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United States v. John

United States Court of Appeals, Tenth Circuit

February 27, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
STEVEN MICHAEL JOHN, Defendant-Appellant.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:13-CR-02730-MV-1)

          Michael Keefe, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

          Jennifer M. Rozzoni, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with her on the brief), Office of the United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before HARTZ, MURPHY, and HOLMES, Circuit Judges.

          HARTZ, Circuit Judge.

         Following a jury trial in the United States District Court for the District of New Mexico, Defendant Steven John was convicted on one count of attempted aggravated sexual abuse in Indian country, see 18 U.S.C. §§ 1153(a), 2241(a)(1), and 2246(2)(B), and one count of abusive sexual contact in Indian country, see 18 U.S.C. §§ 1153(a), 2244(a)(2), and 2246(3). On appeal Defendant argues (1) that the district court violated his Sixth Amendment right to confrontation and his right to present a complete defense by restricting his cross-examination of the victim, (2) that several of the jury instructions regarding assessment of the evidence were improper, and (3) that the district court should have instructed the jury on the lesser-included offense of simple assault. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. BACKGROUND

         Defendant and the victim are relatives. At trial the victim testified as follows about an incident at her home on July 18, 2013: She was showering when she heard knocking on her front door. She put on some clothes, opened the door, and saw Defendant. He asked for his sunglasses, but she told him that her niece had broken them. She closed the door on him and locked it before returning to the shower. Not long afterwards she noticed a shadow near the shower door. She cracked the shower door open and saw Defendant undressing. She asked him what he was doing. Continuing to take his clothes off, he answered, "I'm taking a shower." R., Vol. 4 at 174. She tried to get out of the shower-stepping onto the toilet and grabbing a towel hanging on the shower door. Defendant came toward her, and a struggle ensued while both were naked. Despite her pleas to be left alone and for him to get out, Defendant grabbed the towel away from her and pulled her head toward his "private area." Id. at 177-78. She made her way to the bathroom door to try to escape, but Defendant pulled her back toward the shower. Although she elbowed him, he got his hands around her stomach and then across her chest. She eventually was able to push Defendant down into the shower, grabbed her cell phone, got a blanket in the living room to cover herself, and ran outside, where she called the police.

         Officers arrived after Defendant had left. They found the shower door tilted, the bathroom trashcan turned over, and the victim's menstrual blood smeared on the floor. No forensic testing was conducted.

         II. DISCUSSION

         A. Victim Cross-Examination

         At trial Defendant wanted to cross-examine the victim about her being placed in inpatient treatment at a Phoenix behavioral-health facility four months before the assault. The district court disallowed this line of questioning. Defendant challenges the court's ruling, relying on the Confrontation Clause of the Sixth Amendment and the right to present a complete defense under the Fifth and Sixth Amendments.

         We summarize what we know of the Phoenix incident from police reports and hospital records presented to the district court: In March 2013 the victim visited her sister in Phoenix. She alleged that her sister pressured her to drink alcohol, they argued, and the victim grabbed a knife and tried to cut her wrists, making superficial cuts. She was taken to the hospital. After she told the medical staff that she had been having suicidal thoughts for two years, she was transferred to an inpatient behavioral-health unit. During intake she denied using any illicit substances, despite having told the emergency-department staff that she used marijuana. The intake notes characterized the victim as having immature judgment, marked impulsivity, an evasive attitude, and a severely limited fund of knowledge. Staff determined that she had a mood disorder and needed psychotherapy. Defendant's brief asserts that the victim was prescribed medication when she was checked out. But the discharge summary says that no medication was needed.

         The victim's sister denied to police that she had given the victim any alcohol or coerced her to drink. Because the police could not determine whether the victim got the alcohol ...


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