Lawrence E. Lupien v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1532
___________
Steven Anthony Sera, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, Director, Arkansas *
Department of Corrections, *
*
Appellant. *
___________
Submitted: December 15, 2004
Filed: March 7, 2005
___________
Before MELLOY, BRIGHT, and BOWMAN, Circuit Judges.
___________
BOWMAN, Circuit Judge.
Steven Anthony Sera was convicted by an Arkansas jury on eight criminal
counts related to his use of Rohypnol, a so-called "date rape drug," to perpetrate sex
crimes against two women in Arkansas. After the Arkansas Supreme Court affirmed
his convictions on appeal, Sera filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 (2000) challenging only his conviction on one count of rape. The
District Court granted Sera's petition on the ground that the evidence was insufficient
to support a finding of rape. Because we determine, in concordance with the
Arkansas courts, that the evidence could lead a rational juror to find the elements of
rape beyond a reasonable doubt, we reverse.

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I.
Sera came under investigation in the summer of 1997 after his wife ("Mrs.
Sera") found and turned over to police a videotape depicting three sexual encounters
between Sera and three different women who appeared to be unconscious. One of the
women was Mrs. Sera's younger sister, Patty Coleman, a college student in Missouri.
Police eventually identified the other two women as Tammy Deal, a resident of
Arkansas, and Melanie Hataway, a resident of Texas. Charges were brought against
Sera in Arkansas, Texas, and Missouri for drugging, kidnaping, and sexually
assaulting or raping the three women on the videotape, as well as a fourth woman,
Jackie Haygood, in Arkansas. We are called upon here only to address Sera's
conviction in Arkansas for the rape of Deal, and we accordingly focus our discussion
on the facts relating to that incident. We recount the facts in the light most favorable
to the verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
In late summer of 1996, Sera lived with his wife and daughter in Dallas, Texas,
where he owned and operated a lumber company. After hearing that a lumber mill
was closing in Warren, Arkansas, Sera began visiting Warren to investigate, purchase,
and set up operations at the mill. On one of these visits at the end of August or early
September 1996, Sera met Deal in a Warren bar. The two spoke for several minutes,
and Sera later arranged for flowers to be delivered to Deal the next day. The two
eventually began dating.
The first occasion on which Deal spent any significant time alone with Sera
occurred in October 1996. Deal's cousin invited Deal's two children to her house for
the afternoon, and upon hearing this, Sera invited Deal to accompany him on a drive.
After taking the children to the cousin's house, Sera and Deal drove to nearby
Monticello, Arkansas. During the drive to Monticello, Sera told Deal that he had a
six-pack of beer in the trunk of the car and asked her if she would like one. Deal
agreed, and Sera pulled the car over to the side of the road to get the drink from the
trunk. Sera remained at the rear of the car for some time, prompting Deal to ask what
was taking him so long. Sera replied that he was mixing himself a drink. When he

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returned to the car, Sera handed Deal a bottle of beer and continued driving. When
Deal finished drinking the beer, Sera again pulled the car over and retrieved a second
beer for her from the trunk of the car. Deal drank the second beer and the two drove
around Monticello. Deal testified that from that point forward, she has no memory
of most of the events of the afternoon. Without her knowledge, Sera drove her to the
bed and breakfast at which he was staying in Warren. While Deal was unconscious
and without her consent, Sera penetrated her vagina with his penis and ejaculated on
her face. These actions were recorded on the videotape found by Mrs. Sera. After
the episode, Sera drove Deal to her cousin's house to pick up her children. Her cousin
testified that Deal "seemed confused" and was no longer wearing the socks and tee-
shirt that she had been wearing when she left on the trip with Sera. Tr. at 2093. Deal
has no memory of picking up her children. Her next clear memory is of waking up
the next morning for work. Upon awakening, nothing indicated to Deal that she had
sexual intercourse the prior evening.
The couple's next trip was to a casino in Greenville, Mississippi. Again Sera
packed beer in the trunk of his car. Sera gave Deal alcoholic drinks both on the drive
to Greenville and at the casino. Deal testified that she cannot recall leaving the
casino or the return trip to Warren. Her next memory is of waking up the following
morning on the couch in the living room of the bed and breakfast. Sera insinuated
that she had consumed too much alcohol the day before.
In late October or early November 1996, Deal accompanied Sera on a third out-
of-town trip. The two drove to Little Rock, Arkansas, to dine at the Macaroni Grill
restaurant. Along the way, Sera stopped and bought two individual cans of beer.
Deal drank one of the beers and had a few drinks from the other. During dinner, Deal
drank a glass of wine and a glass of water. Near the end of dinner, Deal went to the
restroom. After she returned to the table and finished her water, she began to feel ill
and have stomach cramps. Deal testified that her last recollection of the evening was
walking to the car in the restaurant parking lot. She did not become aware again until
the next morning when she awoke in Sera's bed at a bed and breakfast. She found
herself wearing nothing but a tee-shirt, but does not recall how she got to that state

