United States of America v. Ronnie Fire Cloud, also known as Ronald Fire Cloud

United States Court of Appeals
For the Eighth Circuit
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No. 14-1094
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ronnie Fire Cloud, also known as Ronald Fire Cloud
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Aberdeen
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Submitted: November 10, 2014
Filed: March 13, 2015
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Before MURPHY, MELLOY, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
A grand jury indicted Ronnie Fire Cloud for aggravated sexual abuse by force
and attempted aggravated sexual abuse under 18 United States Code section 2241(a).
At his trial, Fire Cloud requested the district court instruct the jury regarding a lesser-1
The Honorable Charles B. Kornmann, United States District Judge for the1
District of South Dakota.

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included offense, abusive sexual contact, with respect to Count I, the charge for
aggravated sexual abuse by force. See 18 U.S.C. § 2244(a)(1). On Count I, the jury
found Fire Cloud guilty of the lesser-included offense of abusive sexual contact. On
Count II, the jury found him guilty of attempted aggravated sexual abuse. Fire Cloud
appeals, claiming that there was insufficient evidence of "force" to support the
convictions. Because the evidence taken in the light most favorable to the verdict and
reasonable inferences drawn from that evidence demonstrate that a reasonable jury
could have found Fire Cloud guilty for both offenses, we affirm.
I.
At Fire Cloud's trial, witnesses described the following events. A woman
wanted to spend time with her boyfriend a few days before her birthday, so on
November 1, 2010, she met him in McLaughlin, South Dakota, a town within the
Standing Rock Indian Reservation. The woman's boyfriend was friends with
Appellant Ronnie Fire Cloud. The woman had never met Fire Cloud before, but she
accompanied her boyfriend to Fire Cloud's home. After a night of drinking alcohol
and socializing at Fire Cloud's house and at a local bar, the couple went to sleep in
one of Fire Cloud's spare bedrooms sometime around 4:00 in the morning.
The couple woke up around 8:00 or 9:00 a.m. Because the woman suffered
from diabetes and had low blood sugar, her boyfriend left Fire Cloud's home to get
her food. The woman asked Fire Cloud if she could use his shower. Fire Cloud
consented. The woman entered the bathroom, locked the door, and began showering.
Soon Fire Cloud entered the bathroom; he was nude. While the woman was
in the shower, he snuck up on the woman from behind, rubbed his penis against her
buttocks, and grabbed between the woman's legs with his left hand. He attempted to
reach one of the woman's breasts with his right hand, but the woman clamped her arm
down and held Fire Cloud's hand between her arm and ribs to block his hand from
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reaching her breast. Fire Cloud continued pushing his hand forward. The woman
"yanked away," turned around, and pushed Fire Cloud. She screamed at him to get
away and told him she was going to tell her boyfriend what had happened. Fire
Cloud did not leave; as the woman explained in trial, "he wouldn't get away." He
instead told the woman, "Come on baby. I know you want me." He reapproached her
and tried to kiss her on the neck. She again pushed him away. She grabbed her
clothes and ran out of Fire Cloud's house.
The woman eventually found a ride home. She did not call the police
immediately upon arriving home because she was scared and believed the incident
was her fault. The next day, however, she informed police of what had happened.
Because Fire Cloud is an Indian and his home is on Indian land, the United
States Attorney's Office for the District of South Dakota sought an indictment from
a federal grand jury. The grand jury indicted Fire Cloud for two counts of sex-related
crimes. Count I charged Fire Cloud with aggravated sexual abuse by force under 18
United States Code sections 1153 and 2241(a). Count II charged him with attempted
aggravated sexual abuse under sections 1153 and 2241(a). At trial, the district court
instructed the jury as to a lesser-included offense of abusive sexual contact under
section 2244(a)(1) as to Count I.
Fire Cloud was tried on October 15 and 16, 2013. Although the jury found him
not guilty of aggravated sexual abuse by force on Count I, it found him guilty of the
lesser-included offense of abusive sexual contact. On Count II, the jury found him
guilty of attempted aggravated sexual abuse. Fire Cloud appeals.
II.
Fire Cloud contends that the jury had insufficient evidence to convict him of
either abusive sexual contact or attempted aggravated sexual abuse. When
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determining whether evidence was sufficient to support a jury's verdict, we view the
evidence in the light most favorable to the verdict and draw all reasonable inferences
from the evidence in favor of the verdict. United States v. Ali, 616 F.3d 745, 755 (8th
Cir. 2010). Viewed in this light, the evidence is sufficient if any reasonable jury
could have found the defendant guilty beyond a reasonable doubt. Id.
Among other elements of both crimes, the government had to prove that Fire
Cloud completed the sexual conduct or attempted conduct "by using force against
[the victim]." See 18 U.S.C. §§ 2241(a), 2244(a)(1); United States v. Tarnow, 705
F.3d 809, 813–14 (8th Cir. 2013) (describing the elements of aggravated sexual
abuse); United States v. Allery, 139 F.3d 609, 611 (8th Cir. 1998) (describing the
elements of abusive sexual contact). Fire Cloud does not argue that the government
presented insufficient evidence on any of the other elements; he challenges simply
that the jury had sufficient evidence to find that he used force.
Neither section 2241 nor 2246 (the section containing definitions for the
various crimes in Chapter 109A) define the term "force." We previously have held
the force element has been satisfied when "the defendant overcomes, restrains, or
injures the victim." United States v. Eagle, 133 F.3d 608, 610 (8th Cir. 1998). And
simply because a victim was able to escape does not mean that the defendant did not
use force. Allery, 139 F.3d at 611–12.
Fire Cloud contends that the trial testimony fails to show that he restrained or
injured the woman in any way, and therefore the evidence was insufficient to
demonstrate force. We disagree. The woman testified that Fire Cloud snuck up on
her from behind and grabbed her while she was in the shower of a bathroom that she
locked when she entered. Fire Cloud placed one hand between her legs and attempted
to place the other on her breast. She blocked the hand reaching for her breast, but
Fire Cloud continued pushing it forward. She had to "yank[] away" to free herself.
When she freed herself from Fire Cloud's grasp, she yelled at him to get away. But
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Fire Cloud "wouldn't get away," and he reapproached the shower and attempted to
kiss the woman. She then was forced to "shove[] him again" before she could escape
the shower and leave the bathroom.
Viewing the facts in the light most favorable to the verdict and drawing all
reasonable inferences in this light, a reasonable jury could find Fire Cloud guilty
beyond a reasonable doubt of both counts. A reasonable jury could infer that Fire
Cloud restrained the woman, thereby satisfying each count's force requirement. The
fact that the woman was able to escape Fire Cloud without additional unwelcome
sexual contact does not disprove the use of force. See Allery, 139 F.3d at 611–12.
We affirm the judgment of the district court.
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