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United States v. Freeman.

No. 22-2039. Sexual Abuse—Sufficiency of Evidence—Jury Instructions on Offense Elements—Peremptory Challenges—Harmless Error.

June 9, 2023

Doe arrived at Smith’s house for a barbecue around 2:00 p.m. Freeman arrived at Smith’s house around 10:00 p.m., at which time Doe had been drinking for at least six hours. Doe later went to an empty bedroom and fell asleep. She woke up with Freeman on top of her, having sexual intercourse with her. Freeman was convicted of one count of sexual abuse in violation of 18 USC §§ 7, 2242, and 2246(2)(A).

On appeal, Freeman argued that the evidence was insufficient to sustain his conviction because the government failed to prove that (1) Doe was incapacitated or incapable of giving consent and (2) he knew Doe was incapacitated or incapable of giving consent. A person who is asleep when an assault occurs is incapable of appraising the nature of the sexual conduct and is physically incapable of declining to participate or communicating unwillingness to engage in the act within the meaning of § 2242(2), especially when that person was also intoxicated from drinking alcohol. Here, Doe testified that she was asleep and intoxicated from alcohol consumption, which sufficiently established her incapacity. Further, her testimony was corroborated by additional evidence, including that Freeman knew that Doe was both asleep and intoxicated. Therefore, sufficient evidence supported the conviction.

Freeman also contended that the district court committed reversible error by not including an essential element of the offense in the jury instruction outlining the elements of sexual abuse under § 2242(2). He maintained that the instruction failed to include that Doe was incapable of appraising the nature of the sexual act or physically incapable of declining participation in or communicating her unwillingness to engage in that sexual act. However, the district court’s instruction required the government to prove that Doe was incapacitated under § 2242(2), so it did not omit the contested element, and it accurately stated the governing law. In addition, because the Tenth Circuit has not issued a pattern instruction for sexual abuse under § 2242(2), the district court reasonably looked to the Fifth Circuit’s model instructions for guidance. And even if the district court erred, such error was harmless in light of the overwhelming evidence of Doe’s incapacity.

Freeman also argued that the district court deprived him of some of his peremptory challenges in connection with the selection of alternate jurors. He maintained that under Fed. R. Crim. Proc. 24 he could have used his 10 peremptory challenges allotted to strike regular jurors to strike alternate jurors. The erroneous denial of peremptory challenges does not constitute a structural error, so such error is subject to harmless-error review. Here, in the district court’s selection of 12 jurors, the defense used 7 of its 10 peremptory challenges. The court then allowed each party one peremptory challenge in selecting two alternate jurors, and each party struck one prospective alternate juror. Even if it was error to deny Freeman the additional peremptory challenges, any such error was harmless because it did not result in the seating of a biased juror who should have been struck for cause.

The judgment was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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