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of undress. Deal continued to have stomach cramps and felt nauseated. She had
diarrhea and vomiting the remainder of the day.
The couple's only consensual intimate encounter occurred in mid-November
1996 at a bed and breakfast. Deal testified that she was conscious throughout and
that the encounter was not videotaped. Deal returned to her own home after the
encounter; she did not stay overnight at the bed and breakfast. The two stopped
dating soon thereafter. Deal's last encounter with Sera was on December 12, 1996,
when she witnessed Sera holding an unconscious woman, whom Deal recognized as
Haygood, in his arms as he entered the bed and breakfast.
In March 1998, Sera was tried in the Circuit Court of Bradley County,
Arkansas, on eight counts, as summarized:
(a) Involving Deal and the trip to Monticello:
Count 1: Introduced Rohypnol into the body of Deal without her knowledge; Ark.
Code Ann. § 5-13-210 (drugging another).
Count 2: Engaged in sexual intercourse or deviate sexual activity with Deal when
she was incapable of consent because she was rendered physically
helpless by the drugging; Ark. Code Ann. § 5-14-103 (rape).
(b) Involving Deal and the trip to the Macaroni Grill:
Count 3: Introduced Rohypnol into the body of Deal without her knowledge; Ark.
Code Ann. § 5-13-210 (drugging another).
Count 4: Restrained Deal so as to interfere substantially with her liberty for the
purpose of engaging in sexual intercourse, deviate sexual activity, or
sexual contact; Ark. Code. Ann. § 5-11-102 (kidnaping).

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Count 5: Engaged in sexual intercourse or deviate sexual activity with Deal when
she was incapable of consent because she was rendered physically
helpless by the drugging; Ark. Code Ann. § 5-14-103 (rape).
(c) Involving Haygood on December 12, 1996:
Count 6: Introduced Rohypnol into the body of Haygood without her knowledge;
Ark. Code Ann. § 5-13-210 (drugging another).
Count 7: Restrained Haygood so as to interfere substantially with her liberty for
the purpose of engaging in sexual intercourse, deviate sexual activity,
or sexual contact; Ark. Code. Ann. § 5-11-102 (kidnaping).
Count 8: Engaged in conduct intended to culminate in the commission of the
offense of rape of Haygood; Ark. Code. Ann. §§ 5-3-201, 5-14-103
(attempted rape).
See Amended Information at 1–2; Judgment and Commitment Order at 1-5.
In addition to the facts set out above, the evidence introduced at trial indicated
that Mrs. Sera found a bottle labeled "Rohypnol" in Sera's suitcase following one of
his out-of-town trips. Two pharmacologists testified regarding the effects of
Rohypnol on the human body. Dr. ElSohly testified that ingestion of Rohypnol can
cause hypnosis, total muscle relaxation, and loss of memory. After viewing the
videotape, Dr. ElSohly concluded that the behaviors of Deal, Hataway, and Coleman
shown therein were consistent with ingestion of Rohypnol. Dr. Tolliver similarly
testified that, when ingested, Rohypnol will cause hypnosis, relax muscles, and cause
anterograde amnesia. He stated that a person under the influence of Rohypnol can
be talking and functioning yet still not be able to remember what is happening during
that time. Furthermore, Dr. Tolliver stated that combining Rohypnol with alcohol
causes a magnification of the drug's effects, which can cause a deeper state of
unconsciousness. The side-effects of the drug, including gastrointestinal problems

