PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. STEVEN MICHAEL JOHN, Defendant - Appellant. No. 15-2178

________________ _________________ 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 Defe nder, Office of the Fede ral Public Defender, Albuquerque, New Mexico, for Defendant-Appellant. Jennifer M. Rozzoni, Assistant United Stat es Attorney (Damon P. Martinez, United States Attorney, with her on the brief), Office of th e United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

________________ _________________ Before HARTZ , MURPHY , and HOLMES , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ Following a jury trial in th e 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), FILED United States Court of Appeals Tenth Circuit 

### February 27, 2017 Elisabeth A. Shumaker Clerk of Court2 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 impr oper, 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 vi ctim testified as follows about an incident at her home on July 18, 2013: She was show ering 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 sh e told him that her niece had broken them. She closed the door on him and locked it before returnin g 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 aske d 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 toil et 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 esca pe, but Defendant pulled her back toward the shower. Although she elbowed him, he got his hands around her stomach and then across3 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 show er door tilted, the bathroom trashcan turned over, and the vict im’s menstrual blood smeared on the floor. No forensic testing was conducted. II. DISCUSSION A. Victim Cross-Examination At trial Defendant wanted to cross-exam ine 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 qu estioning. Defendant challenges the court’s ruling, relying on the Confrontation Clause of the Sixth Amendment and the right to present a complete defense under th e Fifth and Sixth Amendments. We summarize what we know of the P hoenix incident from police reports and hospital records presented to the district c ourt: 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 tw o years, she was transferred to an inpatient behavioral-health unit. During intake she denied usin g any illicit substances, despite having told the emergencydepartment staff that she used marijuana. The intake notes characterized the victim as having immature judgment, marked impulsiv ity, an evasive attitude, and a severely4 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 th e 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 co uld not determine whethe r the victim got the alcohol herself or it came from her si ster, they closed the case. Defendant argues that the Phoenix incident sheds light on the accusations against him because it makes sense that the victim would falsely accuse him of sexual assault given the “earlier poorly controlled behavior, c ontinued drug use, and . . . documented psychological disorder” revealed by that incide nt. Aplt. Br. at 28. He says that her condition had led her to fals ely accuse a family member in Phoenix and that she did it again to him. He contends that the Phoenix incident show s her “propensity to lie” and her diminished capacity to “obs erve, remember[,] or narrate,” id. at 18 (internal quotation marks omitted), which resulted from her “drug use” and “impulsive behavior,” id. at 21– 22. And he concludes that testimony on this incident, in light of the lack of physical evidence and the evidence of the victim’s “ongoing substa nce abuse,” may have led the jury to draw “v ital inferences” in his favor. Id. at 20. Much of this argument is not properly be fore us on appeal. At trial the only reason his counsel gave for wanting to questi on the victim on the Phoenix incident was to show that she had an impaired “ability to perceive events, to relate those events, to narrate those events, to remember those things.” R., Vol. 4 at 33. Counsel failed to argue that he should be able to us e the incident to impeach her veracity on cross-examination,5 even after the prosecutor brought up Fed. R. Evid. 608(b), which allows crossexamination regarding “specific instances of a w itness’s conduct in orde r to attack . . . the witness’s character for truthfulness.” Ind eed, counsel rejected the possibility, saying, “Rule 608 deals with truthfulness or untr uthfulness—character for truthfulness or untruthfulness, and that’s not what we’re poi nting to in this, so I don’t think Rule 608 applies at all.” R., Vol 4 at 37. This wa s an “intentional relinquishment or abandonment of a known right,” United States v. Olano , 507 U.S. 725, 733 ( 1993), which precludes Defendant from arguing on appeal that he shou ld have been permi tted to cross-examine the victim to challenge her verac ity based on the Phoenix incident, see id. at 732–33; United States v. Cruz-Rodriguez , 570 F.3d 