United States v. Cuthbert Rory Fox , 127 F. App'x 906 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2859
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of North Dakota.
Cuthbert Rory Flynn Fox, III, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 17, 2005
Filed: April 5, 2005
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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit
Judges.
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PER CURIAM.
Cuthbert Fox, III, appeals from his conviction and sentence on three counts of
aggravated sexual abuse by the use of force, see 18 U.S.C. §§ 1153, 2241(a)(1), and
three counts of abusive sexual contact (one count of which alleged the use of force),
see 18 U.S.C. §§ 1153, 2244(a)(1), (a)(2). We affirm.
Mr. Fox argues that the district court1 erred by refusing to sever the counts
against him, which would have resulted in three separate trials. Although Mr. Fox
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
moved to sever the counts before the trial began, he did not renew his motion once
the trial was underway or after it ended. As a result, he forfeited his right to appeal
the denial of the severance motion. See United States v. Worthon, 315 F.3d 980, 983
(8th Cir. 2003); United States v. Pelton, 578 F.2d 701, 711 (8th Cir. 1978), cert.
denied, 439 U.S. 964 (1978).
Mr. Fox also contends that the district court should have granted his motion for
a judgment of acquittal on the counts in which force was an element because the
government failed to offer sufficient evidence of force. As used in the statutes under
which Mr. Fox was convicted, force includes " 'the use of such physical force as is
sufficient to overcome, restrain, or injure a person,' " United States v. Allery, 139 F.3d
609, 611 (8th Cir. 1998), cert. denied, 524 U.S. 962 (1998) (quoting United States v.
Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990)). The first complaining witness in
this case testified that she had to push and struggle to free herself from Mr. Fox, who
"crawled on top of [her]" while attempting to have sexual intercourse. The next
complaining witness said that Mr. Fox grabbed her wrists and upper arms as she
struggled to flee from him; she fled but only after Mr. Fox had chased her around her
apartment. She testified that her arms were bruised as a result of the incident. The
third and final complaining witness recalled that Mr. Fox grabbed her, pushed her
onto his bed, forced one of her arms behind her back, and held her other arm. In the
face of such evidence, we cannot say that "no reasonable jury could have concluded
that the defendant was guilty beyond a reasonable doubt" of using force. United
States v. Jimenez-Villasenor, 270 F.3d 554, 558 (8th Cir. 2001); see Allery, 139 F.3d
at 611-12.
Affirmed.
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