                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-2399
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           * Appeal from the United States
      v.                                   * District Court for the
                                           * District of South Dakota.
Jason Adam Pumpkin Seed,                   *
                                           *
             Appellant.                    *

                                 ________________

                            Submitted: February 10, 2009
                                Filed: July 16, 2009
                                ________________

Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

      A jury found Jason Adam Pumpkin Seed guilty of the sole count of an
indictment charging him with aggravated sexual abuse and attempted aggravated
sexual abuse, violations of 18 U.S.C. §§ 2241(a) and 1153. The district court1
sentenced him to 200 months’ imprisonment. Pumpkin Seed now appeals several
adverse rulings, including: (1) the denial of his motion to dismiss the indictment; (2)
the exclusion of evidence under Federal Rule of Evidence 412; and (3) the inclusion

      1
        The Honorable Andrew W. Bogue, now deceased, United States District Judge
for the District of South Dakota.
of a jury instruction on attempted aggravated sexual abuse. For the reasons discussed
below, we affirm.

I.    BACKGROUND

      On the evening of September 29, 2006, Jason Adam Pumpkin Seed, Heather
Red Cloud and others met at Red Cloud’s aunt’s home in Wounded Knee, South
Dakota, for a social gathering. Around 10:00 p.m., Pumpkin Seed and Red Cloud left
the gathering, though not together. From this point their accounts of the evening’s
events differ significantly.

      According to Red Cloud, after the two left the gathering, Pumpkin Seed
grabbed and attacked her behind her aunt’s home. Red Cloud attempted to flee his
grasp by removing her jacket, but Pumpkin Seed forced her to her knees and
eventually onto the ground. While on the ground, Pumpkin Seed covered Red
Cloud’s mouth with his hand, pulled down his pants, forced her jeans down to her
ankles, and began to have vaginal intercourse with her. During this struggle, Red
Cloud was eventually able to scream for help and attract the attention of three boys
who were walking along a nearby bike path. Two of the boys approached and pushed
Pumpkin Seed off of Red Cloud. Red Cloud, now free, pulled her jeans back up,
began crying hysterically, hit Pumpkin Seed, and then ran back into her aunt’s home.

       According to Pumpkin Seed, after the two left the gathering, Red Cloud took
Pumpkin Seed by the arm and they began kissing. Red Cloud took off her jacket and
the two embraced on the ground, continuing to kiss. Pumpkin Seed unbuttoned his
pants and her jeans, but he did not engage in any additional sexual advances after Red
Cloud asked him not to go any further. Instead, the two continued to kiss until Red
Cloud observed three boys approaching. Red Cloud got nervous and yelled “stop,”
prompting Pumpkin Seed to stand up. The boys then came over, recognizing Pumpkin
Seed and Red Cloud, and Pumpkin Seed told them to go away because he was “trying


                                         -2-
to get some.” Red Cloud began to curse at Pumpkin Seed, claiming that he had raped
her. Pumpkin Seed then called Red Cloud a “minor bunner”2 in front of the boys, and
Red Cloud responded by hitting him and becoming hysterical. Thereafter, Richard
Little Moon came out of Red Cloud’s aunt’s home, observed the argument, ushered
Red Cloud into the home, and told Pumpkin Seed to leave.

       Once inside, Red Cloud told her aunt that Pumpkin Seed had raped her. Red
Cloud’s aunt called the police, and Red Cloud was transported to a hospital. Bethany
Berry, a nurse midwife, examined Red Cloud and administered a rape kit. Berry
observed a number of injuries on Red Cloud, including abrasions to her back and left
knee, a cut lip, and scrapes and scratches on her neck and elbow, but no apparent
injuries to her vaginal area. Berry also noticed grass stains on Red Cloud’s jeans, dirt
on the back of her shirt, and grass and debris in her hair. When Berry asked Red
Cloud whether she had consensual intercourse within the last seventy-two hours, Red
Cloud answered “no.” Berry then took vaginal and cervical swabs and sent the
samples to the South Dakota State Forensics Laboratory, which subsequently found
the presence of semen and foreign pubic hair. The South Dakota laboratory forwarded
the samples to the FBI, along with DNA samples from Pumpkin Seed, for donor
identification.