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and stomach cramping, may also become more severe when the drug is mixed with
alcohol. Finally, after viewing the videotape, Dr. Tolliver agreed that the women's
behaviors were consistent with the effects of Rohypnol.
Sera testified on his own behalf. He asserted that the women were simply
drunk, not drugged, and that they consented to his sexual advances. Sera admitted
to possessing Rohypnol, but claimed that a doctor in Mexico had prescribed it to treat
his insomnia.
A jury convicted Sera of all eight counts but reduced the Count 2 rape charge
stemming from the Monticello trip to the lesser included offense of sexual abuse in
the first degree. The jury prescribed a sentence of years for each count, with the sum
totaling eighty-five years' imprisonment. The longest single sentence was thirty
years' imprisonment for Count 5, the rape of Deal on the evening of the Macaroni
Grill trip. Accepting the jury's recommendation that Sera's sentences be served
concurrently, the trial judge sentenced Sera to thirty years' imprisonment. Sera
appealed his convictions to the Supreme Court of Arkansas, which affirmed. Sera v.
State, 17 S.W.3d 61 (Ark. 2000). Sera then filed a petition for a writ of certiorari in
the United States Supreme Court, which was denied. Sera v. Arkansas, 531 U.S. 998
(2000). Foregoing any post-conviction relief in state court, Sera filed his petition for
habeas corpus relief in federal court. Sera challenged only the rape conviction and
argued that his due process rights were violated because there was not enough
evidence to support a guilty verdict. Agreeing with Sera, the District Court set aside
the rape conviction. Sera v. Norris, 312 F. Supp. 2d 1100 (E.D. Ark. 2004). The
Director of the Arkansas Department of Corrections appeals the District Court's order.
II.
The District Court concluded that the evidence was legally insufficient, as a
constitutional matter, to support Sera's conviction on the charge that he raped Deal.
This was a legal determination, which we review de novo. King v. Bowersox, 291
F.3d 539, 540 (8th Cir.), cert. denied, 537 U.S. 1093 (2002).

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In the interests of finality and federalism, federal habeas courts are constrained
by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to exercise
only a "limited and deferential review of underlying state court decisions." Lomholt
v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Thus, a federal court may not grant a writ
of habeas corpus with respect to any issue decided by a state court unless the state
court's decision "was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States"
or the state court's decision "was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding." 28 U.S.C.
§ 2254(d)(1), (2). A state court decision is "contrary to" clearly established Supreme
Court precedent if it "applies a rule that contradicts the governing law set forth in [the
Court's] cases" or if it "confronts a set of facts that are materially indistinguishable
from a decision of [the] Court and nevertheless arrives at a result different from [the
Court's] precedent." William v. Taylor, 529 U.S. 362, 405–06 (2000). A state court
decision is an "unreasonable application of" clearly established Supreme Court
precedent if it "correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's case." Id. at 407–08. As noted by
the Supreme Court, "a federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly." Id. at 411
(emphasis added). "Rather, that application must also be unreasonable." Id.
(emphasis added). Finally, a state court decision involves "an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings" only if it is shown that the state court's presumptively correct factual
findings are rebutted by "clear and convincing evidence" and do not enjoy support in
the record. 28 U.S.C. § 2254(e)(1); Jones v. Luebbers, 359 F.3d 1005, 1011 (8th
Cir.), cert. denied, 125 S. Ct. 670 (2004).

