Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 4, 2025 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-6112 (D.C. No. 5:21-CR-00151-D-1) JAMES M. LYNCH, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before PHILLIPS, MURPHY, and CARSON, Circuit Judges. _________________________________
To overturn a verdict for a factual mistake, we must believe that a trial’s
factfinder clearly misconstrued the evidence before it. Merely believing a different
factfinder could have judged witnesses’ credibility differently does not meet this
demanding standard.
After a bench trial the district court convicted Defendant James Lynch of
indecent exposure. In so doing, the judge weighed the testimony of the correctional
After examining the briefs and appellate record, this panel has determined *
unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 2
officer to whom Defendant allegedly exposed himself against Defendant’s contrary
testimony and found the guard’s testimony more credible. Defendant argues the trial
judge erred in so doing. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Defendant currently serves a life sentence for murder and other crimes. He
previously worked as prison orderly and left his cell for his job duties. A
correctional officer (“CO”) supervised him as he performed his tasks. Defendant
encountered the CO in her office one day while he was on duty.
The parties disagree about what happened next. The CO testified that she
looked up from her computer to see Defendant’s pants “[j]ust below his penis,” and
that he was “masturbating.” He stood “[a]pproximately 5 to 7 feet” in front of her as
he did so. She immediately called for help, and another officer removed Defendant.
The CO wrote in her subsequent incident report that Defendant’s penis had been
“fully exposed and erect.” Defendant denied masturbating. He admitted that he went
into the CO’s office and had “part of [his] hands in [his] pants” when he did so, but
testified that a medical issue prevented him from getting an erection. When
questioned as to why his prison medical records did not state he had such an issue, he
responded that the government had “read[] the wrong medical records.” He also
argued that he had “no motive whatsoever to do this knowing that at some point in
the near future he was going to get out,” referencing an upcoming parole hearing.
2 Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 3
A grand jury indicted Defendant for indecent exposure under 18 U.S.C.
§ 13(a). 1 Defendant opted for a bench trial. The presiding judge ruled for the
government. He found “no credible evidence was presented suggesting [the CO] had
a motive to fabricate the report she made regarding the defendant’s indecent
exposure,” and otherwise found her a credible witness. He also noted that “the
offense set forth in the Indictment may be committed even if the offender is unable to
achieve an erection,” and that the government proved all the statutory elements
beyond a reasonable doubt. The district court sentenced Defendant to eighteen
months’ imprisonment served consecutively with his life sentence and registration as
a sex offender.
II.
Defendant argues the district court erred in finding the correctional officer’s
testimony credible. He points out that she “did not remember any questions asked of
her by [Defendant]” prior to him allegedly exposing himself, and “she testified that it
was the left hand being used to masturbate.” But the government used a “report that
stated in 2007 [Defendant] was observed, stroking his erect penis in his right hand”
1 This statute is the Assimilative Crimes Act, and it forbids acts within federal enclaves in the several states that would be crimes if committed on state land. United States v. Harris, 10 F.4th 1005, 1010 (10th Cir. 2021). Where Congress has not created a federal crime for the same or similar conduct, the Assimilative Crime Act permits federal prosecutors to fill the gap by prosecuting offenders to the same extent state law allows. United States v. Christie, 717 F.3d 1156, 1170 (10th Cir. 2013). Defendant committed the alleged acts in a federal prison in Oklahoma, and the grand jury indicted him for indecent exposure to the extent Oklahoma law forbids it under 21 Okla. Stat. tit. 21, § 1021(A)(1). 3 Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 4
to support its case. He argues that a “jury, had there been one, would have been
reminded to use their common sense as it relates to handedness and masturbating.”
He seems to argue that his prior masturbatory acts suggest he would masturbate only
with his right hand. That, combined with Defendant’s testimony regarding his health
issues preventing him getting an erection and the correctional officer’s hazy memory
of her conversation with Defendant, suggest the district court could not plausibly
credit the correctional officer’s testimony. As the prosecution’s case relied almost
exclusively on that testimony, Defendant argues the government failed to prove the
crime’s elements beyond a reasonable doubt.