       During the evening of the alleged rape, Bureau of Indian Affairs Special Agent
Carl Martinez interviewed Red Cloud about the incident. Red Cloud told Martinez
that Pumpkin Seed had raped her and had ejaculated, either in her or on her. On May
22, 2007, Martinez presented the results of his investigation into the rape allegations
to a federal grand jury. He recounted his interview with Red Cloud, including her
statement that Pumpkin Seed had ejaculated in her or on her, and he discussed the
South Dakota laboratory’s findings of semen and foreign pubic hair. The grand jury

      2
       At trial, Pumpkin Seed explained that a “minor bunner” is a derogatory term
for a woman who has a proclivity for engaging in sexual relations with adolescent
males.

                                          -3-
returned a one-count indictment charging Pumpkin Seed with aggravated sexual abuse
and attempted aggravated sexual abuse. Pumpkin Seed pled not guilty.

       In August 2007, the Government received the FBI laboratory’s results. The FBI
determined that Pumpkin Seed was not the source of either the semen or foreign pubic
hair samples from the rape kit and that the two samples did not share a common
donor. Thereafter, Red Cloud admitted to having consensual sexual relations with
another man a day and a half before the incident. Red Cloud explained that she had
lied about her recent sexual history during the rape kit interview to protect the identity
of her married sexual partner.3 The Government informed Pumpkin Seed’s counsel
of this information.

       Before trial, Pumpkin Seed filed a motion under Federal Rule of Evidence 412
to admit evidence of Red Cloud’s sexual history, of past sexual relations between Red
Cloud and him, of the semen, foreign pubic hair and extragenital injuries discovered
during Red Cloud’s rape kit procedure, and of Red Cloud’s false answer to the rape-
kit interview question concerning her recent sexual activity. The district court held
an in camera hearing on the motion as required by Rule 412(c)(2) and granted the
motion in part and denied it in part. The district court granted the motion as to any
evidence of specific past sexual relations between Red Cloud and Pumpkin Seed
under Rule 412(b)(1)(B), but it denied the motion as to all of the other proffered
evidence, unless the Government opened the door to any of those subjects at trial.
Pumpkin Seed also moved to dismiss the indictment, claiming that it was secured by
Special Agent Martinez’s testimony, which misled the grand jury into believing that
the semen and pubic hair discovered on the rape kit samples belonged to Pumpkin


      3
       Red Cloud’s admission does not account for the fact that the semen and pubic
hair samples did not share a common donor (i.e. Red Cloud’s married paramour), and
nothing in the record resolves this apparent discrepancy. The circumstances
surrounding this third man are of no moment here, however, because none of Pumpkin
Seed’s arguments depend on the unknown second donor.

                                           -4-
Seed. The district court denied the motion to dismiss the indictment, finding that
Martinez’s testimony accurately communicated to the grand jury all of the evidence
then known.

       Before the case was submitted to the jury, Pumpkin Seed objected to the
submission of a jury instruction defining attempted aggravated sexual abuse.
Pumpkin Seed argued that the Government’s evidence supported only an instruction
for the completed offense of aggravated sexual abuse, not an attempt to commit the
offense. The court overruled the objection. The jury returned a general verdict of
guilty that did not distinguish between aggravated sexual abuse and attempted
aggravated sexual abuse.

II.   DISCUSSION

      A.     Motion to Dismiss the Indictment

       Pumpkin Seed argues that the district court should have granted his motion to
dismiss the indictment because Special Agent Martinez’s grand jury testimony—that
Red Cloud told him in an interview that Pumpkin Seed ejaculated in her or on her and
that the South Dakota laboratory found the presence of semen and foreign pubic hair
on the rape-kit samples—purposefully deceived the grand jury into believing that
Pumpkin Seed was the source of the semen and pubic hair. According to Pumpkin
Seed, this testimony improperly influenced the grand jury’s decision to indict.

