. See United States v. Aungie, 4 F.4th 638, 643 (8th Cir. 2021) (one
witness account alone is sufficient to sustain a conviction). See also United States
v. Peterson, 887 F.3d 343, 347 (8th Cir. 2018) (“credibility determinations are
uniquely within the province of the trier of fact, and are entitled to special deference”
(cleaned up)).
Vivier also argues that no testimony indicated he knew J.M. was incapacitated.
But J.M. testified that Vivier: gave her more alcohol; invited her to lie down in the
spare bedroom; undressed her himself; and pulled her on top of him. A reasonable
jury could infer from this evidence that Vivier knew J.M. was incapacitated. See
United States v. Pace, 922 F.2d 451, 452 (8th Cir. 1990) (“giving the government
the benefit of all reasonable inferences from that evidence”). See also United States
v. Brown, 702 F.3d 1060, 1063–64 (8th Cir. 2013) (“the evidence need not preclude
every outcome other than guilty”). Because a reasonable jury could find Vivier
guilty of sexual abuse of an incapacitated victim beyond a reasonable doubt, the
district court properly denied the motion for a judgment of acquittal.
III.
Vivier contends that the district court should have declared a mistrial because
of Agent Wittman’s undisclosed expert testimony. A defendant who invites the
district court to take a particular action waives his right to claim on appeal that the
action was erroneous. See United States v. Campbell, 764 F.3d 874, 879 (8th Cir.
2014). In other words, a “defendant cannot complain on appeal that the court

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proceeded in a way that his lawyer requested.” United States v. Corn, 47 F.4th 892,
895 (8th Cir. 2022).
Vivier requested, as an alternative to striking Agent Wittman’s undisclosed
witness testimony, the following curative instruction:
You have heard testimony from Special Agent Wittman. Individuals
who have become experts in a field may, sometimes, testify to their
opinions on matters in that field. Special Agent Wittman did not testify
as an expert witness in this case. You should not consider the testimony
he provided as expert opinion testimony in any particular field.
You should consider Special Agent Wittman’s testimony just like any
other testimony. You may accept or reject it and should give it as much
weight as you think it deserves.
The district court gave this proposed curative instruction almost word-for-word. By
requesting this instruction, Vivier invited any error from these two paragraphs. He
cannot now argue that they warrant a mistrial.
Still, Vivier disputes the court’s insertion of two sentences into his proposed
instruction, which added: “Special Agent Wittman has testified to his opinion of
Mr. Vivier’s truthfulness. You should disregard his opinion to the extent that it is
based on his specialized knowledge, skill or training.”
Vivier contends the district court’s instruction erroneously allowed the jury to
consider Agent Wittman’s opinion about the truthfulness of Vivier’s statements. An
expert may not opine on the believability or truthfulness of a witness’s story. See
United States v. Kime, 99 F.3d 870, 884 (8th Cir. 1996), discussing Fed. R. Evid.
702. Nor may a lay witness address “the specific believability and truthfulness of [a
witness’s] story.” United States v. Azure, 801 F.2d 336, 341 (8th Cir. 1986),
discussing Fed. R. Evid. 608(a) (only allowing testimony about a witness’s
character for truthfulness). Accordingly, the district court erred by limiting the
curative instruction “to the extent” Agent Wittman’s opinion of Vivier’s relied on
his expertise.

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Because Vivier did not move for a mistrial, this court reviews for plain error.
See United States v. Waldman, 310 F.3d 1074, 1078 (8th Cir. 2002). To prevail
under plain error review, the defendant must show “(1) an error, (2) that is plain, (3)
that affects [the defendant’s] substantial rights,” and (4) that “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009). “To establish that the error affected
his substantial rights, [Vivier] must show a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” United States v.
Alexander, 114 F.4th 967, 975 (8th Cir. 2024) (cleaned up).
Even without Agent Wittman’s testimony about the untruthfulness of Vivier’s
statements, inconsistencies called the credibility of Vivier’s story into question: he
initially denied knowing or having ever met J.M.; he then acknowledged knowing
her but denied any sexual activity; he later admitted to a sexual act with J.M.,
claiming he thought that she was over sixteen years old and that the acts were
consensual; he eventually stated he didn’t “need no kids from no minors.” On the
other hand, J.M.’s story remained consistent. Other witnesses corroborated her
version of events. Vivier has not shown a reasonable probability that without Agent
Wittman’s opinion testimony the outcome would be different.
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The judgment is affirmed.
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