                                                                           F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                            April 11, 2006
                                      PU BL ISH
                                                                         Elisabeth A. Shumaker
                    U N IT E D ST A T E S C O U R T O F A P PE A L S         Clerk of Court

                                 T E N T H C IR C U IT



 C YN TH IA SEELEY ,

        Plaintiff-Appellee,                                No. 05-2070
 v.                                              (D.C. No. CIV-04-118-JC/LFG)
                                                     District of New M exico
 CH RISTOPHER CH ASE,

        Defendant-Appellant.



                                       ORDER


Gregory Biehler of Albuquerque, New M exico, for the Defendant-Appellant.

Paul J. Kennedy, (M ary Y.C. Han and Rosemary L. Bauman w ith him on the
briefs), Kennedy & Han, P.C., Albuquerque, New M exico for the Plaintiff-
Appellee.


Before L U C E R O , M cK A Y , and M cC O N N E L L , Circuit Judges.


L U C E R O , Circuit Judge.


      Christopher Chase, a former A lbuquerque, New M exico police officer,

appeals a jury verdict awarding $69,880 in compensatory and $873,500 in

punitive damages for his alleged sexual assault of Cynthia Seeley in this 42

U.S.C. § 1983 action. Chase insists that we must set aside the jury verdict
because the district court made numerous evidentiary errors that affected the

outcome of the trial. Because we conclude that the district court abused its

discretion by failing to explain w hy certain prior sexual assault testimony was less

prejudicial than probative, we R E M A N D for the limited purpose of requiring the

district court to place the analysis on the record.

                                           I

      On the night of February 19, 2002, Seeley was visiting her girlfriend

Dorinda Jim. They began to argue, and Jim called the Albuquerque Police

Department for assistance. The police sent two officers to Jim’s apartment,

including Christopher Chase. Observing that one of the two women needed to

leave and “cool off,” Chase offered to drive Seeley to a friend’s house. W hen

Seeley prepared to leave, Chase placed her into the back seat of his patrol car.

According to Seeley, he then took her to a deserted alley and raped her. After

making her way back to Jim’s apartment, Seeley told Jim that she had been raped

by the officer who gave her a ride. Jim called 911.

      Several police officers responded and proceeded to interview Seeley about

the alleged rape. At first, Seeley confirmed the substance of Jim’s call, stating

that she had been raped by the officer w ho had given her a ride. W hile this

discussion was taking place, however, Chase returned to the apartment, and stood

behind the female officer speaking to Seeley. W hen Seeley realized that Chase



                                         -2-
had returned to the apartment – and was staring directly at her – she began to

recant her story. Seeley stated that she had in fact engaged in consensual sex with

a man she met at a nearby bar, and fabricated the story so that Jim would not be

angry with her. The police officers left the apartment.

      This w as the last time Seeley discussed the rape until she was contacted in

M arch 2003 by Detective M onte Curtis. Curtis was conducting an investigation

into allegations that an Albuquerque police officer had committed multiple sexual

assaults in northeast Albuquerque. During this conversation, Seeley stated that

she had been raped by the police officer who transported her on the evening of

February 19, 2002.

      On June 27, 2003, Chase was named in a thirty-two count criminal

indictment in state court (“the indictment”). The indictment charged that Chase

had sexually assaulted Seeley and four other women and girls. The indictment

also charged that Chase had physically abused two women, and kidnapped or

falsely imprisoned five other men and boys. 1

      W hile these charges w ere pending against Chase, Seeley filed this action in

federal district court seeking compensatory and punitive damages for violations of

her civil rights under 42 U.S.C. § 1983, and for assault, battery, false arrest, and




      1
          The record does not reveal the status of the criminal proceedings against
Chase.

                                         -3-
false imprisonment under the New M exico Tort Claims Act. Seeley proffered the

testimony of the four other women allegedly sexually assaulted by Chase as w ell

as the entire criminal indictment. Chase opposed the proffer, moving in limine to

exclude both the testimony and the indictment. The district court summarily

denied the motions. During the three-day jury trial that followed, the district

court allowed the four other alleged sexual assault victims to testify and admitted

the entire criminal indictment into evidence. At the conclusion of the trial, the

jury found for the plaintiff and awarded $69,880 in compensatory damages and

$873,500 in punitive damages.