We overturn a factfinder’s findings only for clear error. F.T.C. v. Chapman,
714 F.3d 1211, 1215 (10th Cir. 2013) (quoting Ryan v. American Nat. Energy Corp.,
557 F.3d 1152, 1157 (10th Cir. 2009)). Therefore, “[i]f the district court’s account of
the evidence is plausible in light of the record viewed in its entirety, [we] may not
reverse it even though convinced that[,] had [we] been sitting as the trier of fact, [we]
would have weighed the evidence differently.” United States v. Cortes-Gomez, 926
F.3d 699, 708 (10th Cir. 2019) (quoting Anderson v. Bessemer City, 470 U.S. 564,
573–74 (1985)). Correspondingly, “[w]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.
(quoting Anderson, 470 U.S. at 573–74).
Defendant fails to meet this burden for several reasons. First, he cannot
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Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 4, 2025 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-6112 (D.C. No. 5:21-CR-00151-D-1) JAMES M. LYNCH, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before PHILLIPS, MURPHY, and CARSON, Circuit Judges. _________________________________
To overturn a verdict for a factual mistake, we must believe that a trial’s
factfinder clearly misconstrued the evidence before it. Merely believing a different
factfinder could have judged witnesses’ credibility differently does not meet this
demanding standard.
After a bench trial the district court convicted Defendant James Lynch of
indecent exposure. In so doing, the judge weighed the testimony of the correctional
After examining the briefs and appellate record, this panel has determined *
unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 2
officer to whom Defendant allegedly exposed himself against Defendant’s contrary
testimony and found the guard’s testimony more credible. Defendant argues the trial
judge erred in so doing. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Defendant currently serves a life sentence for murder and other crimes. He
previously worked as prison orderly and left his cell for his job duties. A
correctional officer (“CO”) supervised him as he performed his tasks. Defendant
encountered the CO in her office one day while he was on duty.
The parties disagree about what happened next. The CO testified that she
looked up from her computer to see Defendant’s pants “[j]ust below his penis,” and
that he was “masturbating.” He stood “[a]pproximately 5 to 7 feet” in front of her as
he did so. She immediately called for help, and another officer removed Defendant.
The CO wrote in her subsequent incident report that Defendant’s penis had been
“fully exposed and erect.” Defendant denied masturbating. He admitted that he went
into the CO’s office and had “part of [his] hands in [his] pants” when he did so, but
testified that a medical issue prevented him from getting an erection. When
questioned as to why his prison medical records did not state he had such an issue, he
responded that the government had “read[] the wrong medical records.” He also
argued that he had “no motive whatsoever to do this knowing that at some point in
the near future he was going to get out,” referencing an upcoming parole hearing.
2 Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 3
A grand jury indicted Defendant for indecent exposure under 18 U.S.C.
§ 13(a). 1 Defendant opted for a bench trial. The presiding judge ruled for the
government. He found “no credible evidence was presented suggesting [the CO] had
a motive to fabricate the report she made regarding the defendant’s indecent
exposure,” and otherwise found her a credible witness. He also noted that “the
offense set forth in the Indictment may be committed even if the offender is unable to
achieve an erection,” and that the government proved all the statutory elements
beyond a reasonable doubt. The district court sentenced Defendant to eighteen
months’ imprisonment served consecutively with his life sentence and registration as
a sex offender.
II.