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1Pursuant to this argument, Sera asserts that the decision of the Arkansas
Supreme Court upholding the rape conviction is simultaneously "contrary to" federal
law, an "unreasonable application of" federal law, and an "unreasonable
determination of the facts in light of the evidence presented." Brief for Appellee at
28, 30. As the District Court explained, however, the legal standards applied by the
Arkansas Supreme Court, though based on state law, are not contrary to United States
Supreme Court precedent. Sera, 312 F. Supp. 2d at 1113–14. Moreover, Sera has
made no attempt to rebut the state court's factual findings with clear and convincing
evidence to the contrary. The true essence of Sera's argument is that the Arkansas
Supreme Court's application of the law was unreasonable because, in applying the
presumptively correct facts to the correct law, the court erroneously concluded that
the evidence was sufficient to establish guilt beyond a reasonable doubt. We address
this sufficiency-of-the-evidence argument herein.
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III.
Sera alleges that there was insufficient evidence to find him guilty beyond a
reasonable doubt of raping Deal on the evening of the Macaroni Grill trip. Therefore,
he claims, his state court conviction violates the Due Process Clause of the
Fourteenth Amendment and clear Supreme Court precedent that requires all elements
of a crime be proved beyond a reasonable doubt.1 See Jackson, 443 U.S. at 316; In
re Winship, 397 U.S. 358, 364 (1970). In support, Sera argues that evidence of
sexual penetration, an essential element of rape, was absent and that the state courts
improperly relied upon "other act" evidence admitted under Ark. R. Evid. 404(b) as
direct evidence of guilt, i.e., to "bridge the gap" left by the lack of proof of sexual
penetration. Brief for Appellee at 33 n.12.
In assessing whether there is sufficient evidence to support Sera's rape
conviction, "the scope of our review . . . is extremely limited." Whitehead v.
Dormire, 340 F.3d 532, 536 (8th Cir. 2003) (citations to quoted cases omitted). It is
not relevant whether we believe that the evidence at trial established guilt beyond a
reasonable doubt. See Jackson, 443 U.S. at 318–19. Rather, we must determine
"whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond

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2Arkansas law in effect at the time of the offense prescribed that a "person
commits rape if he engages in sexual intercourse or deviate sexual activity with
another person . . . who is incapable of consent because [the person] is physically
helpless." Ark. Code Ann. § 5-14-103(a)(2) (1993). The statute defined sexual
intercourse as the "penetration, however slight, of the labia majora by a penis." Ark.
Code Ann. § 5-14-101(9) (Supp. 1995). "Deviate sexual activity" was defined as
"any act of sexual gratification involving . . . the penetration, however slight, of the
anus or mouth of one person by the penis of another person; or . . . the penetration,
however slight, of the labia majora or anus of one person by any body member or
foreign instrument manipulated by another person." Id. at § 5-14-101(1).
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a reasonable doubt." Id. (emphasis in original). This standard recognizes that it is the
province of the fact-finder, not this court, "to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts." Id.
The essential statutory elements of rape to be proven under Arkansas Code § 5-
14-103 were: (1) sexual intercourse or deviate sexual activity (2) with a physically
helpless person.2 Only the first element is in controversy. Sera asserts, and we
readily acknowledge, that the record contains no direct evidence of sexual intercourse
or deviate sexual activity. The corpus delicti of the crime, however, may be proven
in whole or in part by circumstantial evidence. See United States v. Wright, 340 F.3d
724, 730 (8th Cir. 2003); Hill v. Norris, 96 F.3d 1085, 1088 (8th Cir. 1996); see also
65 Am. Jur. 2d Rape § 69 (2001) ("The corpus delicti may be proved in whole or in
part by circumstantial evidence, the same as any other fact in controversy."). "[I]t is
well-settled that the jury is entitled to consider circumstantial evidence exactly as it
would direct evidence." United States v. Lam, 338 F.3d 868, 871 (8th Cir. 2003). As
the Supreme Court has recognized,
circumstantial evidence may in some cases point to a wholly incorrect
result. Yet this is equally true of testimonial evidence. In both
instances, the jury is asked to weigh the chances that the evidence
correctly points to guilt against the possibility of inaccuracy or
ambiguous inference. In both, the jury must use its experience with

