United States v. Freeman

70 F.4th 1265

UNITED STATES of America, Plaintiff - Appellee, v. Zechariah FREEMAN, Defendant - Appellant.

No. 22-2039

United States Court of Appeals, Tenth Circuit

FILED June 9, 2023

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:20-CR-00081-KWR-1)

Robert Spencer Jackson, Oklahoma City, Oklahoma, appearing for the Appellant.

Elias S. Kim, Attorney, United States Department of Justice, Washington, D.C. (Alexander M.M. Uballez, United States Attorney, and C. Paige Messec, Appellate Chief, Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, with him on the brief), appearing for the Appellee.

Before MORITZ, BRISCOE, and ROSSMAN, Circuit Judges.

BRISCOE, Circuit Judge.

Following a jury trial, Defendant Zechariah Freeman was convicted of one count of sexual abuse, in violation of 18 U.S.C. §§ 7, 2242, and 2246(2)(A). Freeman now challenges his conviction on appeal. Freeman argues that (1) the evidence presented at trial was insufficient to sustain his conviction of sexual abuse; (2) the district court erred by refusing to instruct the jury on an essential element of the offense; and (3) the district court erred by denying his request to use his peremptory challenges allotted by Federal Rule of Criminal Procedure 24(b)(2) to strike prospective alternate jurors.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject Freeman's arguments and affirm the district court's judgment.¹

I

A. Factual Background

On June 15, 2019, Jane Doe, Moriah Smith, Catherine Sanders, and Mercedes Rodriguez gathered at Smith's house for a barbecue. Because they intended to drink alcohol at the gathering, Doe, Sanders, and Rodriguez planned to stay the night at Smith's house. Smith's house was located within the jurisdiction of the Kirtland Air Force Base in Albuquerque, New Mexico.

Doe arrived around 2:00 p.m. that afternoon, and she began drinking within thirty minutes of her arrival. She quickly consumed two alcohol-infused seltzers. Sanders went to a nearby store and returned with a bottle of liquor. Although Sanders stopped drinking in the early evening, Doe and Smith continued drinking. Collectively, the women finished the bottle of liquor. Doe drank about half the bottle herself.

Later that evening, Smith invited three additional guests to join the gathering. Two of these guests were Smith's neighbors. One of the neighbors dropped off a bottle of tequila, and he left shortly thereafter. The other neighbor, Veronica Forester, stayed for several hours. The third guest was Freeman, who knew Smith from a previous job. Freeman did not know any of the other women at the gathering.

Freeman arrived at Smith's house around 10:00 p.m. By that point in the evening, Doe had been drinking for at least six hours; she testified that she was "very, very inebriated." ROA, Vol. III at 495. The other women at the gathering also observed that Doe was visibly intoxicated. Forester, for example, testified that Doe was "wobbly on her feet, very clumsy, and laughing loudly[.]" Id. at 97.

Later that night, Freeman, Doe, and several other guests drank a round of tequila shots in the kitchen. After Doe finished her tequila shot, Freeman grabbed Doe's head and kissed her. Although Doe initially reciprocated, she became nauseous and pulled away. Doe walked towards the bathroom because she felt like she was going to vomit. She then went to an empty bedroom, "fell on the bed," and "passed out." Id. at 497.

At some point later that night, Freeman entered the bedroom where Doe was sleeping. The next thing that Doe remembers after falling asleep is "waking up with [Freeman] on top of [her]," penetrating her vagina with his penis. Id. at 502. When Doe opened her eyes, the first thing she saw was "the gap in his teeth, and him right there." Id. Doe's shorts and underwear had been removed. Doe's arms were down at her side; she could not move them because Freeman's arms were pressed against the outside of her arms.

After Doe made a startled noise, Freeman jumped off Doe and apologized that "it wasn't that good." Id. at 505. According to Doe, she "started laughing hysterically." Id. At trial, Doe testified that her laughter was a coping mechanism in response to the "trauma" of the rape. Id. Smith overheard Doe's laughter; she described it as "[n]ervous, fearful, [and] anxious." Id. at 646. Freeman then got dressed and left the room. Smith was lying awake in her own room with the door open when she saw Freeman walk out of the bedroom where Doe had been sleeping.

The next morning, Doe woke up and found Smith in the kitchen. Smith asked what had happened between Doe and Freeman the night before. Doe answered that she woke up with Freeman on top of her, having sex with her.