       In reviewing the district court’s denial of a motion to dismiss the indictment for
alleged government misconduct, “we review the district court’s factual findings for
clear error and its legal conclusions de novo.” United States v. Nieman, 520 F.3d 834,
838 (8th Cir. 2008); see also United States v. Kouba, 822 F.2d 768, 774 (8th Cir.
1987) (reviewing for clear error the district court’s denial of a motion to dismiss based
on alleged prosecutorial misconduct). Here, we find no reversible error in the district

                                          -5-
court’s refusal to dismiss the indictment, because “even assuming that there were
errors in the charging decision that may have followed from the conduct of the
prosecution, the petit jury’s guilty verdict rendered those errors harmless.” United
States v. Wilson, 565 F.3d 1059, 1070 (8th Cir. 2009) (alterations omitted) (quoting
Kouba, 822 F.2d at 774); see United States v. Taken Alive, 513 F.3d 899, 903-04 (8th
Cir. 2008) (holding that a petit jury’s guilty verdict renders grand jury error harmless
because it results in no prejudice to the defendant).4

      B.     Exclusion of Evidence of Red Cloud’s Past Sexual Behavior Under
             Federal Rule of Evidence 412

       Pumpkin Seed also appeals the district court’s exclusion of certain evidence
under Federal Rule of Evidence 412. First, Pumpkin Seed argues that the district
court abused its discretion under Rule 412(b)(1)(A) by excluding evidence of specific
instances of Red Cloud’s sexual behavior, which he offered to prove that one of her
alleged consensual sexual partners—not Pumpkin Seed—was the source of the
injuries to her back, knee, lip, neck and elbow. Second, he contends that the district
court improperly excluded evidence of Red Cloud’s consensual sexual relationship
with a married man and her false answer to the rape-kit interview question concerning
her recent sexual activity, which she allegedly gave to conceal that relationship.
According to Pumpkin Seed, this evidence was admissible under Rule 412(b)(1)(C)
to prove that Red Cloud had a motive to falsely accuse Pumpkin Seed of rape because
its exclusion would violate his constitutional rights under the Fifth and Sixth
Amendments to the United States Constitution.


      4
       Moreover, we agree with the district court’s conclusion that Special Agent
Martinez’s testimony was not misleading based on the then-available evidence. The
FBI laboratory results showing that Pumpkin Seed was not the source of the rape-kit
semen and pubic hair were not available until after the grand jury returned the
indictment. Special Agent Martinez did not testify that the semen and pubic hair
belonged to Pumpkin Seed.

                                          -6-
      Federal Rule of Evidence 412, the federal rape-shield rule, generally prohibits
the admission of evidence concerning the alleged victim’s past sexual behavior or
alleged sexual predisposition, subject to certain enumerated exceptions. The rule
provides, in relevant part:

        (a) Evidence generally inadmissible.—The following evidence is not
      admissible in any civil or criminal proceeding involving alleged sexual
      misconduct except as provided in subdivisions (b) and (c):
           (1) Evidence offered to prove that any alleged victim engaged in
         other sexual behavior.
           (2) Evidence offered to prove any alleged victim’s sexual
         predisposition.
         (b) Exceptions.—
            (1) In a criminal case, the following evidence is admissible, if
         otherwise admissible under these rules:
                (A) evidence of specific instances of sexual behavior by the
             alleged victim offered to prove that a person other than the
             accused was the source of semen, injury or other physical
             evidence;
               . . . and
               (C) evidence the exclusion of which would violate the
             constitutional rights of the defendant.

       “We review a district court’s interpretation and application of the rules of
evidence de novo and its evidentiary rulings for abuse of discretion.” United States
v. Street, 531 F.3d 703, 708 (8th Cir. 2008). However, we review evidentiary rulings
de novo when they implicate constitutional rights. United States v. White, 557 F.3d
855, 857 (8th Cir. 2009).

       We turn first to Pumpkin Seed’s argument under Rule 412(b)(1)(A). The
district court excluded Pumpkin Seed’s evidence of Red Cloud’s past sexual behavior

                                         -7-
offered to explain the source of her extragenital injuries. In doing so, the court
concluded that even if the Government opened the door to the subject at trial by
eliciting testimony concerning Red Cloud’s injuries, Pumpkin Seed’s proffered
evidence was not “otherwise admissible” under the Federal Rules of
Evidence—specifically, under Rule 403—and, therefore, was not subject to the Rule
412(b)(1)(A) exception. See Fed. R. Evid. 412(b)(1). The district court found that the
admission of this evidence would violate Rule 403 because “the argument that
consensual sex with a third person may have caused the injuries to the victim is too
weak to justify the admission of this highly prejudicial evidence.” See Fed. R. Evid.
403 (“[Relevant] evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .”).

