                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                        UNITED STATES COURT OF APPEALS                      December 20, 2019

                                                                           Elisabeth A. Shumaker
                                      TENTH CIRCUIT                            Clerk of Court



    UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

    v.                                                          No. 18-2174
                                                      (D.C. No. 1:14-CR-02563-PJK-1)
    MELVIN RUSSELL,                                              (D. N.M.)

           Defendant - Appellant.



                                   ORDER AND JUDGMENT*


Before BACHARACH, SEYMOUR, and MCHUGH, Circuit Judges.



         On July 24, 2014, a federal grand jury returned a one-count indictment against

Melvin Russell for aggravated sexual abuse of C.E. in violation of 18 U.S.C. §§ 1153,

2241(a)(1), and 2246(2)(A). Prior to trial, the district court denied a Rule 412 motion

filed by Mr. Russell seeking to introduce evidence of C.E.’s other sexual behavior. Mr.

Russell properly preserved this issue for appeal by unsuccessfully renewing his Rule 412

motion throughout the trial. Mr. Russell also requested a lesser included offense



*
  This order and judgment is not binding precedent, except under the doctrines of law of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.
instruction for assault by striking, beating, or wounding under 18 U.S.C. § 113(a)(4).

The district court denied Mr. Russell’s requested instruction, and the jury subsequently

found him guilty of aggravated sexual assault. He appeals and we affirm.

                                             I.

                                       Background

       On May 19, 2014, C.E. went to Mr. Russell’s home with her friend Rochelle

Cornfield and Ms. Cornfield’s young daughter to see if Mr. Russell had alcohol for them.

While drinking with Mr. Russell, Ms. Cornfield became very intoxicated and fell asleep

with her daughter on Mr. Russell’s couch. C.E. and Mr. Russell continued talking in his

kitchen and, according to C.E., Mr. Russell became aggressive and began making lewd

comments about C.E.’s body. He then threw C.E. on a bed, tore off her clothing, and

penetrated her. During the assault, Mr. Russell choked C.E.’s neck and threatened her

with a samurai sword. Ms. Cornfield’s daughter began to cry and Mr. Russell stopped,

after which C.E. left with Ms. Cornfield and her daughter.

       C.E. was given a ride to the emergency room of the San Juan Regional Medical

Center the next evening. After she requested a rape kit, Nurse Susan Eldred performed a

Sexual Assault Nurse Examination (“SANE”). As part of the exam, Nurse Eldred asked

C.E. if she had vaginal intercourse with another man within five days of the assault and

C.E. affirmed that she had. Nurse Eldred identified thirty-two separate injuries on C.E.’s

body and another seven to her genital area. She later testified that C.E.’s internal genital

injuries were consistent with “very rough handling.” Rec., vol. III at 1084–85. During
                                              2
the examination, Nurse Eldred collected samples from C.E. for DNA testing. Later tests

by the FBI found Mr. Russell’s DNA on C.E.’s gluteal folds and chest. None of the

swabs tested positive for Mr. Russell’s semen, however, and none of Mr. Russell’s DNA

was found on any of the vaginal, cervical, or oral swabs.1 C.E. was also examined by Dr.

Gibbs, who observed bruises to C.E.’s face, chest, abdomen, arms, legs, and external

genitalia. While Dr. Gibbs characterized C.E.’s external genital injuries as “mild and

minor,” he did not perform an internal pelvic exam. Rec., vol. V at 212.

       During an interview with FBI agents, Mr. Russell confessed to raping C.E. At

trial, the jury watched a video recording of Mr. Russell’s confession. In the confession,

Mr. Russell admitted that he used a sword “to make things go [his] way” and that he was

a “very, very violent person.” Rec., vol. IV at 177, 179.

       Prior to trial in 2018, Mr. Russell filed a Rule 412 motion seeking to admit as

evidence C.E.’s answer to the SANE question about her recent sexual history. He argued

that the alleged prior consensual sex could have been the source of C.E.’s present genital

injuries. While Mr. Russell pointed to testimony from Nurse Eldred that internal genital

injuries can arise from consensual sex, he did not present testimony or other evidence that

C.E.’s particular injuries could have been caused by consensual sex. The district court

noted that Nurse Eldred had characterized C.E.’s injuries as being consistent with violent

or rough sex and that Mr. Russell had failed to provide any evidence that C.E.’s prior


1
 Nurse Eldred testified that C.E. told her Mr. Russell wore a condom. See Rec., vol. III
at 1085.
                                             3
sexual encounter was rough or violent. Without more evidence to support his claim, the

court ruled that Mr. Russell’s proffered evidence was merely speculative and could not

support the admittance of C.E.’s sexual history through Rule 412(b)(1)(A) or (C).

       Mr. Russell also requested a lesser included offense instruction for assault by

striking, beating, or wounding under 18 U.S.C. § 113(a)(4). In denying the proposed

instruction, the district court determined that evidence supporting the lesser included

offense was “totally lacking.” Rec., vol. V at 226. It ruled accordingly that a rational

jury could not convict of the lesser offense and acquit of the greater offense.

