## Facts

- In 2005 on the Cheyenne River Indian Reservation, Jeffrey Betone and Tate Jensen drank heavily at a party and stayed overnight at the house.
- Jensen testified he was asleep and intoxicated when he awoke to Betone performing oral sex on him; Jensen said he did not consent and immediately left after confronting Betone.
- Betone testified Jensen was awake and consented, claiming Jensen became upset due to fear the encounter would be disclosed.
- In 2008, Joshua Blue Arm reported Betone coerced him into sex by threatening physical harm; Blue Arm had diminished mental capacity.
- Blue Arm testified Betone threatened to “beat him up” if he did not comply; Blue Arm said he was scared and did not consent.
- Betone was indicted under 18 U.S.C. §§ 1153 and 2242 for: (1) engaging in a sexual act with Jensen when Jensen was physically incapable of declining participation or communicating unwillingness (§ 2242(2)); and (2) causing Blue Arm to engage in a sexual act by threat or fear (§ 2242(1)).
- A jury convicted Betone on both counts in the District of South Dakota, and the court imposed a 151-month prison sentence.

## Issues

1. Whether sufficient evidence supported the conviction under 18 U.S.C. § 2242(2) that Jensen was physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act.
2. Whether sufficient evidence supported the conviction under 18 U.S.C. § 2242(1) that Betone caused Blue Arm to engage in a sexual act by threat or by placing him in fear.
3. Whether the 151-month sentence was procedurally and substantively reasonable, including whether the district court correctly calculated the Guidelines and properly applied 18 U.S.C. § 3553(a).

## Decision

- The Eighth Circuit affirmed both convictions and the 151-month sentence.
- As to Jensen, the court held a rational jury could find Jensen’s intoxication and sleep rendered him physically incapable of declining participation or communicating unwillingness when the act began.
- As to Blue Arm, the court held Blue Arm’s testimony about a threat of physical harm and resulting fear, considered with evidence of his limited mental capacity, was sufficient to satisfy § 2242(1).
- The court held the sentence was procedurally sound (proper Guidelines calculation and consideration of § 3553(a)) and substantively reasonable, noting it was within the advisory Guidelines range.

## Legal Principles

- On sufficiency review, the appellate court views evidence in the light most favorable to the verdict, resolves conflicts in the government’s favor, and does not reassess witness credibility.
- Under 18 U.S.C. § 2242(2), the government need not prove total unconsciousness; it must prove the victim was physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act when it was initiated.
- A victim’s sleep and intoxication can establish physical incapacity under § 2242(2) if they prevent meaningful refusal or communication of unwillingness.
- Under 18 U.S.C. § 2242(1), a threat of physical harm can satisfy the “threatening or placing [the victim] in fear” element without a weapon or overt violence, if it causes compliance through fear.
- A victim’s vulnerability, including diminished mental capacity, is relevant to whether a threat placed the victim in fear and overcame the victim’s will.
- A within-Guidelines sentence is generally presumed reasonable on appeal when the district court correctly calculates the range and adequately considers § 3553(a).

## Conclusion

The court upheld Betone’s convictions because the jury could reasonably credit testimony showing one victim’s incapacity due to sleep and intoxication and another victim’s compliance due to fear from a physical threat, and it upheld the within-Guidelines 151-month sentence as procedurally and substantively reasonable.


United States v. Betone, 636 F.3d 384 (8th Cir. 2011)