       In reviewing a district court’s evidentiary ruling under Rule 403, we accord
“great deference [to] the district court’s balancing of the probative value and
prejudicial impact of the evidence.” United States v. Ruiz, 412 F.3d 871, 881 (8th Cir.
2005). Here, reversal is inappropriate because the record demonstrates that the district
court engaged in the required balancing process and properly found that admitting
specific instances of Red Cloud’s consensual sexual behavior to explain her physical
injuries would violate Rule 403. First, Pumpkin Seed did not make any offer of proof
concerning the circumstances of Red Cloud’s past sexual activity from which the
district court could assess the likelihood of her injuries being caused by her
consensual sexual activity. See United States v. Boyles, 57 F.3d 535, 548 (7th Cir.
1995) (finding no error in the district court’s exclusion of evidence of an alleged rape
victim’s past sexual encounters under Rule 412 where the defendant failed to make
a proper offer of proof). Absent such an offer of proof, we cannot say that the district
court abused its discretion in determining that the type and extent of physical injuries
present on Red Cloud are generally inconsistent with consensual sexual intercourse,
thereby suggesting that the disputed evidence concerning Red Cloud’s consensual
relationships has little or no probative value in providing an alternate source for her
injuries. Cf. Hubbeling v. United States, 288 F.3d 363, 367 (8th Cir. 2002) (rejecting

                                          -8-
defendant’s argument under Rule 412(b)(1)(A) and noting that previous acts of
consensual sexual intercourse between an adolescent male and the alleged victim did
not “provide[] an alternate explanation for the extensive injuries discovered during
[the alleged victim’s] medical examinations”). Second, the probative value of this
evidence is substantially outweighed by the high risk of unfair prejudice and
confusion of the issues posed by admitting evidence that Red Cloud was involved in
at least two sexual encounters with different men, one of whom was married, within
days of the alleged rape. See United States v. One Feather, 702 F.2d 736, 739 (8th
Cir. 1983) (“The policy of Rule 412, to guard against unwarranted intrusion into the
victim’s private life, may be taken into account in determining the amount of unfair
prejudice under Rule 403.”); see also United States v. Tail, 459 F.3d 854, 861 (8th
Cir. 2006) (“Admission of this evidence [under Rule 412] would have triggered
mini-trials concerning allegations unrelated to Tail’s case, and thus increased the
danger of jury confusion and speculation.”); Fed. R. Evid. 412 advisory committee’s
note (“The rule aims to safeguard the alleged victim against the invasion of privacy,
potential embarrassment and sexual stereotyping that is associated with public
disclosure of intimate sexual details and the infusion of sexual innuendo into the
factfinding process.”). Thus, we conclude that the district court did not abuse its
discretion by excluding this evidence under Rule 403 and, consequently, Rule
412(b)(1)(A).5




      5
        Pumpkin Seed has abandoned any argument under Rule 412(b)(1)(A)
concerning the exclusion of evidence of Red Cloud’s prior sexual behavior based on
the source of the semen and the foreign pubic hair found on the rape-kit samples by
failing to argue the issue in his opening brief to this court. See United States v.
Barnum, 564 F.3d 964, 968 n.4 (8th Cir. 2009). Such an argument would have been
unsuccessful in any event. The Government never broached the topic of the semen
and foreign pubic hair found on the rape-kit samples; thus the proverbial evidentiary
door remained closed to evidence showing the source of the semen and pubic hair.
See United States v. White Buffalo, 84 F.3d 1052, 1054 (8th Cir. 1996).

                                         -9-
       We turn next to Pumpkin Seed’s argument under Rule 412(b)(1)(C). Pumpkin
Seed contends that the district court erred by excluding evidence purportedly showing
that Red Cloud had a motive to falsely accuse him of rape—namely, evidence of Red
Cloud’s consensual sexual relationship with a married man and her false answer to the
rape-kit interview question concerning her recent sexual activity. In his supplemental
briefing in support of his Rule 412 motion before the district court, Pumpkin Seed
explained that Red Cloud “was protecting the donor of semen in her body because he
was married, and she suspected that she may have been pregnant by him and it would
be embarrassing to her and life-destroying to the suspected father.” In his opening
brief before this court, Pumpkin Seed expanded his theory, postulating that “Red
Cloud was motivated to make this false accusation to provide herself with an
explanation if she ended up pregnant or developed a venereal disease from her two
secret liaisons with the true donors of the semen and pubic hair.” (Emphasis added.)
Pumpkin Seed argues that the district court should have admitted this evidence under
Rule 412(b)(1)(C) because its exclusion violates his rights under the Fifth
Amendment’s Due Process Clause and the Sixth Amendment’s Confrontation Clause.