1179, 1183 (10th Cir. 2009). There remains only the argument that Defe ndant should have been allowed to cross-examine the victim on the Phoenix inci dent because it cast doubt on her ability to perceive, remember, and narrate events. He does not rely on the Rules of Evidence but rather raises a constitutional challenge. He argues that “[b]y unduly restricting [his] cross-examination of [the victim], the distri ct court violated his Sixth Amendment right to confrontation and his right to present a complete defense.” Aplt. Br. at 13. The right to cross-examine witn esses in a criminal trial is an essential part of the right to confront witnesses enshrined in the Confrontation Clause of the Sixth Amendment. See Davis v. Alaska , 415 U.S. 308, 315–16 (1974). But that right is not unlimited. “[T]he Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examina tion that is effective in what ever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986)6 (internal quotation marks omitted). “[T]rial judges retain wide latitude . . . to impose reasonable limits on . . . cross-examination ba sed on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Id. As for the constitutional right to present a complete defense, it does not change the analysis on this appeal. In general, “the ri ght to present a defense . . . is a fundamental element of due process of law.” Washington v. Texas , 388 U.S. 14, 19 (1967). In other words, a defendant has “the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi , 410 U.S. 284, 294 (1973). In the specific context of cross-examination, however, this due-proce ss right amounts to no more than the right to cross-examine contained in the Confrontation Clause. See id. at 294–95. A long line of this circuit’s opinions states that we review de novo all Confrontation Clause challenges to re strictions on cross-examination. See, e.g. , United States v. Geames , 427 F.3d 1333, 1337 (10th Cir. 2005); United States v. Gault , 141 F.3d 1399, 1403 (10th Cir. 1998); United States v. Bindley , 157 F.3d 1235, 1240 (10th Cir. 1998). De novo review, of course, implies th at there is only one correct ruling, leaving the trial judge with no discretion. But the S upreme Court has said that the Confrontation Clause leaves “trial judges . . . wide latitude . . . to impose reasonable limits on . . . crossexamination.” Delaware , 475 U.S. at 679. As a result, some circuits review only for abuse of discretion in this circumstance. See, e.g. , United States v. Smith , 451 F.3d 209, 220 (4th Cir. 2006); United States v. Treacy , 639 F.3d 32, 42 (2 d Cir. 2011). Others review de novo whether the trial judge has pr operly excluded an en tire line of inquiry but7 review more specific limitations for an abuse of discretion. See, e.g. , United States v. Larson , 495 F.3d 1094, 11 01 (9th Cir. 2007) (en banc); United States v. Berrios-Bonilla , 822 F.3d 25, 31 (1st Cir. 2016) (“We enga ge in a two-step review in evaluating challenges to a trial court’s limitation of a cro ss-examination. First, we review de novo to determine whether the defendant was affo rded a reasonable oppo rtunity to impeach adverse witnesses consistent with the Confront ation Clause. If that threshold is met, we review the specific limitati on imposed by the trial court on the defendant’s crossexamination for an abuse of discretion.” (b rackets, citations, footnote, and internal quotation marks omitted)). At some point it may be appropriate to reexamine our standard of review. But for now we are bound to review de novo, and the standard of review does not affect the result here. We see no violation of De fendant’s Sixth Amendment right to cross-examine witnesses. The problem for Defendant is that the Phoenix incident is not even “marginally relevant,” Delaware , 475 U.S. at 679, to the victim’s ability to perceive, remember, or relate the shower incident. It does not show that the victim was under the influence of any drugs or alcohol on the day of the shower incident or at trial that would have prevented her from perceiving, remember ing, or relating events. Nor does it show that she suffered from some mental condition that rendered her unable to perceive, remember, or relate. No lay person could draw that inferen ce and, as the district court noted, the defense did not ha ve an expert witness who drew the inference.8 B. Jury Instructions on A ssessing the Evidence Defendant next challenges three jury in structions—Instructions 9, 10, and 16— that concerned assessment of the evidence. We re view for abuse of discretion a district court’s decision to give a par ticular jury instruction. See United States v. Williamson , 746 F.3d 987, 990 (10th Cir. 2014). “ In order to assess whether the court properly exercised its discretion, we review the jury instructions de novo to determine whether, as a whole, they accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factual issues in the case.” United States v. Faust, 795 F.3d 1243, 12 51 (10th Cir. 