United States of America v. Sidney Charles Decrane

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SIDNEY CHARLES DECRANE,
Defendant-Appellant.
No. 18-30044
D.C. No.
1:16-cr-00118-SPW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted March 5, 2019
Portland, Oregon
Before: GRABER and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.
Defendant Sidney Charles DeCrane stands convicted of abusive sexual
contact with a minor, in violation of 18 U.S.C. § 2244(a)(3) (Count I), and two
counts of attempted sexual abuse, in violation of 18 U.S.C. §§ 2243(a) and
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.

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2242(a)(2)(B) (Counts II and III). He challenges the sufficiency of the evidence.
Viewing the evidence in the light most favorable to the prosecution, we must
decide whether any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. United States v. Kaplan, 836 F.3d 1199,
1211–12 (9th Cir. 2016). We affirm.
1. It is undisputed that the victim was between the ages of 12 and 16, that
Defendant is more than four years older than the victim, that Defendant and the
victim are Indian persons, that the victim correctly identified Defendant, and that
the offense occurred in Indian Country. The victim testified that she awakened to
find Defendant’s hand, under the blanket that was covering her while she slept,
first moving up her inner thigh and then touching her vagina underneath her gym
shorts but over her underpants. We disagree with Defendant’s argument that the
victim’s description of the event was "too fleeting" or "too indefinite" to support
the conviction under § 2244(a)(3). See United States v. Neil, 312 F.3d 419, 420
(9th Cir. 2002) (affirming a § 2244(a)(3) conviction where the defendant "felt the
girl’s breasts and buttocks through her clothing").
2. With respect to the attempt counts (Counts II and III), Defendant
challenges the element of intent, that is, whether the evidence permitted the jury to
find beyond a reasonable doubt that Defendant intended skin-to-skin contact with
2

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the victim’s genitalia. Circumstantial evidence and reasonable inferences drawn
from it can sustain a conviction. United States v. Shea, 493 F.3d 1110, 1114 (9th
Cir. 2007). Given the fact that the victim was asleep, in the middle of the night,
under a blanket, and that Defendant reached under the blanket and under the
victim’s shorts without knowing what (if anything) she was wearing when he
reached up to touch her vagina, the jury reasonably could infer beyond a
reasonable doubt that Defendant intended skin-to-skin contact with the victim’s
vagina. See United States v. Doe, 842 F.3d 1117, 1122 (9th Cir. 2016) (holding
that the trier of fact could have reasonably found the essential elements of the
crime beyond a reasonable doubt because "a trier of fact can rely on common
sense" (internal quotation marks omitted)).
3. Defendant also argues, as to Count III, that the government failed to
prove that the victim was incapable of declining participation in, or communicating
unwillingness to engage in, the sexual act. But the evidence showed that
Defendant engaged in the act of attempt while the victim was asleep, which
rendered her incapable of declining participation or communicating unwillingness.
AFFIRMED.
3

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1
United States v. Decrane, 18-30044
BERZON, Circuit Judge, partially dissenting:
I concur with the majority that sufficient evidence existed to convict Sidney
Decrane of abusive sexual contact with a minor in violation of 18 U.S.C.
§ 2244(a)(3) (Count I), but respectfully dissent from the holding that sufficient
evidence existed to convict Decrane of attempted sexual abuse in violation of 18
U.S.C. §§ 2243(a), 2242(a)(2)(B) (Counts II & III). In my view, no rational trier of
fact could find beyond a reasonable doubt that Decrane intended to make skin-to-
skin contact with his victim’s genitalia, as required for conviction of sexual abuse.
See 18 U.S.C. § 2246(2)(D).
The majority concludes that a reasonable jury could find intent to make skin-
to-skin contact based on the time of the incident, the fact that Decrane touched the
victim’s vagina above her underpants, and the fact that when he did so, Decrane
reached under a blanket and shorts, and may not have known whether the victim
was wearing anything underneath the shorts.
Touching through clothing, without more, is not enough to infer beyond a
reasonable doubt intent to make skin-to-skin contact. At no time did DeCrane
make skin-to-skin contact with the victim’s genitalia. Nor did DeCrane express to
anyone he intended to do so. The victim testified that she woke up to the feeling of
DeCrane momentarily touching her vagina under her blanket and shorts and over
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
her underpants. DeCrane may not have known whether his victim was wearing
underpants when he reached to touch her. But it is a logical leap—one without
basis in evidence—to conclude from this possible lack of knowledge an intent to
make skin-to-skin contact. To do so, a reasonable juror would have to infer beyond
a reasonable doubt that DeCrane believed his victim was not wearing underpants
and so decided to touch her, intending to touch her skin. But that is an inference
the evidence does not support to the required degree of certainty. We—or a
reasonable juror—have no idea what DeCrane knew or believed at the time he
reached under the blanket.
It is possible, of course, that Decrane did intend to make skin-to-skin contact
when he touched his victim’s underpants. Who knows what idiosyncratic sexual
proclivities an individual who does such a thing may have? But that is the problem.
Again, to sustain a conviction, a rational trier of fact must find the essential
elements of a crime beyond a reasonable doubt. United States v. Kaplan, 836 F.3d
1199, 1211–12 (9th Cir. 2016). “[M]ere speculation” about an individual’s sexual
motives or proclivities does not meet that standard. United States v. Nevils, 598
F.3d 1158, 1167 (9th Cir. 2010); see, e.g., United States v. Hayward, 359 F.3d 631
(3d Cir. 2004) (finding insufficient evidence to support sentence for sexual abuse
where defendant had pushed a minor’s head toward his penis, which was
underneath his pants at the time).

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3
Moreover, because there was no evidence, apart from touching the victim
above her clothing, from which to infer intent, finding the evidence here sufficient
for an attempted sexual abuse conviction would mean that many—perhaps most—
convictions for sexual contact with a minor by touching genitalia above clothing
would also constitute attempted sexual abuse of a minor, largely erasing the
distinction between the two crimes. The same speculation that the defendant
preferred to, and intended to, touch the victim directly on her skin—because why
wouldn’t he?—would be available almost always where the only actual touching
was above clothing. But merging the two crimes contravenes Congressional intent
to differentiate between the two types of conduct—sexual contact and sexual
abuse. See Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) (“[W]hen the
legislature uses certain language in one part of the statute and different language in
another, the court assumes different meanings were intended.”).
I note that neither the government nor the majority has pointed to any case in
which there was a conviction for attempted sexual abuse of a minor on evidence of
intent to engage in skin-to-skin contact as scant as the evidence here. If there was
even slightly more evidence of intent—if, for example, DeCrane tried to pull down
the victim’s underpants, or stated his desire to have sex with the victim, or had
previously engaged in skin-to-skin contact with a minor’s genitalia, see Fed. R.
Evid. 404(b)(2)—I could agree that there would be sufficient evidence to justify

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4
affirming. But on the facts presented here—essentially the same facts that establish
the sexual contact crime— I would hold that there was insufficient evidence to
sustain DeCrane’s conviction for sexual abuse.
I respectfully dissent.

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