       In determining the admissibility of a victim’s other sexual behavior under Rule
412(b)(1)(C), we start with the premise that defendants have a constitutional right
under the Fifth and Sixth Amendments to introduce evidence in their defense. United
States v. Bear Stops, 997 F.2d 451, 454 (8th Cir. 1993); see also United States v.
Elbert, 561 F.3d 771, 776 (8th Cir. 2009). The Supreme Court, however, has
recognized that this constitutional right “is not without limitation.” Michigan v.
Lucas, 500 U.S. 145, 149 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)).
“The right may, in appropriate cases, bow to accommodate other legitimate interests
in the criminal trial process.” Id. Such interests include concerns about “harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Id. (quoting Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986)). Such limitations on a defendant’s right to introduce evidence
are permissible so long as they are not “arbitrary or disproportionate to the purposes

                                        -10-
they are designed to serve.” United States v. Bordeaux, 400 F.3d 548, 558 (8th Cir.
2005) (quoting Lucas, 500 U.S. at 151). Thus, the key inquiry here is whether the
district court’s exclusion of evidence concerning Red Cloud’s consensual sexual
relationship with a married man and her attempt to conceal that relationship by lying
about her recent sexual activity during the rape-kit interview was arbitrary or
disproportionate to the purposes that its exclusion was designed to serve. See id.

       First, we conclude that the district court’s exclusion of this evidence was not
arbitrary. There were numerous purposes for excluding this evidence under Rule 412.
The exclusion saved Red Cloud from the harassment and embarrassment concomitant
with discussing the details of one’s past sexual activity, see id., and thwarted an
“unwarranted intrusion into [her] private life—[an effect] that Rule 412 was designed
to prevent,” see Bear Stops, 997 F.2d at 455. The exclusion of this evidence also
avoided possible confusion of the issues by the jury, see Tail, 459 F.3d at 861, and
prevented a thinly-veiled attack on Red Cloud’s general credibility, see United States
v. Withorn, 204 F.3d 790, 795 (8th Cir. 2000) (“[I]mpeaching the victim’s truthfulness
and showing her capability to fabricate a story ‘are not recognized exceptions to Rule
412.’” (quoting White Buffalo, 84 F.3d at 1054)).6

       Second, we conclude that the district court’s exclusion of this evidence was not
disproportionate to the purposes served by exclusion. Pumpkin Seed’s only reason
for seeking to admit this evidence was to demonstrate that Red Cloud had a motive to
make a false rape allegation. More specifically, Pumpkin Seed argued that she needed
a cover story to protect her married paramour’s identity in case she became pregnant
or contracted a sexually-transmitted disease (“STD”) during their relationship. In
other words, Pumpkin Seed claimed that if Red Cloud became pregnant or got an STD
as a result of her relationship with the married man, she could blame it on her rape by

      6
        In his supplemental briefing on the Rule 412 motion, Pumpkin Seed argued for
the admission of Red Cloud’s lie during the rape-kit interview by claiming that “[i]f
she lies about one fact [X] she is lying about other facts.”