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3It is self-evident that often the victim of a date-rape drug cannot testify about
the event and physical evidence of the rape has long disappeared when the rape is
later discovered. See Jean Seligmann & Patricia King, 'Roofies': The Date-Rape
Drug, Newsweek, Feb. 26, 1996 at 54 (noting that women who are raped after being
drugged with Rohypnol "can't usually remember any details of the crime"). It is
equally self-evident that the perpetrator in date-rape-drug cases may drug the victim
for these very reasons.
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people and events in weighing the probabilities. If the jury is convinced
beyond a reasonable doubt, we can require no more.
Holland v. United States, 348 U.S. 121, 140 (1954).
While physical or forensic evidence of rape is eminently useful when found,
its absence does not necessarily mandate acquittal. Indeed, when drugs are used to
incapacitate a date-rape victim, there is often no direct evidence of the rape.3 We
find, however, that the circumstantial evidence presented in this case is sufficient to
support a finding of rape. We agree with the Arkansas Supreme Court's conclusion
that "[t]he evidence was not such that the jury was reduced to mere speculation and
conjecture." Sera, 17 S.W.3d at 75. As summarized by the Arkansas Supreme Court,
the evidence could lead a reasonable fact finder to convict Sera of the rape of Deal:
It was not speculation for the jury to believe Deal's testimony that she
had not had too much to drink. Nor was it conjecture for the jury to
believe that Deal's lack of memory was due to a documented side effect
of Rohypnol ingestion known as anterograde amnesia. As Dr. Tolliver,
testified, "While you are actually under the effect of the drug, you may
not remember some of the things you do or some of things that are done
to you or what conversations you have or what is, what your experiences
are." Dr. Tolliver further stated, "You can actually be functioning. You
can be talking. You can be carrying on a conversation just like we are
now and you may remember a little bit of it or you may, even may
remember all of it or you may remember none of it or you may
remember part of it." Regarding the "Macaroni Grill" incident, Dr.
Tolliver stated that Deal's complaints of not being able to remember the
trip home from the restaurant, and the stomach pains and cramping she

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4While the jury reduced the charge of rape in connection with the Monticello
trip to the lesser included offense of sexual abuse in the first degree, we do not
speculate on the jury's reasons for the decision. Moreover, the jury's verdict on
charges arising from the Monticello trip does not dictate its verdict on charges arising
from the Macaroni Grill incident. See United States v. Powell, 469 U.S. 57, 67
(1984) ("This review [of the sufficiency of the evidence] should be independent of
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experienced, would also be consistent with Rohypnol ingestion,
especially when taken with alcohol. The sickness she felt was consistent
with Deal's experience after the "Monticello" incident in which the
videotape shows unequivocally that she was unconscious throughout
most of the sexual encounter and, in fact, snored occasionally. The
evidence showed that during the relevant time period Sera had access to
the drug Rohypnol. Clearly, Sera had the opportunity, the scheme, or
plan in place, and he had already carried it out on one prior occasion
with Deal. The jury could reasonably conclude that Deal's surprise
awakening the next morning in Sera's bed in a state of relative undress
to be consistent with sexual activity of a nonconsensual nature.
Id. at 75–76.
We cannot say the decision of the Arkansas Supreme Court in any way
contravenes the standards laid down by the AEDPA. The evidence allowed the jury
to find that on the evening of the Macaroni Grill trip Sera drugged Deal with
Rohypnol, fully aware that the drug would leave Deal incapacitated and without
memory. The jury was not required to check its common sense at the deliberation
room door; from the evidence presented the jury could conclude that Sera's purpose
for the drugging was more sinister than just creating the opportunity to watch Deal
sleep. The jury heard Deal testify that she awoke in Sera's bed with no memory of
how she got there. She found herself wearing only a tee-shirt but does not remember
undressing. Moreover, the jury watched the videotape depicting Sera's actions on the
day the couple traveled to Monticello. The videotape shows Sera penetrating Deal's
vagina on several separate instances (each from a varied camera angle), and Deal is
heard snoring. Sexual intercourse, the corpus delicti of rape, is clearly evident on the
videotape.4 The circumstances surrounding the Monticello trip and the Macaroni

