evidence from which a rational juror could conclude that the victim was “physically incapable of declining participation in, or communicating unwillingness to engage in, th[e] sexual act.” We agree with the reasoning of the Eighth Circuit that “[a] reasonable jury may conclude that a person who is asleep when a sexual act begins is physically unable to decline participation in that act.” United States v. Wilcox, 487 F.3d 1163, 1169 (8th Cir.2007) (citing United States v. Barrett, 937 F.2d 1346, 1347-48 (8th Cir.1991)). If the victim testifies that she woke up while the sexual act was ongoing, this “provide[s] sufficient evidence for the jury to conclude that penetration occurred while she was asleep.” Id.; see also United States v. Smith, 606 F.3d 1270, 1281 (10th Cir.2010) (<HOLDING>); cf. United States v. Peters, 277 F.3d 963,
holding that evidence was sufficient where inter alia the victim woke up to find the defendant on top of her and engaged in sex holding inter alia that common law claims were preempted holding that the trial court properly excluded evidence that other persons had a motive to kill the victims because inter alia such evidence was speculative holding that a victim impact aggravator was not unconstitutionally vague because it directed the jury to consider inter alia the effect of the crime on the victims family holding that the witnesss prior statement that the victim was lying flat on his back when he was shot impermissibly contradicted the witnesss trial testimony that the victim was on top of another individual at that time