United States Court of Appeals

For the Eighth Circuit 

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No. 22-3404

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United States of America

 Plaintiff - Appellee

v.

Stephen Albert

 Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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Submitted: September 22, 2023

Filed: November 6, 2023

[Unpublished]

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Before LOKEN, GRUENDER, and BENTON, Circuit Judges. 

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PER CURIAM.

A jury convicted Stephen Christopher Albert of two counts: (1) sexual abuse 

by threat and force in violation of 18 U.S.C. §§ 1153 and 2242(1); and (2) sexual 

abuse of a minor in violation of 18 U.S.C. §§ 1153 and 2243(a). The district court1

1

The Honorable C.J. Williams, United States District Judge for the Northern 

District of Iowa.
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sentenced him to 452 months in prison on Count 1 and a concurrent 180 months on 

Count 2. He challenges three trial rulings. Having jurisdiction under 28 U.S.C. § 

1291, this court affirms.

I. 

Albert argues the district court “incorrectly instructed the jury regarding the 

mental state required for conviction for sexual abuse under 18 U.S.C. § 2242(1).” 

Generally, this court reviews an unobjected-to instruction for plain error. See United 

States v. Tobacco, 428 F.3d 1148, 1150 (8th Cir. 2005). But “when a defendant 

specifically requests a particular instruction, he gives up the right to appeal any error 

in that instruction.” United States v. Mariano, 729 F.3d 874, 881 (8th Cir. 2013). 

Albert proposed the jury instruction he now challenges. This issue is waived. See 

United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir. 2010) (holding that waived 

claims are unreviewable on appeal).

II. 

Albert contends the district court erred in declining to instruct the jury on the 

lesser-included offense of abusive sexual conduct under 18 U.S.C. § 2244. This 

court reviews jury instructions for abuse of discretion. United States v. Faulkner, 

636 F.3d 1009, 1019 (8th Cir. 2011). A lesser-included offense instruction is 

appropriate when: “(1) a proper request for an instruction is made; (2) the lesser 

offense elements are identical to part of those of the greater offense; (3) there was 

evidence that would justify conviction of the lesser offense; (4) the proof on the 

element differentiating the two crimes was sufficiently in dispute so that the jury 

might consistently find the defendant innocent of the greater and guilty of the lesser 

included offense; and (5) the instruction could have been requested by either party.” 

United States v. Anthony, 537 F.3d 863, 866 (8th Cir. 2008).

Albert argues that abusive sexual conduct is a lesser-included offense of both 

the charged offenses of sexual abuse by threat and force and sexual abuse of a minor. 
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Specifically, he argues “abusive sexual contact is inherent in an unlawful sex act.” 

This court has rejected that argument. “Although it is obvious that any sexual act 

will necessarily involve sexual contact, an independent requirement . . . is to show 

the existence of evidence that would support a jury’s finding of sexual contact 

without finding that a sexual act resulted from the same conduct.” United States v. 

Two Bulls, 940 F.2d 380, 381 (8th Cir. 1991). Here, there was no evidence Albert 

engaged in sexual conduct independent from the conduct charged. In other words, 

no “rational jury could find” Albert guilty of abusive sexual contact “yet innocent” 

of the crimes charged. Id. at 382. The district court did not abuse its discretion in 

declining to issue the instruction.

III. 

Albert asserts the district court erred in admitting evidence of his abuse of 

other family members and school photographs of L.R. taken at the time of the sexual 

assault. This court reviews evidentiary rulings for abuse of discretion. United States 

v. Oliver, 987 F.3d 794, 799 (8th Cir. 2021). “A district court’s admission of prior 

act evidence will be reversed only when such evidence clearly has no bearing on the 

issues in the case and was introduced solely to prove the defendant’s propensity to 

commit criminal acts.” United States v. Rembert, 851 F.3d 836, 839 (8th Cir. 2017)

(cleaned up). 

Here, an element of Count 1 was that Albert caused L.R. to engage in sexual 

acts because he threatened her or placed her in fear of assault. His regular physical 

abuse of other family members is intrinsic to this element. See United States v. RuizChavez, 612 F.3d 983, 988 (8th Cir. 2010) (“Evidence of other wrongful conduct is 

considered intrinsic when it is offered for the purpose of providing the context in 

which the charged crime occurred.”). Importantly, the court limited the evidence to 

abuse the victim witnessed. 

Albert concedes the evidence is at least minimally relevant but argues it is 

unfairly prejudicial. But there is no indication that the evidence encouraged “the 
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jury to find guilt from improper reasoning.” United States v. Muhlenbruch, 634 F.3d 

987, 1001 (8th Cir. 2011). Rather, it helped prove one of the required elements. The 

court did not abuse its discretion in admitting it.

Similarly, L.R.’s size and body stature at the time of the assault (when she 

was 13-years-old) were relevant in assessing her fear of physical assault. When L.R. 

testified at trial she was 23-years-old. School photographs of her appearance during 

the time of the assault were relevant to her fear of assault from an adult man. Albert 

argues without explanation that the “photographs were unfairly prejudicial.” There 

is no indication this is true. The district court did not abuse its discretion in admitting 

the photographs.

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The judgment is affirmed.

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