Submitted June 12, 2015
Appeal from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellee: Lisa D. Kirkpatrick, Assistant U.S. Attorney, U.S. Attorney's Office, Saint Paul, MN; Clifford Ben Wardlaw, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN.
For Avery Wade Schoenborn, Defendant - Appellant: Douglas Olson, Assistant Federal Public Defender, Federal Public Defender's Office, Minneapolis, MN.
Avery Wade Schoenborn, Defendant - Appellant, Pro se, Greenville, IL.
Before LOKEN, BYE, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
A jury convicted Avery Schoenborn of sexual abuse of an incapacitated person in violation of 18 U.S.C. § § 1151, 1153(a), and 2242(2)(B). The district court varied downward from the guidelines range and sentenced Schoenborn to 84 months' imprisonment. On appeal, Schoenborn challenges the sufficiency of the evidence supporting his conviction as well as the " vulnerable victim" enhancement used in calculating his guidelines range. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court.
On the night of May 6, 2013, Schoenborn, age 25, arranged via Facebook to meet with Fanny Joe Howard, age 21. Howard was out drinking with her friend, Nikia Stillday, age 19. Stillday and Howard went to Schoenborn's residence, and all three of them sat in a car outside drinking Schoenborn's half-gallon bottle of vodka. Some time later, Stillday's friend Dylan Stately joined the group. When Stately arrived, Stillday was visibly intoxicated; she was stumbling and needed help walking. The four decided to drive around the neighborhood and at some point in the drive, Stillday had, according to Howard, " los[t] control of her body." Stillday " blacked out" and urinated on herself in the backseat of Howard's car.
Howard decided to take Stillday home to her house to sleep. When they arrived at Howard's house around 1:30 a.m., Stillday was passed out and the other three helped to carry her into the house, lay her on a loveseat in the living room, and cover her with a blanket. Schoenborn testified that when he arrived at Howard's house he was drunk; he vomited and then went to sleep on the couch in the living room. Howard and Stately retired to bedrooms in the back of the house. Some time after having gone to bed, Howard heard what she described as a " shuffling" and a " small thud" coming from the living room, and she got up to investigate.
Howard turned on the light in the living room and saw Schoenborn on top of Stillday " going up and down. He was just on top of [Stillday] grinding on her body." One of Stillday's legs was out of her pants and her shirt and bra were pushed up. She remained unconscious. When Howard yelled " What are you doing?" Schoenborn jumped off and exclaimed " She let me do it." Stately then ran into the living room and Schoenborn ran out of the house. Howard's grandmother, who lived in the house as well, called the police.
A sergeant from the Red Lake Police Department arrived at 2:00 a.m., and he testified that Stillday's " shirt was pushed up so her breasts were exposed. The pants legs, there was only one leg inside of a pants. So she had one leg that was completely out of her pants and underwear." The sergeant could not wake Stillday, despite pinching her arm and using sternum rubs--two techniques that are used to cause a reaction in response to pain. An EMT also failed to get Stillday to respond to " any painful or verbal stimuli." Stillday was transported to the Red Lake Hospital and was shortly thereafter transferred to a second hospital in Bemidji.
Stillday remained unconscious until approximately noon on May 7. When she awoke, she consented to a Sexual Assault Nurse Examination (SANE), though no DNA or forensic evidence was presented at trial. Stillday had no recollection of the previous night after the moment she had passed out in Howard's car. She testified that she never gave ...