       Mr. Russell raises multiple issues on appeal, and we address each one in turn.

                                            II.

                Excluded Evidence of Victim’s Other Sexual Behavior

       We review for abuse of discretion the district court’s rulings regarding the

admissibility of evidence of a victim’s prior sexual behavior. See United States v. Pablo,

696 F.3d 1280, 1297 (10th Cir. 2012). Accordingly, we will not reverse that ruling

“without a definite and firm conviction that the [district] court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.” United

States v. Griffin, 389 F.3d 1100, 1103 (10th Cir. 2004) (quotation marks and citation

omitted). The application of Rule 412 presents a difficult challenge because district

courts must balance the alleged victim’s interests in preventing “the invasion of privacy,

potential embarrassment and sexual stereotyping” with the defendant’s interest in

receiving a fair trial. Pablo, 696 F.3d at 1297 (citation omitted).
                                              4
          A. Federal Rule of Evidence 412(b)(1)(A)

       “[E]vidence offered to prove that a victim engaged in other sexual behavior” is

generally inadmissible. Fed. R. Evid. 412(a)(1). An exception arises when the evidence

of a victim’s prior sexual behavior is offered to prove that someone other than the

accused was the source of the victim’s injuries. Fed. R. Evid. 412(b)(1)(A). For the

exception to apply, however, the relationship between the evidence in question and the

victim’s injuries must be more than “speculative.” Pablo, 696 F.3d at 1299.

       Mr. Russell argues that C.E.’s response to the SANE question concerning her

recent sexual history should have been admitted as an alternative source of her injuries.

He points to Nurse Eldred’s testimony that vaginal injuries can result from consensual

sex and that C.E. could be susceptible to easy bruising because of a liver condition. He

conceded in oral argument, however, that he offered no evidence concerning the nature of

C.E.’s alleged prior sexual behavior.

       In Pablo, we affirmed the district court’s exclusion of evidence that a sexual

assault victim was in a state of partial undress in the presence of two other men

immediately prior to the sexual assault because the evidence only had a “speculative and

tenuous relationship” to the defendant’s argument. Id. The evidence proffered by Mr.

Russell is similar because it relies completely on speculation that C.E.’s specific injuries

could have been caused by prior consensual sex. Due to the lack of substantive evidence,

the district court had nothing on which to consider the application of the exception urged

by Mr. Russell. Under these circumstances, the court clearly did not abuse its discretion
                                              5
in ruling that Mr. Russell’s evidence was too tenuous to invoke the exception in Rule

412(b)(1)(A).

          B. Federal Rule of Evidence 412(b)(1)(C)

       A second exception to Rule 412(a) allows a trial court to admit evidence of a

victim’s prior sexual conduct when exclusion of that evidence would conflict with the

defendant’s constitutional rights. Fed. R. Evid. 412(b)(1)(C). When a defendant

challenges the exclusion of evidence on constitutional grounds, we review de novo.

United States v. Solomon, 399 F.3d 1231, 1239 (10th Cir. 2005). While a defendant’s

constitutional rights include “the right to present witnesses in his or her own defense,”

this right may be subject to restrictions imposed by a trial court. United States v. Powell,

226 F.3d 1181, 1199 (10th Cir. 2000) (citations omitted). We apply a two-part test in

determining whether a defendant’s constitutional rights were violated by the exclusion of

evidence. Id. “First, we examine whether that testimony was relevant, and if so, whether

the state’s interests in excluding the evidence outweighed [the defendant's] interests in its

admittance.” Id. (emphasis in original) (quotation marks and citation omitted). The

state’s interests in excluding evidence may include preventing issue confusion and

protecting the victim from “invasion of privacy, potential embarrassment, and

stereotyping.” Id. “Second, we examine whether the excluded testimony was material—

whether it was of such an exculpatory nature that its exclusion affected the trial’s

outcome.” Id. (emphasis in original) (quotation marks and citation omitted).

       Mr. Russell contends the district court’s exclusion of evidence of C.E.’s recent
                                              6
sexual history violated his constitutional right to present witnesses in his defense. But

this right is limited to situations involving relevant evidence where the defendant’s

interests in admittance outweigh the state’s interests in exclusion. See id. While Mr.

Russell again points to Nurse Eldred’s testimony that vaginal injuries can result from

consensual sex, he admittedly has no evidence that prior consensual sex could have

caused C.E.’s specific injuries. Just as with his Rule 412(b)(1)(A) argument, Mr. Russell

failed to provide the district court with any evidence to consider in applying the relevance

test for Rule 412(b)(1)(C). Without more, his interests in admitting C.E.’s answers to the

SANE questions do not outweigh the state’s interest in protecting the victim’s private,

sensitive information.

       Mr. Russell compares his case to United States v. Begay, 937 F.2d 515 (10th Cir.