Defendant argues the district court erred in finding the correctional officer’s
testimony credible. He points out that she “did not remember any questions asked of
her by [Defendant]” prior to him allegedly exposing himself, and “she testified that it
was the left hand being used to masturbate.” But the government used a “report that
stated in 2007 [Defendant] was observed, stroking his erect penis in his right hand”
1 This statute is the Assimilative Crimes Act, and it forbids acts within federal enclaves in the several states that would be crimes if committed on state land. United States v. Harris, 10 F.4th 1005, 1010 (10th Cir. 2021). Where Congress has not created a federal crime for the same or similar conduct, the Assimilative Crime Act permits federal prosecutors to fill the gap by prosecuting offenders to the same extent state law allows. United States v. Christie, 717 F.3d 1156, 1170 (10th Cir. 2013). Defendant committed the alleged acts in a federal prison in Oklahoma, and the grand jury indicted him for indecent exposure to the extent Oklahoma law forbids it under 21 Okla. Stat. tit. 21, § 1021(A)(1). 3 Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 4
to support its case. He argues that a “jury, had there been one, would have been
reminded to use their common sense as it relates to handedness and masturbating.”
He seems to argue that his prior masturbatory acts suggest he would masturbate only
with his right hand. That, combined with Defendant’s testimony regarding his health
issues preventing him getting an erection and the correctional officer’s hazy memory
of her conversation with Defendant, suggest the district court could not plausibly
credit the correctional officer’s testimony. As the prosecution’s case relied almost
exclusively on that testimony, Defendant argues the government failed to prove the
crime’s elements beyond a reasonable doubt.
We overturn a factfinder’s findings only for clear error. F.T.C. v. Chapman,
714 F.3d 1211, 1215 (10th Cir. 2013) (quoting Ryan v. American Nat. Energy Corp.,
557 F.3d 1152, 1157 (10th Cir. 2009)). Therefore, “[i]f the district court’s account of
the evidence is plausible in light of the record viewed in its entirety, [we] may not
reverse it even though convinced that[,] had [we] been sitting as the trier of fact, [we]
would have weighed the evidence differently.” United States v. Cortes-Gomez, 926
F.3d 699, 708 (10th Cir. 2019) (quoting Anderson v. Bessemer City, 470 U.S. 564,
573–74 (1985)). Correspondingly, “[w]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.
(quoting Anderson, 470 U.S. at 573–74).
Defendant fails to meet this burden for several reasons. First, he cannot
reasonably argue that a “jury, had there been one, would have been reminded to use
their common sense as it relates to handedness and masturbating” because he
4 Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 5
voluntarily waived his right to a jury trial. Defendants cannot obtain reversal based
on the benefits a jury might have provided if they choose not to have one. United
States v. Mitchell, 633 F.3d 997, 1001 (10th Cir. 2011) (citing United States v.
Mezzanatto, 513 U.S. 196, 201 (1995)).
Second, Defendant premises his entire argument upon undermining the
correctional officer’s credibility as a witness. But credibility determinations are the
factfinder’s province, and are “virtually unreviewable on appeal.” United States v.
Virgen–Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003) (quoting United States v.
Jones, 160 F.3d 473, 480 (8th Cir.1998)). We reverse credibility determinations only
if a witness’s testimony is “unbelievable on its face” and asserts “facts that the
witness physically could not have possibly observed or events that could not have
occurred under the laws of nature.’” Id. (quoting United States v. Mendez–Zamora,
296 F.3d 1013, 1018 (10th Cir. 2002)). Not so here, as Defendant merely gives
reasons by which the trial judge could have discounted her testimony in favor of his.
He comes closest to meeting the relevant standard when he argues the correctional
officer’s testimony cannot be correct because medical issues prevented him from
getting the erection she alleged he had. But only Defendant’s own testimony
supports this claim, and he did not identify specific medical records that corroborated
it when the government questioned him about it. Nothing in the correctional officer’s
testimony was facially implausible, and the trial judge could reasonably have
discounted Defendant’s contradicting testimony in favor of hers.
5 Appellate Case: 23-6112 Document: 56-1 Date Filed: 04/04/2025 Page: 6
AFFIRMED.
Entered for the Court
Joel M. Carson III Circuit Judge