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the jury's determination that evidence on another count was insufficient."); see also
Dunn v. United States, 284 U.S. 390, 394 (1932) ("That the verdict may have been
the result of compromise, or of a mistake on the part of the jury, is possible. But
verdicts cannot be upset by speculation or inquiry into such matters.").
5Although Deal testified that she did not know whether she had sexual
intercourse with Sera on the evening of the Macaroni Grill trip, this is consistent with
Deal's testimony that she did not know whether she had sexual intercourse with Sera
on the evening of the Monticello trip—an evening on which sexual intercourse
undeniably occurred. See Tr. at 2051.
6The District Court determined that the "only evidence" to support the sexual
intercourse or deviate sexual activity prong of the rape statute was the evidence of
sexual penetration during the Monticello incident. Sera, 312 F. Supp. 2d at 1123–24
(emphasis in original). As shown by the evidence recounted herein, the record does
not support the District Court's overly limited view of the evidence.
7Ark. R. Evid. 404(b) (1997) provided as follows:
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Grill trip are substantially similar. In both, Deal developed anterograde amnesia after
consuming drinks provided by Sera. In both, Sera took Deal to a bed and breakfast
while she was in the state of unconsciousness. In both, Deal's state of dress was
altered when she awoke. Deal testified that the way she felt when awaking in Sera's
bed the morning after the Macaroni Grill trip was consistent with the way that she felt
after the video-taped episode.5 The evidence relating to the Monticello trip is thus
indicative of Sera's plan of action, or modus operandi, on the evening of the Macaroni
Grill trip. Taking the evidence together, the jury reasonably could have inferred that
sexual penetration occurred on the evening of the Macaroni Grill trip.6 While we
recognize that the evidence of rape was not overwhelming, we nonetheless find that
it was sufficient for "any reasonable juror" to find Sera guilty beyond a reasonable
doubt.
Sera's argument that the Arkansas Supreme Court improperly relied upon
evidence of his transgressions against Coleman, Hataway, and Haygood as evidence
of guilt, in violation of Ark. R. Evid. 404(b) 7 and the limiting instructions given the

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Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
8We are not concerned here with whether this evidence was properly admitted
by the state trial court, as we are prohibited from reviewing matters of state
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jury, is without basis. Contrary to Sera's assertion, the Arkansas Supreme Court did
not rely on the evidence of Sera's transgressions against other women to support its
holding that the evidence was sufficient for a reasonable juror to find that Sera raped
Deal on the evening of the Macaroni Grill trip. Sera, 17 S.W.3d at 75–76. As noted
by the District Court, Sera, 312 F.2d at 1122, 1123, the only 404(b) evidence relied
upon by the Arkansas Supreme Court in its analysis of the sufficiency of the evidence
was evidence showing that Sera had drugged and sexually assaulted Deal on the
couple's earlier trip to Monticello. See Sera, 17 S.W.3d at 76 ("Clearly, Sera had the
opportunity, the scheme, or plan in place, and he had already carried it out on one
prior occasion with Deal."). In evaluating the decision of the state supreme court, we
need not address evidence not relied upon by that court in reaching its holding. To
the extent, if any, that Sera challenges the state court's reliance on Sera's actions
against Deal on the evening of the Monticello trip to support a finding of rape on the
evening of the Macaroni Grill trip, we find no violation of his due process rights.
Arkansas Rule of Evidence 404(b), like its federal counterpart, prohibits the
use of evidence of a defendant's other crimes, wrongs, or acts solely to show his
character or to prove that he acted in conformity therewith, but permits such evidence
to be used for other purposes, including to prove motive, intent, preparation, or plan.
The evidence of Sera's actions on the evening of the Monticello trip showed plan and
modus operandi by demonstrating that Sera had gone through a similar
sequence—taking Deal on a drive to another town, drugging her with Rohypnol such
that she was unconscious, taking her to a bed and breakfast, removing her
clothes—preceding both assaults.8 Also indicative is the fact that the events were