Later that morning, Freeman called Smith and asked if he could come to her house. When Freeman arrived, Smith asked him what had happened the night before. Freeman admitted that he had sex with Doe, and Smith did not press for more details. The next morning, however, Smith sent Freeman the following text message:

I'm disappointed. I thought I could trust you that's why I invited you over when my best friends and I were intoxicated. In the end you're still a man though. [Doe] said when she woke up you were already having sex with her she then became a willing participant.² But what were you doing? You should be more careful of your actions around intoxicated people. I can no longer trust you.

Id. at 657.

Shortly after Freeman received Smith's message, he sent Doe the following text message:

I'm really extremely sorry about having sex with you without waking you up and making sure you were into it. I'd like to talk and hear what you have on it—but if not I understand.

Id. at 513. Doe did not respond to Freeman's text message.

The next day, Doe filed a report with the Albuquerque Police Department. A detective with the Sex Crimes Unit interviewed her. The detective realized that the Albuquerque Police Department did not have jurisdiction over Kirtland Air Force Base, and she referred Doe to the Air Force's Office of Special Investigations.

B. Procedural Background

In January 2020, a grand jury in the District of New Mexico returned an indictment charging Freeman with sexual abuse, in violation of 18 U.S.C. §§ 7, 2242, and 2246(2)(A). The indictment alleged that Freeman "unlawfully and knowingly" engaged in a sexual act with Doe while she was "incapable of appraising the nature of the conduct, and physically incapable of declining participation in the sexual act, and physically incapable of communicating unwillingness to engage in the sexual act." ROA, Vol. I at 18.

In July 2021, the case proceeded to a five-day jury trial. The government called seven witnesses, including Doe, Smith, and Sanders. The defense called seven witnesses, including Forester, Rodriguez, and Freeman.

At trial, Freeman testified that Doe consented to having sex with him. Although Freeman acknowledged that Doe was asleep when he got into the bed with her, he claimed that she eventually woke up and they began kissing. Freeman testified that Doe removed her own pants and that he performed oral sex on her. According to Freeman, they then engaged in penetrative sex, which lasted for less than five minutes and ended when Freeman had an orgasm. Freeman claimed that Doe gave him her phone number after they had sex.

Freeman also testified about why he sent a text message to Doe apologizing for having sex with her while she was asleep. According to Freeman, he "made a badly-worded text in order to encourage [Doe] to speak to [him]." ROA, Vol. III at 237. On cross-examination, the government asked Freeman why he had sent a text message "apologiz[ing] to Jane Doe for having sex with her when she was asleep," if she had woken up before they had sex. Id. at 227. Freeman responded that the "text is not the truth." Id. at 228.

Freeman also called three character witnesses, who each commented on Freeman's text message to Doe. These character witnesses testified that Freeman's text was consistent with his over-apologetic character. For example, one character witness claimed that, in her understanding of Freeman's way of speaking, the text message was not an admission of guilt; she explained that Freeman's "way of speaking in difficult conversations is to assume the other's position." Id. at 116.

The jury found Freeman guilty of sexual abuse, as charged in the indictment. He was sentenced to 121 months of imprisonment, to be followed by five years of supervised release. Freeman timely filed his notice of appeal.

II

On appeal, Freeman challenges his conviction on three grounds: (1) there was insufficient evidence presented at trial to sustain his conviction of sexual abuse; (2) the district court erred by refusing to instruct the jury on an essential element of sexual abuse; and (3) the district court erred by denying his request to use his peremptory challenges allotted by Federal Rule of Criminal Procedure 24(b)(2) to strike prospective alternate jurors. We conclude that none of these arguments support a basis for reversal of Freeman's conviction.

A. Sufficiency of the Evidence

In his first issue on appeal, Freeman argues that the government presented insufficient evidence to sustain his conviction of sexual abuse under § 2242(2). We disagree.

1. Background

At the end of the government's case, Freeman moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Freeman argued that the government failed to meet its burden of proof on the essential elements of the alleged crime. The district court concluded that the government established a prima facie case and denied Freeman's motion. Freeman did not renew his motion after the close of evidence.

2. Standard of Review

Generally, we review sufficiency of the evidence de novo. United States v. Hoskins, 654 F.3d 1086, 1090 (10th Cir. 2011). Here, however, because Freeman "fail[ed] to renew the motion ...