                                         II

      C hase argues that the jury verdict must be set aside for six reasons. He

contends that the district court abused its discretion by: (1) permitting the sexual

assault victims named in the indictment to testify; (2) permitting the introduction

of the entire indictment into evidence; (3) limiting his cross-examination of

Detective Curtis; (4) excluding the testimony of his expert witness; and (5)

instructing the jury that it could draw an adverse inference from Chase’s assertion

of the privilege against self-incrimination. Finally, Chase argues that even if

none of the above alleged errors require reversal in their own right, (6) the

cumulative effect of the alleged errors requires that w e set aside the jury award.

Because we conclude that the district court abused its discretion by admitting the



                                         -4-
prior sexual assault testimony of other victims without explaining why the

evidence was less prejudicial than probative, we order a limited remand for the

district court to explain its decision on the record. As such, we need not resolve

issues (2) - (6) at this time.

       W e review a district court’s rulings on evidentiary matters and motions in

limine for abuse of discretion. United States v. W eller, 238 F.3d 1215, 1220

(10th Cir. 2001). If error is found in the admission of evidence, a jury verdict

will be set aside only if the error prejudicially affects a substantial right of a

party. Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir. 1998). Evidence

admitted in error can only be prejudicial “if we can reasonably conclude that

without the evidence, there would have been a contrary result.” Smith v. Atlantic

Richfield Co., 814 F.2d 1481, 1487 (10th Cir.1987). M oreover, we are always

mindful that “[t]he jury . . . has the exclusive function of appraising credibility

[and] determining the weight to be given to the testimony . . . .” United

Phosphorus, Ltd. v. M idland Fumigant, Inc., 205 F.3d 1219, 1226 (10th Cir.

2000) (internal citation omitted).

       The testimony of the other four women allegedly assaulted by Chase is

chilling. M itsey Ramone, an eighteen-year-old prostitute at the time of her

alleged assault, testified that she and a patron were pulled over by an

Albuquerque police officer sometime in September 2001. She later identified this



                                           -5-
officer as Christopher Chase. After instructing the patron to leave, Chase told

Ramone that he needed to search her for drugs and weapons. During the search,

Ramone testified that Chase rubbed her breasts and inserted a finger inside her

vagina. After stating that he was taking Ramone to jail, he placed her, uncuffed,

in the back seat of his patrol car and drove to a dark area and raped her. Ramone

also testified that six months later she was again approached by Chase, this time

while w alking on the street with her boyfriend. The boyfriend was ordered to

continue walking, and Chase took Ramone to a nearby park, where he once again

raped her.

      The jury also heard testimony from Veronica Edwell. She testified that on

one evening in January 2003, Chase trailed her car into the parking lot of a local

tavern where she intended to pick up her husband after he had spent a night out

with friends. According to Edwell, Chase got out of his patrol car, approached

her, and asked if she had been drinking. Edw ell said that she had not, and Chase

permitted her to continue driving. Later that evening, however, Chase pulled

Edwell over again. She was instructed to get out of her vehicle and face the car.

W hile he w as searching Edwell, Chase rubbed her breasts, and asked: “Oh, are

you pierced? Do you have any piercings?” H e then asked: “W ell, what are you

going to do to get out of this DW I?” Edwell again insisted that she had not been

drinking, and asked Chase to give her some sort of test. He handcuffed Edwell,



                                        -6-
placed her in the backseat of his patrol car, and continued to ask what she was

willing to do to get out of “this DW I.” Edw ell began to cry, and pleaded to be

released. Chase responded by opening Edwell’s blouse, pulling down her

brassiere, and fondling her breasts. He then released Edw ell, but warned her that

“I’m going to be watching you.”

      M .G. and K.H., both sixteen-year-old high school students at the time of

their alleged assault, also took the witness stand. M .G. and K.H. testified that

they were driving around an Albuquerque suburb with four friends when they

were pulled over by an Albuquerque police officer. The officer approached the

vehicle and explained that he needed to “question” some of them. The officer

took M .G. to his patrol car and sat her on the back seat beside him. Explaining

that he needed to “search” her, Chase inserted tw o fingers inside M .G.’s vagina.

Despite her protests, the officer refused to stop, again stating that he was

searching for weapons and contraband. M .G. was eventually permitted to return

to K.H.’s vehicle. She was not able to positively identify Chase, but selected a

photo of someone resembling Chase out of a photographic lineup.

      K.H. testified that after the officer returned M .G. to the car fifteen minutes

later, she was next taken to the back seat of the patrol car. There, the officer

demanded that K.H. unbutton her pants so that he could check for weapons and

drugs. Over K.H.’s protests, he pulled her pants and underwear down to her



                                         -7-
knees. He then shined a flashlight on her genitals for several seconds. K.H.

returned to her car, followed by the officer. At trial, K.H. was unable to identify

this officer as Christopher Chase; she explained that she never saw him properly.