                                         -11-
Pumpkin Seed and avoid publicly disclosing her relationship with the married man.
During the Rule 412 hearing, however, the Government discredited Pumpkin Seed’s
feared-pregnancy theory. The Government offered that in October 2002, Red Cloud
underwent a tubal ligation, which made it extremely unlikely that she would fear
becoming pregnant during the course of her relationship with the married man.
Accordingly, evidence of Red Cloud’s prior sexual relationship with the married man,
offered to prove that Red Cloud feared becoming pregnant by him, had little, if any,
probative value as to Red Cloud’s motive to falsely accuse Pumpkin Seed of rape.
Pumpkin Seed’s feared-STD theory faces a similar defect.7 An STD, unlike a
pregnancy, generally is not readily observable by members of the general public, and
therefore it is highly unlikely that anyone other than her physician or her married
paramour would know about it. Pumpkin Seed posits no reason why Red Cloud
would feel the need to make a false rape allegation in order to conceal the identity of
the source of a feared STD that, by its nature, would not be publicly observable or
likely to result in public disclosure. See Boyles, 57 F.3d at 548. Accordingly,
evidence of Red Cloud’s prior sexual relationship with the married man, offered to
prove that Red Cloud feared contracting an STD from him, also lacks probative value
as to Red Cloud’s motive to falsely accuse Pumpkin Seed of rape. Thus, “[i]n light
of the minimal probative value of the evidence and the important purpose of the
exclusion, [the] exclusion of the [evidence] was not disproportionate to the purpose
behind the exclusion.” See Bordeaux, 400 F.3d at 559.


      7
        The admissibility of evidence of Red Cloud’s consensual sexual relationship
with a married man and of her false answer to a rape-kit question based on Pumpkin
Seed’s theory that Red Cloud needed a cover story if she got an STD from her married
paramour is subject to plain error review because Pumpkin Seed raised the STD
theory for the first time in his opening brief to this court. See Elbert, 561 F.3d at 775
(“‘When a party has failed to preserve an evidentiary issue for appellate review,’ we
review for plain error.” (quoting Williams v. Wal-Mart Stores, Inc., 922 F.2d 1357,
1360 (8th Cir. 1990))). However, it makes no difference here whether we subject this
theory to the stricter plain error standard, because we find no error, plain or otherwise,
in the court’s exclusion of this evidence.

                                          -12-
       We also are not persuaded that the Supreme Court’s decision in Olden v.
Kentucky, 488 U.S. 227 (1988) (per curiam), requires the admission of this evidence
based on Pumpkin Seed’s pregnancy and STD theories. In Olden, the Court reversed
Olden’s rape conviction because the Kentucky rape-shield rule improperly denied
Olden the opportunity to impeach the alleged victim based on bias in violation of the
Confrontation Clause. Id. at 232. Specifically, the Kentucky rape-shield rule
prevented Olden from introducing evidence of the alleged victim’s sexual behavior
offered to prove her motive to falsely accuse Olden of rape. Id. at 230. Although both
this case and Olden involve evidence offered to prove that the respective alleged
victims had a motive to make a false rape allegation, the cases differ in a key
respect—namely, the evidence’s relative “potential to demonstrate the falsity of [the
alleged victim’s] testimony.” See id. at 232. In Olden, the defendant’s evidence of
the alleged victim’s extramarital relationship with a married man was highly probative
of the alleged victim’s motive to make a false rape claim, given that the married man
caught the alleged victim and Olden in a compromising position, which would
threaten her ongoing relationship with the married man. Id. Here, instead, Pumpkin
Seed’s theory of Red Cloud’s motive to falsely accuse Pumpkin Seed of rape has little,
if any, potential to demonstrate the falsity of her testimony. Red Cloud knew that she
could not get pregnant from her married paramour as a result of her tubal ligation, and
Pumpkin Seed has made no offer of proof showing that Red Cloud feared contracting
STDs (which, by their nature, are not readily discoverable by the general public,
thereby undermining her need for a cover story).8 Accordingly, we conclude that the
district court did not err in holding that this evidence was inadmissible under Rule
412(b)(1)(C).


      8
        In his reply brief and at oral argument, Pumpkin Seed for the first time offers
an Olden-like theory for Red Cloud’s motive to falsely accuse him of rape; that is, that
Red Cloud feared her relationship with her married paramour would be in jeopardy
if he discovered that she was having consensual sexual relations with Pumpkin Seed.
By failing to raise this issue to the district court or to this court in his opening brief,
however, Pumpkin Seed abandoned this argument. See Barnum, 564 F.3d at 968 n.4.

                                           -13-
      C. Attempted Aggravated Sexual Abuse Instruction

        Pumpkin Seed’s final argument in this appeal is that the district court abused
its discretion when it overruled his objection to the inclusion of a jury instruction on
attempted aggravated sexual abuse. Pumpkin Seed alleges that the instruction was
improper because Red Cloud testified that Pumpkin Seed penetrated her and,
therefore, the evidence, if believed, only supported a conviction for the completed
offense of aggravated sexual abuse, not an attempt.