2015 (i nternal quotation marks omitted). As a general rule, instructions on how to assess evidence are particularly matters of trialcourt discretion, because they are directed to guiding the jurors ’ common sense in the context of the case rather than in forming them of the governing law. 1. Instruction 9 Instruction 9 stated: “The testimony of the complain ing witness need not be corroborated if the jury belie ves the complaining witness beyond a reasonable doubt.” R., Vol. 1 at 95. Defendant argues that th is instruction “does not accurately reflect the government’s burden,” because the jury must find each element of the charged offenses beyond a reasonable doubt and “[b]elieving only one witness beyond a reasonable doubt is neither necessary or sufficien t.” Aplt. Br. at 32. He cont ends that because his defense rested solely on the lack of corroboration of the victim’s account, the instruction “wiped out the primary thrust” of his defense. Id. at 35

. He also complains that the instruction was “confounding” because it “demanded special attention for the co mplaining witness,”9 contrary to another instruction that told the jury no t to “‘give special attention to any one instruction.’” Aplt. Br. at 32 (quoting R., Vol. 1 at 87). The district court did not abuse its disc retion by giving this instruction. The instruction did not mislead th e jurors, and there was no reasonable chance that it confused them. Although it (properly) informed the jurors that it c ould convict on the basis of the testimony of a single witness, it did not say that they had to believe the victim. If there were any doubt, a separate instruction made it clear that the victim c ould be disbelieved. Instruction 8 told the jurors that they were “the so le judges of the credibility or ‘believability’ of each witness an d the weight to be given to the witness’s testimony,” and it gave them guidance on how to assess the credibility of all witnesses. R., Vol. 1 at 93. 1

1 This paragraph of Inst ruction 8 stated in full: You are the sole judges of the credib ility or ‘believability’ of each witness and the weight to be given to the witn ess’s testimony. An important part of your job will be making judgments a bout the testimony of the witnesses who testified in this case. You sh ould think about the testimony of each witness you have heard and decide whet her you believe all or any part of what each witness had to say, and ho w important that testimony was. In making that decision, I suggest that yo u ask yourself a few questions: Did the witness impress you as honest? Di d the witness have any particular reason not to tell the truth? Did the w itness have a personal interest in the outcome in this case? Did the witness have any rela tionship with either the government or the defense? Did the w itness seem to have a good memory? Did the witness clearly see or hear the things about which he/she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness’s testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should cons ider whether the discrepancy has to do with a material fact or with an unimportant detail. And you should keep in mind that innocent misrecollection—like failure of recollection—is not uncommon. R., Vol. 1 at 93.10 Further, nothing prevented or undermined an argument by defense co unsel that the lack of corroboration prevented belief beyond a reasona ble doubt. And, of course, the jurors were told that they could not convict unle ss they found each element of each offense beyond a reasonable doubt. Viewing the instru ctions as a whole, we do not think that Instruction 9 conveyed a message that th e victim was especially credible. See People of the Territory of Guam v. McGravey , 14 F.3d 1344, 1345–47 (9th Cir. 1994) (approving same instruction in sexual-assau lt case when instruction akin to Instruction 8 was given). We reject Defendant’s challenge. 2. Instruction 10 Instruction 10 stated: “An attorney has the right to interview a witness for the purpose of learning what tes timony the witness will give. The fact that a witness has talked to an attorney does not reflect advers ely on the truth of such testimony.” R., Vol. 1 at 96. At trial, Defendant cross-exam ined the victim on her meetings with the prosecutor to prepare for trial, attempting to suggest that her testimony was unreliable because it was “coached.” Aplt. Br. at 12; see R., Vol. 4 at 234–36. He argues that the instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. He points to one particular event at trial. On direct examination th e victim said that she had never used “spice.” 2 The prosecutor later asked for a recess. When questioni ng resumed, she reversed her testimony,