      The district court admitted the above testimony on the basis of Fed. R.

Evid. 415 which provides:

      In a civil case in which a claim for damages or other relief is
      predicated on a party’s alleged commission of conduct constituting
      an offense of sexual assault or child molestation, evidence of that
      party’s commission of another offense or offenses of sexual assault
      or child molestation is admissible and may be considered as provided
      in Rule 413 and Rule 414 of these rules.

This court has not addressed at length the requirements for admitting prior sexual

assault testimony under Rule 415. We have, however, discussed these

requirements in the context of Rule 413, which covers admission of prior sexual

assaults in the context of a criminal trial. 2 Evidence of prior sexual assaults may

be admitted under Rule 413 if (1) the defendant is on trial for a sexual assault

offense, (2) the evidence proffered is of another sexual assault, and (3) the court

finds the evidence is relevant. United States v. Guardia, 135 F.3d 1326, 1332

(10th Cir. 1998). To be relevant, “the evidence must show both that the



      2
          Fed R. Evid. 413 provides in relevant part:

      In a criminal case in which the defendant is accused of an offense of sexual
      assault, evidence of the defendant’s comm ission of another offense or
      offenses of sexual assault is admissible, and may be considered for its
      bearing on any matter to which it is relevant.

                                         -8-
defendant has particular propensity, and that the propensity it demonstrates has a

bearing on the charged crime.” Id. Finally, the trial court “must make a

reasoned, recorded finding that the prejudicial value of the evidence does not

substantially outweigh its probative value” under Rule 403. 3 Id at 1332 (emphasis

added). The court must give “careful attention to both the significant probative

value and the strong prejudicial qualities inherent in all evidence submitted under

413.” Id. at 1330.

      In applying the R ule 403 balancing test, the district court must consider:
      1) how clearly the prior act has been proved; 2) how probative the evidence
      is of the material fact it is admitted to prove; 3) how seriously disputed the
      material fact is; and 4) whether the government can avail itself of any less
      prejudicial evidence. W hen analyzing the probative dangers, a court
      considers: 1) how likely is it such evidence will contribute to an
      improperly-based jury verdict; 2) the extent to which such evidence will
      distract the jury from the central issues of the trial; and 3) how time
      consuming it w ill be to prove the prior conduct.

United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998). The district court

must also make a “preliminary finding that a jury could reasonably find by a

preponderance of the evidence that the ‘other act’ occurred.” Id.




      3
          Fed. R. Evid. 403 provides:

      Although relevant, evidence may be excluded if its probative value is
      substantially outweighed by the danger of unfair prejudice, confusion of the
      issues, or misleading the jury, or by considerations of undue delay, waste of
      time, or needless presentation of cumulative evidence.

                                        -9-
      Although we have not specifically stated that a district court must follow

these procedures when applying Rule 415, we have stated that courts must “make

a reasoned, recorded statement of its 403 decision when it admits evidence under

Rules 413-415.” United States v. Castillo, 140 F.3d 874, 884 (10th Cir. 1998).

M oreover, w e have noted that Rule 413 and Rule 415 are “companion” rules.

Guardia, 135 F.3d at 1328. As such, in making its “reasoned, recorded

statement,” a district court must follow the same procedure for determining

whether evidence is admissible under Rule 415 as it would when admitting

evidence under Rule 413.

      The parties do not dispute that the trial court failed to conduct a Rule 403

analysis of the proffered prior sexual assault evidence. Under United States v.

Castillo, this requires that we order a limited remand. Castillo was a criminal

case in which the government sought to introduce evidence of uncharged prior

sexual assaults under Rule 413. The defendant opposed the proffer, arguing that

the evidence should be excluded under Rule 403. The district court disagreed,

stating that it believed Rule 403 did not apply to Rule 413, and even if it did, it

found the Rule 413 evidence “relevant and the probative value is not substantially

outweighed by any prejudice.” Ruling that “[t]his statement falls short of our

minimum requirements,” we held:

      [T]he district court’s summary disposition of this issue renders it
      impossible for us to review the propriety of its decision . . . . W ithout any

                                         - 10 -
      reasoned elaboration by the district court we have no way of understanding
      the basis of its decision . . . . As an appellate court, we are in no position
      to speculate about the possible considerations which might have informed
      the district court’s judgment. Instead, we require an on the record decision
      by the court explaining its reasoning in detail.