       We review the district court’s choice of jury instructions for an abuse of
discretion. United States v. No Neck, 472 F.3d 1048, 1054 (8th Cir. 2007). “We will
affirm so long as ‘the instructions, taken as a whole, fairly and adequately submitted
the issues to the jury.’” United States v. Aleman, 548 F.3d 1158, 1166 (8th Cir. 2008)
(quoting United States v. Lalley, 257 F.3d 751, 755 (8th Cir. 2001)), cert. denied, 556
U.S. ---, 77 U.S.L.W. 3656 (2009).

       Attempted aggravated sexual abuse is a lesser-included offense of aggravated
sexual abuse. See United States v. Remigio, 767 F.2d 730, 733 (10th Cir. 1985) (“The
crime of attempt is a lesser included offense of the substantive crime.”). A district
court acts within its discretion by giving an instruction on a lesser-included offense
where:

      (1) a proper request is made; (2) the elements of the lesser offense are
      identical to part of the elements of the greater offense; (3) there is some
      evidence which would justify conviction of a lesser offense; (4) the proof
      on the element or elements differentiating the two crimes is sufficiently
      in dispute so that the jury may consistently find the defendant innocent
      of the greater and guilty of the lesser included offense; and (5) there is
      mutuality, i.e., a charge may be demanded by either the prosecution or
      defense.



                                         -14-
United States v. Herron, 539 F.3d 881, 885-86 (8th Cir. 2008) (quoting United States
v. Dodd, 483 F.3d 873, 876 (8th Cir. 2007)).

       Here, Pumpkin Seed’s arguments on appeal concern the third and fourth Herron
elements: the existence of evidence justifying a jury conviction of attempted
aggravated sexual abuse and the existence of a dispute concerning the proof of
attempted aggravated sexual abuse and (completed) aggravated sexual abuse. Based
on the Government’s evidence adduced at trial, a jury could have reasonably believed
either of two scenarios: that Pumpkin Seed penetrated Red Cloud by force with the
requisite intent, thereby completing the offense of aggravated sexual abuse, or that
Pumpkin Seed took a substantial step toward completing the offense of aggravated
sexual abuse by force with the requisite intent without actually penetrating Red Cloud,
thereby committing an attempt. The jury could have reasonably believed the first
scenario by accepting Red Cloud’s full account of the incident, including her
testimony that Pumpkin Seed forced himself onto her and had sexual intercourse with
her against her will. Alternatively, the jury could have reasonably believed the second
scenario by accepting part of Red Cloud’s account of the incident, including her
testimony that Pumpkin Seed forced himself onto her, but accepting part of Pumpkin
Seed’s account of the incident that there was no vaginal penetration. Accordingly, we
conclude that the Government presented “some evidence which would justify
conviction of a lesser offense” and that “the proof on the element or elements
differentiating the two crimes [was] sufficiently in dispute so that the jury [could
have] consistently [found Pumpkin Seed] innocent of the greater and guilty of the
lesser included offense.” See id. at 886. Therefore, we conclude that the district court
did not abuse its discretion in including a jury instruction on the lesser-included
offense of attempted aggravated sexual abuse.9

      9
        Even if there was insufficient evidence to support the district court’s
instruction on attempted aggravated sexual abuse, we would still reject Pumpkin
Seed’s argument. See United States v. Dreamer, 88 F.3d 655, 658 (8th Cir. 1996)
(rejecting defendant’s argument that “there was insufficient evidence to support [a

                                         -15-
III.   CONCLUSION

       For the foregoing reasons, we affirm the district court.
                       ______________________________




jury] instruction” by concluding that “[w]hen the district court submits to the jury two
or more grounds for conviction, for one of which there was insufficient evidence, and
it is impossible to tell on what grounds the jury decided the defendant’s guilt, we
cannot reverse the jury’s general verdict of guilty.”). Here, as in Dreamer, we would
not reverse Pumpkin Seed’s conviction because taken in the light most favorable to
the guilty verdict, the Government presented sufficient evidence to support Pumpkin
Seed’s conviction for aggravated sexual abuse, and the jury’s general verdict of guilty
makes it impossible to determine whether the jury convicted Pumpkin Seed for a
completed offense or an attempt. See id.

                                         -16-
