The Honorable Richard H. Battey, Chief Judge, United States District Court for 1 the District of South Dakota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3796

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the District v. * of South Dakota. * Charles Lee Richards, Jr., * * Appellant. *

___________ Submitted: May 20, 1997 Filed: July 21, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRI S SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Charles Lee Richards, Jr., appeals from the judgment of guilty entered against him for aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1) following his conviction by a jury. We affirm the judgment of the trial court. 1-2- I. After a party that lasted w ell into the early morning hours, Mr. Richards agreed to drive Shiloh White to her stepfather's house. After a short visit there, Mr. Richards began d riving Ms. White back home, but at some point turned into a dirt road an d stopped the car. Here, the stories diverge. Ms. White testified that Mr. Richard s forcibly raped her, while he testified that she, for various reasons, fabri cated a story and that, in fact, they did not even have sexual intercourse. During trial, the prosecution relied heavily on the testimony of Ms. White and did not attempt to make its c ase with physical evidence. The prosecution never asked Ms

. White, for example, whether Mr. Richards ejaculated inside her. When th e defense raised the issue of ejaculation on cross-examination, moreover, Ms. Whit e stated that she was unsure whether the defendant had ejaculated and that "it" (referring to the intercourse) happened "real quick, just 'Boom.' " When the doctor who late r examined Ms. White testified on direc t examination that she found a white fluid inside Ms. Whi te that had the odor and consistency of semen, the prosecution assiduousl y refrained from asking whether it was later identified a s such by the FBI laboratory. On cross-examination, however, the defense did a sk the doctor whether the fluid was later identified as semen, and she testified that it was.
Because the defendant wanted to introduce evidence that the semen found inside Ms. Whit e was not determined to be Mr. Richards's, and the government wished t o avoid producing the relevant witnesses, the pa rties stipulated that the white fluid found inside Ms. White was identified a s semen by the FBI laboratory but that there was not enoughto perform DNA analysis to determine its source. The government read that stipulation to the jury at the end of its case-in-chief.

Be cause the source of the semen was indeterminable, the government did no t maintain at trial that the semen belonged to Mr. Richards, or even that semen had been found inside Ms. White. During its case-in-chief, however, the defense attempted to-3-

introduce testimony that Ms. White allegedly had intercourse with several other people at the party immediately prior to the altercation with Mr. Richards, in order to sho w another source for the semen found inside her. The trial court refused to admit th e testimony, relying on Fed. R. Evid. 412(a)(1), and instructed the jury that th e govern ment

did not contend that Mr. Richards was the source of the semen and tha t therefore th e jury could not consider that evidence in deciding whether he was guilty.

II. Mr. Richa rds contends that the trial court erred in preventing him fro m presenting the evidence of an alternate source for the semen pursuant to Fed. R

. Evid. 412. That rule, commonly known as the "Rape Shield Rule," generally prohibits the admission of evidence of a prosecuting witness's prior sexual acts. See Fed. R

. Evid. 412(a)(1). It allows the admission of such evidence, however, to "prove that a pers onother than the accused was the source of semen, injury or other physica l evide nce." See Fed. R. Evid. 412(b)(1)(A). Mr. Richards argues that since th e existence of the semen was in evidence, he should have been allowed to show a n alternate source for it. In other circumstances, we might well agree wi th this argument in principle, and if the government had introduced the semen to prove its case, Mr. Richards might well have a point. We believe, however, that the rule does not allow for the admission of such eviden ce when it was the defendant's decision, and not the prosecution's, t o introduce the existence of the semen into evidence in the first instance. Were we t o hold otherwise, a defendant could bootstrap himself into the exceptions contained i n Fed. R. Evid. 412(b)(1). In cases in which the prosecution studiously avoids introducing any evidence of semen in a prosecuting witness, it will probably often be to prevent inquiries into her p r ior sexual activities. If there is no mention of semen at all, it is of course clear that a defendant could not introduce evidence of such activities. United States v. White-4-

Buffalo , 84 F.3d 1052, 1054 (8th Cir. 1996). To permit a defendant to introduce the existence of the semen and then, as a conse quence, allow him to introduce evidence of past sexual activities, would allow the rule to be short-circuited. We believe, moreover, that any possible error in not admitting the evidence was harmless. At trial, the prosecution and the defense each emphasized the credibility (or lackof credibility) of the witnesses. The prosecution relied, for example, o n Ms. Whit e's testimony as to what occurred, and not on physical evidence. Th e defense, in turn, repeatedly tried to impeach Ms. White with her intoxication and what the defense characterized as her prior incons istent statements. Both the doctor and the
woman at the house where Ms. White ran for help, however, testified to prio r statements by her that were consistent with her testimony at trial. The prosecution also thoroughly impeached the defendant's testimony by showing that he had changed his story several times about what happened after the two left the party an d by discrediting, with bloo d analysis, his claim that the two consumed cocaine together and that sh e became angry becaus e he would not get her more of the drug, thus providing her with
a moti ve to fabricate a story. The defense emphasized Mr. Richards's credibility , bringing in , for example, two character witnesses to testify to his reputation fo r truthfulness. Given the emphasis at trial on the stories of Mr. Richards and Ms. White, and the weak probative value that her alleged sexual activities would have had in that context , we believe that any error associated with the exclusion of the proffere d testimony was harmless.

Mr. Richards also argues that the government's evidence was insufficient t o support his convic tion because both he and Ms. White were intoxicated at the time of the relevant events, necessarily leaving a reasonable doubt as to who was telling th e tru th. After a careful review of the record in the light most favorable to the jury' s verdict, U nited States v. Wonderly , 70 F.3d 1020, 1023 (8th Cir. 1995), cert. denied , 116 S. Ct . 1443 (1996), we disagree. Although Ms. White admitted that she wa s intoxicated at the party, testimony co ncerning her activities the next morning indicated-5-

that the le vel of her intoxication had been reduced. The woman to whose hous e Ms. Wh ite ran for comfort after leaving Mr. Richards, for example, hugged her an d testified tha t she did not smell alcohol on her breath; and although the doctor wh o examined her did smell alcohol, she stated that it did not seem to affect what Ms. White told her. T he extent of Ms. White's intoxication, if any, was a matter for the jury t o resolve, and, after carefully reviewing the record, we believe that sufficient evidence exists to support the jury's conclusion that her testimony was credible despite he r intoxication at the party.

Mr. Rich ards last asserts that the trial court erred in instructing the jury that , because the government did not conte nd that he was the source of the semen collected fromMs. W hite, it could not consider that evidence as a fact proving his guilt

. Mr. R ichards appears to argue that this instruction was error because it had a n "inferential prejudicial effect" on him, but he fails to direct our attention to any relevant cases, or even to state any legal principles that he believes support his position. We therefore d ecline to consider this argument. See , e.g. , United States v. Gonzales , 9 0 F.3d 1363, 1369-70 (8th Cir. 1996).

III. For the foregoing reasons, we affirm Mr. Richards's conviction. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.