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Young v. Williams

United States District Court, D. Nevada

May 13, 2019

DANNY ANDREW YOUNG, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         This habeas matter under 28 U.S.C. § 2254 currently is pending before the Court for a decision on the merits on the claims presented by petitioner Danny Young. Supplementation of the briefing and record are needed as to Grounds 1(b) and 3.

         Ground 1(b)

         Ground 1(b) includes a claim that the evidence was insufficient to sustain Young's conviction for attempted sexual assault because he could not be convicted of attempted sexual assault, which requires that the attempt be unsuccessful, because he successfully achieved penetration. (ECF No. 23, at 11-12; ECF No. 62, at 14-16.)

         Heading into the trial, the second amended information alleged that Young committed attempted sexual assault “by lifting the buttocks of said [A.W.] in an effort to place his penis into her vaginal opening, against her will.” (ECF No. 25-2, at 3.)

         The trial evidence reflected, inter alia, that Young was A.W.'s biological father, but they had met only a handful of times. In October 2004, the 16-year-old A.W. came to Las Vegas to spend some time with her father. After A.W. had gone to sleep on the sofa bed on her second night in town, Young got into bed behind her in the middle of the night while she was on her side and began grinding against her “booty” with his penis and kissing her back, while she feigned still being asleep. (ECF No. 25-6, at 28-32, 43-45, 63, 65-70, 92-94 156-58 & 160-61.)[1]

         Young was behind A.W. for only a relatively short interval, less than five minutes. During this interval, Young attempted to enter A.W.'s vagina with his penis from behind, but he was not successful. (Id., at 45 & 94-95.)

         A.W. testified that Young then took her panties off her and turned her onto her back, or in her terms “flipped me over, ” meaning moving her from laying on her side to laying on her back. At one point in her testimony, A.W. testified that when Young did so “he tried to wake - well, I don't know if he knew I was woke or he was trying to get me woke.” At another point, she testified that “he didn't succeed [at entering me from behind] so he turned me over.” (Id., at 45 & 94-97.)

         Young initially still was unable to enter A.W. successfully after he turned her onto her back. A.W. testified that, thereafter:

Q So other than not kissing, did he do anything else with your body during that time?
A At once he put - he lifted my buttocks, lifted it up to see if it will go in clear - I mean, he was trying to get it in, so that was it.
Q Okay. Did it go in at that time?
A Yes, it ...

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