United States District Court, D. Oregon
J. Williams, United States Attorney, Jennifer J. Martin and
Natalie K. Wight, Assistant United States Attorneys, United
States Attorney's Office, Of Attorneys for Plaintiff.
Hamilton, Assistant Federal Public Defender, Of Attorney for
OPINION AND ORDER
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE
federal jury convicted Defendant Shane Britton of one count
of abusive sexual contact in violation of 18 U.S.C. §
2244(b). Defendant now moves for a new trial under Federal
Rule of Criminal Procedure 33. ECF 70. For the reasons that
follow, the motion for a new trial is DENIED.
court may vacate the verdict and grant a new trial "if
the interest of justice so requires." Fed. R. Crim. P.
33(a). The court's power to grant a motion for new trial
is much broader than its power to grant a motion for judgment
of acquittal. United States v. Kellington, 217 F.3d
1084, 1097 (9th Cir. 2000). Defendant makes several arguments
in support of his motion, but they do not singularly or
cumulatively warrant the granting of a new
argues that the jury was exposed to inflammatory and
prejudicial testimony when two witnesses testified that they
believed that the victim had been raped. Ms. Conner, the
victim's aunt, testified that she had asked her niece if
she had been raped. TR 63. Ms. Conner, however, also
testified that her niece's answer was "no." TR
66. Ms. Cortez, the victim's friend, also used the word
"rape," but explained that her own personal
definition of the word "rape" included more than
unwanted sex and also encompassed unwanted touching. TR 83.
Because Ms. Conner clarified that her niece had told her that
she had not been raped, and Ms. Cortez clarified that her own
definition of rape included unwanted touching, the jury was
not left with the false impression that the victim had been
raped. Defendant did not object to Ms. Conner's or Ms.
Cortez's testimony on the grounds that it was
inflammatory or prejudicial, nor did he ask for a curative
instruction to the jury. Because neither witness testified
that they believed that the victim had been raped, under the
commonly understood and legal definition of the word
"rape," the actual trial testimony was neither
inflammatory nor unduly prejudicial and did not deprive
Defendant of a fair trial.
also assigns error to the testimony of expert witness Dr.
Gail Goodman. Before trial, Defendant objected to the
admission of Dr. Goodman's testimony, and the Court
offered Defendant a continuance of the trial date in order to
secure his own expert witness. Defendant declined the
Court's offer of a continuance. He now argues that Dr.
Goodman's testimony amounted to unlawful vouching
testimony and was unduly prejudicial.
Goodman testified about the various behaviors and reactions
exhibited by victims of child sexual abuse. She did not
comment on the facts of the case or the credibility of the
specific victim in this case, whom she did not examine.
Instead, she testified about general behavioral
characteristics of child sex abuse victims based on her
professional experience as a research psychologist. That is
proper expert opinion. See United States v. Bighead,
128 F.3d 1329, 1330 (9th Cir. 1997) (holding that it was not
improper to permit expert testimony, that "consisted of
her observations of typical characteristics drawn from many
years experience interviewing many, many persons, interviewed
because they were purported victims of child abuse").
Dr. Goodman's use of the term "child sexual
abuse" was not unduly prejudicial. Dr. Goodman explained
that the term "child" is typically defined as
anyone below the age of consent in a jurisdiction. TR 187.
Although the victim in this case was seventeen and thus over
the age of consent under federal law, she was younger than
the age of consent in many jurisdictions (including Oregon)
and thus was within the age demographic for many of the
studies of child sexual abuse that Dr. Goodman discussed.
Id. Dr. Goodman's testimony did not give the
jury the impression that the victim in this case was underage
and unable to consent to sexual touching. Furthermore, the
Court explicitly instructed the jury that the victim in this
case was over the age of consent. TR 231, see also
ECF 60 (Jury Instruction No. 19).
Defendant objects to several aspects of the government's
closing and rebuttal arguments. He argues that by
characterizing the defense theory as "you need to blame
[the victim] at the age of 17 for not having the wherewithal
to say 'Oh, no, don't do that, '" the
government improperly denigrated the defense by
characterizing the defense as blaming the victim and deprived
Defendant of the benefits of the reasonable doubt standard.
TR 260. The defense theory was that Defendant lacked
knowledge that the victim did not consent. The defense theory
was that because "she doesn't say no [and s]he
doesn't tell him to leave," Defendant did not know
that his touching was nonconsensual. TR 248 (Defendant's
closing argument). During closing argument, Defense counsel
repeatedly emphasized all of the things that the victim did
not do to communicate her lack of consent. TR 247-49.
Implicit in the defense theory of the case is that the victim
should have spoken up and that any unwanted touching
that occurred was, at least in part, her own fault. The
government's argument that the defense theory involved
blaming the victim was not improper and did not deny
Defendant the benefit of the reasonable doubt standard.
Instead, it was an accurate characterization of the defense
theory in this case.
next argues that the government essentially sought a strict
liability standard: Because Defendant entered the
victim's bedroom, therefore he must be guilty. But an
examination of the evidence and argument make clear that the
government never advanced or urged a strict liability theory.
The focus of the trial and the government's closing
argument was not on Defendant's presence in the
victim's bedroom, but on the unwanted sexual contact
between Defendant and the victim. TR 238. The prosecutor
emphasized the fact that Defendant entered the victim's
bedroom without her permission, alongside all of the other
acts that Defendant undertook without the victim's
permission, as further evidence that he similarly did not
have, or did not care whether he had, permission to initiate
sexual contact with the victim. TR 235-38. Prosecutors have
latitude in how they fashion a closing argument, and
"[i]nherent in this latitude is the freedom to argue
reasonable inferences based on the evidence." United
States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991).
also objects to a statement made by the government during its
rebuttal argument that the jury should "[h]old
[Defendant] accountable for his conduct. Hold him accountable
for the decisions that he made, knowing that [the victim] did
not want him to touch her. Find him guilty." TR 261.
Defendant did not object to these statements at the time. He
now argues that this statement improperly demanded that the
jury find Defendant guilty, rather than weigh the evidence.
Prosecutors may "tell the jury that it is its duty to
convict if it concludes that the defendant is guilty beyond a
reasonable doubt." United States v. Gomez, 725
F.3d 1121, 1131 (9th Cir. 2013). Prosecutors cannot, however,
"state that the duty of the jury is to find the
defendant guilty." United States v. Sanchez,
176 F.3d 1214, 1224 (9th Cir. 1999). Courts have recognized
that "[t]here is perhaps a fine line between a proper
and an improper 'do your duty' argument."
Id. The prosecutor's statement to the jury to
hold Defendant accountable "for the decisions that he
made knowing that [the victim] did not want him to touch
her" falls on the permissive side of this border. The
prosecutor did not ask the jury to hold Defendant accountable
for anything other than his actions and his knowledge. On the
other hand, the prosecutor failed to include a reminder that
the jury should find Defendant guilty only if it concludes
that the evidence demonstrates beyond a reasonable doubt that
he did commit the crime charged.
the government's the statement were improper, which it
was not, "we do not think [it] so poisoned the well as
to require a new trial." United States v.
Castro-Davis,612 F.3d 53, 68 (1st Cir. 2010). The jury
received instructions on the reasonable doubt standard, and
the Court instructed the jury that its job was to "weigh
and evaluate all of the evidence received in this case and in
that process to decide the facts." TR 222-24. The jurors
were each given a copy of the instructions to take with them
into deliberations. "[A]ny potentially harmful ...