1991), but his analogy is unpersuasive. Begay was charged with aggravated sexual abuse

of D., a minor, and he sought to prove that D.’s injuries came from another man, John

Jim, by introducing testimony of a witness who saw Jim sexually assault the victim on

three separate occasions preceding the alleged sexual assault by Begay. Id. at 517, 519.

Begay made an offer of proof and supported his claim with testimony from Dr. Wagner

stating that “it was impossible to determine from the physical examination alone whether

D.’s symptoms were caused by Begay or during earlier incidents with John Jim.” Id. at

519. The district court held that Dr. Wagner’s testimony was inadmissible. We reversed,

reasoning that “[s]ince the prosecution relied heavily on Dr. Wagner’s testimony about

D.’s enlarged hymenal opening . . . , the right to defend by cross-examination showing
                                             7
that the conditions could have resulted from earlier conduct with another person was

crucial and protected by the Rule.” Id. at 520 (citation omitted). Begay is distinguishable

from the present case in significant ways. Because someone witnessed John Jim’s earlier

sexual assault of D., the court in Begay had evidence concerning the nature of the prior

sexual assault to consider when applying Rule 412(b)(1)(C). Id. at 522–23. Here, there

is a complete absence of evidence indicating that C.E.’s prior sexual behavior could have

caused her injuries. Moreover, the defendant in Begay made an offer of proof with

testimony from Dr. Wagner saying that it was impossible to tell the source of D.’s

injuries. Id. Conversely, Mr. Russell conceded in oral argument that he did not offer

similar evidence to the district court. Begay is thus distinguishable from this case and

does not control our decision.

       Without more, the contention that C.E. had consensual sex within five days of the

sexual assault committed by Mr. Russell is not admissible, and we need not address the

second step of this analysis. We affirm the district court’s decision to exclude evidence

of C.E.’s other sexual behavior.

                                          III.

                          Lesser Included Offense Instruction

       We review a trial court’s decision whether to give a lesser included offense

instruction for abuse of discretion. United States v. Toledo, 739 F.3d 562, 568 (10th Cir.

2014). That discretion is narrowly focused “on whether there is any evidence fairly

tending to bear on the lesser included offense.” Id. (quotation marks and citation
                                             8
omitted). We “cautioned that a trial court may properly deny a defendant's request for a

lesser included offense instruction only when there is no evidence to reasonably support

that conviction.” Id. (emphasis in original) (quotation marks and citation omitted).

       Mr. Russell’s final argument on appeal is that the district court erred by refusing to

instruct the jury on the lesser included offense of assault by striking, beating, or

wounding. There are four elements for determining the appropriateness of a lesser

included offense instruction:

       First, the defendant must make a proper request; second, the lesser included
       offense must contain some but not all of the elements of the charged offense;
       third, the elements differentiating the two offenses must be in dispute; and
       fourth, the evidence must allow the jury to rationally acquit the defendant on
       the greater charge and convict on the lesser charge.

Id. (citation omitted). The government only disputes elements three and four.

       Even assuming, without deciding, that the district court erred in denying Mr.

Russell’s lesser included offense instruction, any such error was harmless. The standard

we apply to harmless error review turns on whether the error is constitutional. United

States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990) (en banc). A constitutional error

may be harmless if the court is “able to declare a belief that it was harmless beyond a

reasonable doubt.” Id. (quotation marks and citation omitted). “A non-constitutional

error is harmless unless it had a ‘substantial influence’ on the outcome or leaves one in

‘grave doubt’ as to whether it had such effect.” Id. at 1469 (quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)). Neither the Supreme Court nor the Tenth Circuit has

recognized a federal constitutional right to a lesser included offense instruction in a non-
                                              9
capital case. Tiger v. Workman, 445 F.3d 1265, 1268 (10th Cir. 2006). Accordingly, we

apply the less stringent standard from Rivera to Mr. Russell’s claim of error concerning

his proposed lesser included offense instruction. See 900 F.2d at 1470.

        The evidence against Mr. Russell is overwhelming. He confessed to raping C.E.

and he presented no evidence that his confession was coerced. He further admitted that

he was a “very, very violent person” and that he used a sword “to make things go [his]

way.” Rec., vol. IV at 177, 179. The severity of C.E.’s injuries support Mr. Russell’s

statements. She had thirty-two separate injuries all over her body and an additional seven

to her genital area. Nurse Eldred testified that C.E.’s internal genital injuries were

consistent with “very rough handling.” Rec., vol. III at 1084–85. In rebutting this

evidence, Mr. Russell merely offered the proposition that consensual sex can cause

internal genital injuries without providing any evidence that C.E.’s specific injuries could

have arisen from consensual sex. Because we conclude that any potential error by the

district court in denying a lesser included offense instruction neither had a “substantial

influence” on the outcome nor created a “grave doubt” as to whether it had such effect,

we decline to address the merits of Mr. Russell’s argument. See Rivera, 900 F.2d at

1470.

        For all the foregoing reasons, we AFFIRM.

                                                  Entered for the Court

                                                  Stephanie K. Seymour
                                                  Circuit Judge

                                             10
