USA v. Vivier

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
United States of America, )
)
Plaintiff, ) ORDER DENYING MOTION FOR
) ACQUITTAL
vs. )
)
Erik James Vivier, ) Case No. 3:23-cr-142
)
Defendant. )
______________________________________________________________________________
Defendant Erik James Vivier moves for judgment of acquittal. Doc. 67. The United States
opposes the motion. Doc. 70. For the reasons below, the motion is denied.
I. BACKGROUND
A superseding indictment charged Vivier with (1) sexual abuse of an incapacitated person
and (2) sexual abuse of a minor. Doc. 26. The United States alleged Vivier had sexual intercourse
with Jane Doe, who at the time of the act was a child. Id. The United States also alleged Jane Doe
was incapacitated at the time of the incident. Id.
Trial began on March 19, 2024. Doc. 59. When the United States’ case-in-chief concluded,
Vivier moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure,
arguing insufficiency of evidence. Doc. 64 at 3. That motion was denied. Id. On March 22, 2024,
the jury returned guilty verdicts on both counts. Doc. 65. Vivier now renews his motion for
judgment of acquittal.
II. DISCUSSION
On a defendant’s motion, a court “must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). A post-verdict
judgment of acquittal is warranted only if, “viewing the evidence in the light most favorable to the
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Government and accepting all reasonable inferences that may be drawn in favor of the verdict, no
reasonable jury could have found the defendant guilty.” United States v. Jenkins, 758 F.3d 1046,
1049 (8th Cir. 2014) (cleaned up). “This standard is ‘very strict’ and a jury’s verdict should not be
overturned lightly.” United States v. Boesen, 491 F.3d 852, 855 (8th Cir. 2007) (quoting United
States v. Ellefson, 419 F.3d 859, 862 (8th Cir. 2005)). A reviewing court “must neither assess the
witnesses’ credibility nor weigh the evidence.” United States v. Johnson, 474 F.3d 1044, 1048 (8th
Cir. 2007) (citing United States v. Thompson, 285 F.3d 731, 733 (8th Cir. 2002)).
Sexual abuse of an incapacitated victim requires the jury the find that (1) Vivier engaged
in a sexual act with Jane Doe; (2) Jane Doe was incapable of appraising the nature of the conduct,
or Jane Doe was physically incapable of declining participation in, or communicating
unwillingness to engage in, that sexual act; (3) Vivier knew that Jane Doe was incapable of
appraising the nature of the conduct or was physically incapable of declining participation in, or
communicating her unwillingness to engage in, that sexual act; (4) Vivier is an Indian; and (5) the
offense was committed in Indian Country. Doc. 63. Vivier argues the United States failed to prove
elements two and three.
To the extent Vivier’s motion asserts the jury should have believed his preferred version
of events, it is unpersuasive. Determinations of witness credibility rest firmly with the jury. United
States v. Spight, 817 F.3d 1099, 1102 (8th Cir. 2016). Viewed in the light most favorable to the
verdict, Jane Doe testified that she felt like “a zombie” and had been using alcohol and drugs on
the night in question. She went on to testify that Vivier provided her with alcohol prior to the
sexual act taking place. Jane Doe also described having no control over her body when Vivier
followed her into a bedroom and had sex with her. Viewing this testimony in the light most
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favorable to the jury’s verdict, Vivier is not entitled to judgment of acquittal for sexual abuse of
an incapacitated victim.
As to the sexual abuse of a minor conviction, Vivier claims the evidence was insufficient
for the jury to find him guilty because it is a defense to the charge that he reasonably believed that
Jane Doe had reached the age of sixteen. Doc. 63. Notably, the Defendant bears the burden of
proof on this defense. Id. While Vivier did produce some evidence that he may have believed Jane
Doe had reached the age of 16, there was evidence in the record to suggest otherwise. Vivier had
multiple interactions with Jane Doe prior to the incident because she was dating his nephew. Joseph
Morin also testified that Vivier told him he frequently communicated with Jane Doe when she was
fighting with his nephew. The Court’s task is not to reexamine the evidence, but instead to
determine if the United States put forth enough evidence to support a conviction when looked at
in the light most favorable to the verdict. See Johnson, 474 F.3d at 1048; United States v. Bredell,
884 F.2d 1081, 1082 (8th Cir. 1989). On this record, there is evidence to support the jury’s rejection
of Vivier’s defense that he was not aware that Jane Doe was under the age of 16, and he is not
entitled to judgment of acquittal for sexual abuse of a minor.
III. CONCLUSION
After reviewing the record, the parties’ filings, and the relevant legal authority, Vivier’s
motion for judgment of acquittal (Doc. 67) is DENIED.
IT IS SO ORDERED.
Dated this 14th day of May, 2024.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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