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evidentiary law. See Clark v. Groose, 16 F.3d 960, 963 (8th Cir.), cert. denied, 513
U.S. 834 (1994). We note that, generally, "a state court's evidentiary rulings that are
based on state law do not implicate a criminal defendant's constitutional rights with
respect to the sufficiency of the evidence and thus are not cognizable on habeas
review." Westin v. Dormire, 272 F.3d 1109, 1113 (8th Cir. 2001); see also Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991) ("[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions."). The
admission of evidence at a state trial will only form the basis for federal habeas relief
when the evidentiary ruling "'infringes upon a specific constitutional protection or is
so prejudicial that it amounts to a denial of due process.'" Clark, 16 F.3d at 963
(quoting Turner v. Armontrout, 845 F.2d 165 (8th Cir. 1988)).
9While the fact that Sera followed a pattern is certainly relevant to his guilt, all
evidence must be relevant to guilt to be admitted. Fed. R. Evid. 403.
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close in time—the Monticello incident occurring only about two weeks before the
Macaroni Grill incident. Cf. United States v. LeCompte, 99 F.3d 274, 278 (8th Cir.
1996) (precluding evidence of past sexual assaults occurring eight to ten years earlier
and noting that "the events were far apart in time"). The Arkansas Supreme Court did
not rely upon evidence of the Monticello incident as direct evidence of Sera's guilt.
Rather, the court properly relied upon the evidence of Sera's earlier abuse as evidence
of Sera's plan, pattern, or modus operandi on the evening of the Macaroni Grill trip. 9
See id. at 277–78; Garner v. State, 101 S.W.3d 857, 859–60 (Ark. Ct. App. 2003).
Sera's due process rights were not violated by the state court's reliance on Sera's
sexual abuse of Deal two weeks earlier as evidence supporting the jury's conviction
of rape on the evening of the Macaroni Grill trip.
While we recognize that the evidence presented in this case could support
conflicting inferences, we must presume on habeas review "that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that
resolution." Jackson, 443 U.S. at 326. "The evidence need not exclude every
reasonable hypothesis except guilt." United States v. Williford, 309 F.3d 507, 509
(8th Cir. 2002) (citation to quoted case omitted); see also, Holland, 348 U.S. at
139–40 (rejecting argument that circumstantial evidence must exclude every

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reasonable hypothesis other than guilt); Jackson, 443 U.S. at 326 (same). This case
is similar to a host of others in which this Court affirmed convictions based solely on
circumstantial evidence despite our recognition that alternate possibilities existed.
See, e.g., Hill, 96 F.3d at 1089 (upholding murder conviction despite recognizing the
possibility that "the true killer sold the proceeds from the killing to the hitchhiking
[defendant] in the hour or so possibly separating the time of the murder from
[defendant's] appearance with [the victims] property."); United States v. Bates, 77
F.3d 1101, 1105 (8th Cir.) (upholding conviction for felon in possession of a firearm
where the defendant was found dressed in hunting apparel with two other individuals
in a boat containing two shotguns, dead ducks, and decoys, despite recognizing the
possibility that defendant was a wilderness guide and not hunting), cert. denied, 519
U.S. 884 (1996); Rhode v. Olk–Long, 84 F.3d 284, 288 (8th Cir.) (upholding felony
murder conviction despite recognizing that "some parts of the record could be read
to support [the defendant's] theories that either her parents or her children could have
inflicted the fatal injuries" on the defendant's child), cert. denied, 519 U.S. 892
(1996); see also Jackson, 443 U.S. at 325 (although it was possible that the victim
"willingly removed part of her clothing and then attacked [defendant] with a knife
when he resisted her advances," thus requiring the defendant to shoot in self-defense,
the Court presumed that the trier of fact resolved conflicting inferences in favor of the
prosecution and deferred to that resolution).
Based on the evidence, and applying the Jackson v. Virginia standard, we are
satisfied that the Arkansas Supreme Court's resolution of this issue was not an
unreasonable application of clearly established federal law. The District Court's grant
of habeas corpus is reversed, Sera's habeas petition is dismissed, and Sera's
conviction and sentence are reinstated.
BRIGHT, Circuit Judge, dissenting.
I dissent. I agree with the conclusion of Magistrate Judge Jerry W. Cavaneau,
who granted the writ in the district court, setting aside Sera’s conviction for rape of

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Tammy Deal in connection with the Macaroni Grill incident. The Magistrate Judge
stated:
Viewing the evidence in the light most favorable to the state and
presuming that all reasonable inferences were drawn in favor of the
state, no rational trier of fact could have found beyond a reasonable
doubt from the evidence in the record that [Sera] was guilty of raping
the victim as charged in Count 5 of the information and as defined by
Arkansas law. See Ward v. Lockhart, 841 F.2d 844, 847-48 (8 th Cir.
1988) (“Without that essential proof [of every element of the offense of
burglary], we must conclude that the jury exceeded the bounds of
legitimate inference, and engaged in speculation in finding Ward guilty
on that count.”)
Appellant’s App. at 741.
No evidence, direct or circumstantial, establishes or shows that Sera engaged
in sexual intercourse with Deal as alleged in Count 5. Conviction of the serious crime
of rape requires proof that is lacking here. See Jackson v. Virginia, 443 U.S. 307
(1979).
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