2 Spice is “a mixture of herbs and spices that is typically sprayed with a synthetic compound chemically similar to THC, the psychoactive ingred ient in marijuana.” Drug Fact Sheet: K2 or Spice (Drug Enforcem ent Administration), http://www.dea.gov/ druginfo/drug_data_ sheets/K2_Spice.pdf (last vi sited Feb. 22, 2017)11 admitting that she had used the substance. The prosecutor commended her for coming forward. Defendant says that without In struction 10 the victim would have been discredited for lying on the stand, but with it the jury instead was able to approve of her recess conversation with the prosecutor and to use the change in testimony to reinforce her credibility. We are not persuaded. In struction 10 does not misstate the law, and it educated jurors on a point that may have been unfa miliar to them. Defendant argues in essence that the instruction suggests that nothi ng improper could possibly occur in such discussions. But that is not what it says. And it does not prevent defense counsel from making a commonsense suggestion that the w itness was influenced by inappropriate coaching. In fact, counsel did so in this case, both during cross-examination and during closing argument. Giving the instructi on was not an abuse of discretion. 3. Instruction 16 Instruction 16 stated in pertinent part: “You may infer, but yo u are certainly not required to infer, that a person intends the natural and probable c onsequences of acts knowingly done or know ingly omitted.” R., Vol. 1 at 1 02. Defendant argues that the instruction was (1) ambiguous, because the court did not te ll the jury which element the instruction was meant to modify , and (2) confusing, because it created uncertainty as to the requisite level of intent. He asserts th at Instruction 16 is meant for general intent offenses, whereas the crimes at is sue require specific intent. We have expressed discomfort with this instruction. See, e.g. , United States v. Heath , 580 F.2d 1011, 1025 (10th Cir. 1978) ; United States v. Woodring , 464 F.2d 1248,12 1251 (10th Cir. 1972) (not plain error) . But we have not reversed a conviction because of its use if the court has made clear to the jury , through the jury instructions as a whole, that the burden is on the government to pr ove the requisite intent beyond a reasonable doubt. See Heath , 580 F.2d at 1025 . That is the situation here . For example, Instruction 13 provided: “[T]he government must prove each of the following elements beyond a reasonable doubt: First, that on or about Ju ly 18, 2013, the defend ant used force with
intent to cause [the victim] to engage in a sexua l act.” R., Vol. 1 at 99 (emphasis added). We decline to reverse on this ground. Instruction 16 is a matter of common sense, regardless of whether the intent at issue could be termed general intent or specific intent. It explicitly states that the ju ry need not infe r the requisite intent. Counsel can still debate whether the inference is appr opriate in the particular ci rcumstances of the case. C. Simple-Assault Instruction Finally, Defendant argues that the district court should have instructed the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. We review for abuse of discretion. See United States v. Toledo , 739 F.3d 562, 568 (10th Cir. 2014). Four conditions must be met for a defend ant to be entitled to an instruction on a lesser-included offense: 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 elemen ts differentiating the two offenses must be in dispute; and fourth, th e evidence must a llow the jury to rationally acquit the defendant on the greater charge and convict on the lesser charge.13 Id. The first two conditions were satisfied. As to the third, Defendant says that “[s]exual intent differentiated the two offenses and was ab solutely disputed.” Aplt. Br. at 48. And as to the fourth, he says that a finding of guilt depended on believing all that the victim said yet her truthfulness could be doubted because of her drug use and the lack of corroborating forensic evidence. Thus, he argues, the jury co uld have found that he acted without sexual intent and convicted him of simp le assault but not sexual assault. The trial judge rejected this argument, saying that “t here is no evidence that [the encounter] was anything but sexual.” R., Vol. 4 at 352. The district court got it right. The vic tim testified that Defendant disrobed and attempted to get in the shower with her, and that when she a ttempted to get away he tried to pull her head toward his “pri vate area.” The jury could reasonably have found that the alleged incident did not occur. But in our view the district court did not abuse its discretion in finding that there was no reas onable ground for believing that Defendant assaulted the victim but not with sexual intent. See United States v. Joe , 831 F.2d 218, 221 (10th Cir. 1987) (fourth requirement for lesser-included-o ffense instruction on simple assault was not met becau se evidence “presented only the scenario that defendant grabbed the victim, pushed her to the floor, pulled her lower clothing partly off, and pulled his pants down”). The district court properly refused to give the simple-assault instruction. III. CONCLUSION We AFFIRM the district court’s judgment.