Castillo, 140 F.3d at 884 (internal citations and quotation marks omitted). The

case was remanded to the district court for the limited purpose of placing its Rule

403 analysis of the Rule 413 evidence on the record. Id. Such a limited remand

is also called for here. There is no way for this court to review the district court’s

determination that the evidence was more probative than prejudicial without an

explanation of its ruling on the record.

      Chase argues that Edwell and K.H.’s testimony was improperly admitted for

another reason as well. Only evidence that the defendant committed other acts of

“sexual assault” is admissible under Rule 415. “Sexual assault” is defined in

Rule 413(d) as follows:

      (1) any conduct proscribed by chapter 109A of title 18, United States Code;
      (2) contact, without consent, between any part of the defendant’s body or
      an object and the genitals or anus of another person;
      (3) contact, without consent, between the genitals or anus of the defendant
      and any part of another person’s body;
      (4) deriving sexual pleasure or gratification from the infliction of death,
      bodily injury, or physical pain on another person; or
      (5) an attempt or conspiracy to engage in conduct described in paragraphs
      (1) – (4).

Chase argues that Edwell and K.H.’s testimony does not constitute “sexual

assault” because neither act involved contact with genitals. Conceding that



                                           - 11 -
Edwell and K.H. did not testify to being touched on the genitals, Seeley argues

that Chase’s behavior should be construed as an attempt to do so. Chase offers

tw o responses.

      First, Chase argues that because the district court did not explicitly rule that

it was admitting the evidence under the “attempt” prong of Rule 413(d), it is

“pure supposition” for this court to assume this prong was the basis for its ruling.

Given that only actual genital contact or an attempted genital contact is

admissible under Rule 415, and there is no allegation by anyone that the Edwell

and K.H. incidents involved genital touching, it is more than “pure supposition”

that the district court admitted the evidence under the “attempt” prong – it is

logically necessary. It makes no sense to presume the basis for the district court’s

ruling as to Edwell and K.H. fell within the former, inapplicable category when

the latter w as obviously applicable.

      Second, Chase argues that Edwell and K.H.’s testimony does not allege

attempted genital contact because there is no allegation that Chase took a

“substantial step” toward commission of the act. See U.S. v. Ramirez, 348 F.3d

1175, 1190 (10th Cir. 2003) (the crime of attempt requires proof that the

defendant committed a “substantial step toward commission of the substantive

offense”) (internal citations and quotation marks omitted). Chase argues there




                                        - 12 -
was no substantial step, apparently because neither Edwell nor K.H. testified that

they were forced to parry an effort by Chase to touch their genitals. W e disagree.

      “A substantial step is an appreciable fragment of a crime and an action of

such substantiality that, unless frustrated, the crime would have occurred. The

step must be strongly corroborative of the firmness of the defendant’s criminal

intent, and must unequivocally mark the defendant’s acts as criminal. It should

evidence commitment to the criminal venture. . . . The dividing line between

preparation and attempt is not clear and depends to a high degree on the

surrounding factual circumstances.” United States v. DeSantiago-Flores, 107

F.3d 1472, 1478-79 (10th Cir. 1997) (quotation marks, alterations, and citations

omitted), overruled on other grounds by United States v. Holland, 116 F.3d 1353

(10th Cir. 1997).

      Chase stopped Edw ell two times, handcuffed her, placed her in his police

car, and asked that she have sex with him to get out of her “DW I.” He then

opened Edw ell’s blouse, and rubbed her breasts. The district court did not abuse

its discretion by determining that this constituted a “substantial step” towards

sexually assaulting Edwell and hence admitted the testimony under Rule 415. Our

conclusion is no different for the testimony of sixteen year old K.H. W hen M .G.

was finally returned to the car after being sexually assaulted by Chase, K.H. that

she was next taken to the patrol car. There, the officer pulled her pants and



                                        - 13 -
underw ear dow n to her knees, he shined a flashlight on her exposed genitals. A s

with Edwell, this testimony is more than sufficient to establish that the district

court did not abuse its discretion in determining that Chase took a “substantial

step” toward sexually assaulting K.H.

                                           III

      Because we cannot review a district court’s decision to admit Rule 415

evidence unless it makes a reasoned, recorded statement of its 403 decision, the

case is R E M A N D E D to the district court for an articulated analysis of its ruling

under Rule 403. This court will retain jurisdiction of the appeal pending the

district court’s further rulings, which shall be certified to this court as a

supplemental record. In the interim, the case is abated. Counsel shall file a status

report every sixty days w ith the clerk of this court.

                                                   Entered for the Court
                                                   ELISABETH A. SHUM AKER, Clerk




                                                   By:
                                                         Deputy Clerk




                                          - 14 -
