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

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No. 96-3796

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District

v. * of South Dakota.

*

Charles Lee Richards, Jr., *

*

Appellant. *

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Submitted: May 20, 1997

Filed: July 21, 1997

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Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRIS

SHEPPARD ARNOLD, Circuit Judges.

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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
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I.

After a party that lasted well 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 driving Ms. White back home, but at some point turned into a dirt road and

stopped the car. Here, the stories diverge. Ms. White testified that Mr. Richards

forcibly raped her, while he testified that she, for various reasons, fabricated 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 case with physical evidence. The prosecution never asked

Ms. White, for example, whether Mr. Richards ejaculated inside her. When the

defense raised the issue of ejaculation on cross-examination, moreover, Ms. White

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 later

examined Ms. White testified on direct examination that she found a white fluid inside

Ms. White that had the odor and consistency of semen, the prosecution assiduously

refrained from asking whether it was later identified as such by the FBI laboratory. On

cross-examination, however, the defense did ask 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. White was not determined to be Mr. Richards's, and the government wished to

avoid producing the relevant witnesses, the parties stipulated that the white fluid found

inside Ms. White was identified as semen by the FBI laboratory but that there was not

enough to perform DNA analysis to determine its source. The government read that

stipulation to the jury at the end of its case-in-chief. 

Because the source of the semen was indeterminable, the government did not

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
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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 show

another source for the semen found inside her. The trial court refused to admit the

testimony, relying on Fed. R. Evid. 412(a)(1), and instructed the jury that the

government did not contend that Mr. Richards was the source of the semen and that

therefore the jury could not consider that evidence in deciding whether he was guilty.

II.

Mr. Richards contends that the trial court erred in preventing him from

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

person other than the accused was the source of semen, injury or other physical

evidence." See Fed. R. Evid. 412(b)(1)(A). Mr. Richards argues that since the

existence of the semen was in evidence, he should have been allowed to show an

alternate source for it. 

In other circumstances, we might well agree with 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 evidence when it was the defendant's decision, and not the prosecution's, to

introduce the existence of the semen into evidence in the first instance. Were we to

hold otherwise, a defendant could bootstrap himself into the exceptions contained in

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

prior 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 
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Buffalo, 84 F.3d 1052, 1054 (8th Cir. 1996). To permit a defendant to introduce the

existence of the semen and then, as a consequence, 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

lack of credibility) of the witnesses. The prosecution relied, for example, on

Ms. White's testimony as to what occurred, and not on physical evidence. The

defense, in turn, repeatedly tried to impeach Ms. White with her intoxication and what

the defense characterized as her prior inconsistent statements. Both the doctor and the

woman at the house where Ms. White ran for help, however, testified to prior

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 and by discrediting,

with blood analysis, his claim that the two consumed cocaine together and that she

became angry because he would not get her more of the drug, thus providing her with

a motive to fabricate a story. The defense emphasized Mr. Richards's credibility,

bringing in, for example, two character witnesses to testify to his reputation for

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 proffered

testimony was harmless.

Mr. Richards also argues that the government's evidence was insufficient to

support his conviction 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 the

truth. After a careful review of the record in the light most favorable to the jury's

verdict, United 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 was

intoxicated at the party, testimony concerning her activities the next morning indicated
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that the level of her intoxication had been reduced. The woman to whose house

Ms. White ran for comfort after leaving Mr. Richards, for example, hugged her and

testified that she did not smell alcohol on her breath; and although the doctor who

examined her did smell alcohol, she stated that it did not seem to affect what Ms. White

told her. The extent of Ms. White's intoxication, if any, was a matter for the jury to

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 her

intoxication at the party. 

Mr. Richards last asserts that the trial court erred in instructing the jury that,

because the government did not contend that he was the source of the semen collected

from Ms. White, it could not consider that evidence as a fact proving his guilt.

Mr. Richards appears to argue that this instruction was error because it had an

"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 decline to consider this argument. See, e.g., United States v. Gonzales, 90

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.