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Taylor v. Walking Eagle Thunder11/22/2000
this case, "there is conflicting evidence, this court is not free to weigh the evidence, and all inferences must be drawn in favor of the prevailing party." Smith v. Timm, 96 Nev. 197, 202, 606 P.2d 530, 532 (1980).
Despite the conflicting evidence noted by appellant, there was evidence presented in the form of Naomi's testimony that appellant did in fact engage in sexual activity with her and that she did not consent. The victim testified that she did not try to get away during the incident because she was scared, that she told appellant "no" in response to his invitation to have oral sex, and that she did not move or otherwise participate during intercourse. Drawing all inferences in the victim's favor, we conclude that a reasonable mind could accept this evidence to support the conclusion that appellant engaged in sexual activity with the victim without her consent. Because there was substantial evidence from the victim's testimony that she was an unwilling participant, we need not decide the issue of whether her consent was presumed. Accordingly, we affirm the jury verdict.
IV. Conclusion
Having reviewed all of appellant's contentions and concluded that they lack merit, we affirm the judgment of the district court.
SHEARING and AGOSTI, JJ., concur.
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