Submitted: May 16, 2018
from United States District Court for the District of South
Dakota - Rapid City
BENTON, KELLY, and STRAS, Circuit Judges.
BENTON, CIRCUIT JUDGE.
found Darrell E. Janis guilty of two counts of abusive sexual
contact-one under 18 U.S.C. § 2244(a)(1) and the other
under § 2244(a)(3). Janis appeals his conviction,
raising a jury instruction issue and an evidentiary issue.
Having jurisdiction under 28 U.S.C. § 1291, this court
proposed a jury instruction he claims would have
"inform[ed] the jury how it should deal with inferences
arising from the evidence that are equally reasonable."
The proposed instruction said:
Because of the presumption of innocence, if after considering
the evidence in the light most favorable to the prosecution
two inferences are equally reasonable, then the presumption
of innocence has not been overcome. If the prosecution's
evidence is such that a reasonable jury could find the
accused to be innocent, then by definition there is
reasonable doubt of guilt. When an equal or nearly equal
theory of guilty and a theory of innocence is supported by
the evidence viewed in the light most favorable to the
respective verdict, you, as a reasonable jury, must
necessarily entertain a reasonable double [sic] and find the
accused not guilty.
district court rejected the instruction:
It concerned me; it's almost a civil instruction on
balancing, very much balancing on proof beyond a reasonable
doubt and the presumption of innocence, and so I am going to
reject that instruction. . . . I think that's a confusing
instruction for jurors. If two inferences are equally
reasonable, I mean, the presumption of innocence is contrary
court analyzes "whether the instructions, taken as a
whole and viewed in light of the evidence and applicable law,
fairly and adequately submitted the issues in the case to the
jury." United States v. Benton, 890 F.3d 697,
714 (8th Cir. 2018) (citation and internal quotation marks
omitted). "A challenge to a jury instruction is reviewed
for an abuse of discretion." United States v.
Stanley, 891 F.3d 735, 739 (8th Cir. 2018) (citation
omitted). But "if a party fails to object at trial, this
court reviews only for plain error." Id.
(citation omitted); see also United States v.
Kirkie, 261 F.3d 761, 770 (8th Cir. 2001) ("In
order to preserve the issue of whether a particular jury
instruction should or should not have been issued, an
attorney must make a timely objection, explaining the grounds
upon which the instruction should or should not
did not object to the district court's refusal to give
the proposed instruction. Plain-error review applies. See
United States v. Tobacco, 428 F.3d 1148, 1150 (8th Cir.
2005) ("Tobacco asserts the issue is preserved simply
because he submitted a proposed jury instruction which the
district court did not include in its proposed jury
instructions prior to trial. This assertion is without
merit."). "Under plain error, there must be an
'error' that is 'plain' and that 'affects
substantial rights.' This court has the discretion to
decide whether to correct the forfeited error, and does so
only when the error seriously affects the fairness, integrity
or public reputation of judicial proceedings."
Stanley, 891 F.3d at 739 (internal citations and
quotation marks omitted).
to Janis, "the district court's denial of his
proposed instruction on inferences . . . allowed the jury to
speculate about his guilt if it found competing inferences of
equal evidential weight existed." He focuses on two
decisions from this court. One says: "Where the
government's evidence is equally as strong to infer
innocence of the crime charged, as it is to infer guilt, we
are not dealing in the realm of credibility, but legal
sufficiency and a court has the duty to direct an
acquittal." United States v. Jones, 418 F.2d
818, 826 (8th Cir. 1969). The other says:
It is true that the government is entitled to the benefit of
all reasonable inferences to be drawn from the evidence.
However, where the government's evidence is equally
strong to infer innocence of the crime charged as it is to
infer guilt, the verdict must be ...