8th Circuit decides N.D. case Monday, July 28, 2025
The U.S. Court of Appeals for the 8th Circuit decided United States v. Erik Vivier, U.S. Court of Appeals Case No: 24-2483.
Read the court's decision here: https://ecf.ca8.uscourts.gov/opndir/25/07/242483P.pdf
Justia Opinion Summary (https://law.justia.com/cases/federal/appellate-courts/ca8/24-2483/24-2483-2025-07-28.html?utm_source=summary-newsletters&utm_medium=email&utm_campaign=2025-07-29-u-s-court-of-appeals-for-the-eighth-circuit-dbb4815ea2&utm_content=text-case-title-5)
The case concerns Erik J. Vivier, who was accused of engaging in sexual acts with J.M., a 15-year-old girl, while she was allegedly incapacitated due to alcohol consumption. J.M. testified that she felt dizzy, nauseous, and not in control of her body after drinking, and described being invited into Vivier’s home, given more alcohol, and then sexually assaulted while in a spare bedroom. Vivier initially denied knowing J.M., then changed his account multiple times, eventually admitting to a sexual act but claiming he was not in the right state of mind. Other witnesses present at the home offered limited observations, and the government’s case relied heavily on J.M.’s testimony and Vivier’s inconsistent statements.
The United States District Court for the District of North Dakota presided over the trial, where a jury convicted Vivier of sexual abuse of an incapacitated victim and sexual abuse of a minor. Vivier moved for a judgment of acquittal on the charge of sexual abuse of an incapacitated victim, arguing insufficient evidence of J.M.’s incapacity and his knowledge thereof. The district court denied this motion. During trial, Vivier also objected to the testimony of an FBI agent who opined on Vivier’s truthfulness, arguing it was undisclosed expert testimony. The district court denied the motion to strike but issued a curative instruction, partially adopting Vivier’s proposed language.
On appeal, the United States Court of Appeals for the Eighth Circuit reviewed the denial of the motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the verdict. The court held that sufficient evidence supported the jury’s finding that J.M. was incapacitated and that Vivier knew of her incapacity. The court also found that, although the district court erred in its curative instruction regarding the agent’s opinion testimony, this did not affect Vivier’s substantial rights. The judgment of the district court was affirmed.