Unpublished Disposition, 936 F.2d 580 (9th Cir. 1988)

MEMORANDUM^* 

Jesus Romero Higuera appeals his conviction following a jury trial for aggravated sexual abuse on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 2241(a) (1). Higuera contends that the district court erred by (1) excluding evidence that the victim was using birth control pills; (2) admitting statements the victim's friends made shortly after the alleged crime; (3) admitting a diagram and photographs marked by a government investigator; and (4) denying Higuera's motion for new trial on account of prosecutorial misconduct. We affirm.

Higuera was indicted for knowingly causing and attempting to cause Grace Gonzales to engage in a sexual act by using force, in violation of 18 U.S.C. §§ 1153 and 2241(a) (1). Higuera and Gonzales knew each other before the alleged crime and lived less than a block away at the time of the incident. At trial, Gonzales testified that Higuera raped her in her grandmother's home on October 29, 1988. Higuera presented the defense of consent.

Over objection Gonzales testified that she spoke with three friends after the incident. She was permitted to testify that each of her friends told her that she should report the incident to the police. Also at trial, Higuera sought to admit evidence that Gonzales was taking birth control pills. Defense counsel argued that this evidence was admissible to show that Gonzales was not sexually naive. Counsel argued that Gonzales' behavior while testifying suggested that she was sexually naive and that the jury should have a complete picture to evaluate. The trial court precluded the defendant from introducing evidence that Gonzales had a prescription for birth control pills.

Also at trial, the Government introduced a diagram prepared by the case agent outlining the areas on Gonzales' body where bruises were allegedly seen by the agent. The trial court allowed the agent to circle the area where he allegedly saw bruises on Gonzales' body. The diagram was allowed into evidence with the agent's markings. The Government was further permitted to ask Higuera why, after he had once told the police investigator that he never had sex with Gonzales, he had not called the authorities to admit to them that he had intercourse with her. Also, during cross-examination of a defense expert, the Government asked questions about prior psychological reports which tended to prove that Higuera was mentally healthy and knew the difference between right and wrong.

A. Evidence of Prescription for Birth Control Pills

Higuera contends that the district court erred by barring the defendant from cross-examining Gonzales about whether she was on birth control pills at the time of the alleged rape. Higuera did not comply with the procedural rules of Fed.R.Evid. 412(c). He argues, however, that the Government "opened the door" at trial to the issue of Gonzales' sexual activity and that he was therefore entitled to inquire into her sexual activity. Higuera argues that the exclusion of the birth control evidence violated his right to confront the witnesses against him and his right to present a complete defense. See, e.g., United States v. Beltran-Rios, 878 F.2d 1208, 1212 (9th Cir. 1989). We disagree.

The record does not support Higuera's argument that the Government "opened the door" to Gonzales' sexuality. Higuera does not claim that the Government asked Gonzales any questions related to her sexuality. Neither does Higuera allege that the Government instructed Gonzales to testify in such a way as to put her sexuality in issue. Instead, Higuera only argues that Gonzales reacted in a naive way to questions asked by Higuera's counsel.

Further, we reject Higuera's allegation that Gonzales intentionally sought to project to the jury that she was sexually naive. Neither a pause before answering a sexually explicit question in open court nor an emotional reaction to recounting a rape would support this allegation. We conclude there was no constitutional violation and no abuse of discretion in this limitation of cross-examination.

Higuera contends that the district court abused its discretion when it allowed Gonzales to testify about what friends of hers said to her when they learned about the incident. In effect, they told her to tell her mother and the police what happened. The prosecution offered the statements for the limited purpose of showing why Gonzales called the police when she did.

The friends' statements were only opinions that she should report the incident. There were no facts related by the friends, the truth of which was in contention. Because the statements were not offered for the truth of the matter asserted, the statements were not inadmissible hearsay. See Fed.R.Evid. 801(c).¹ 

Higuera further contends that the statements of Gonzales' friends should not have been admitted because they go to the ultimate issue in the case. This contention is meritless. The ultimate issue in the case was whether Gonzales was raped. Gonzales' friends had no knowledge of whether she was raped and their statements that Gonzales should tell her mother and the police what happened cannot be characterized as resolving the issue. Thus, their statements do not go to the ultimate issue.

C. Photographs and Diagram Prepared by Criminal Investigator

Higuera contends that the district court erred by 1) admitting photographs of Gonzales taken the night after the incident, and 2) allowing a diagram of Gonzales, which had been marked to show the location of scratch marks and bruises on Gonzales the night after the incident, to be admitted. We review for an abuse of discretion. See United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986) (per curiam).

The photographs were taken and diagram made by an investigator whose duty it was to research and report what happened to Gonzales. The photographs and diagram were therefore admissible under the business records exception of the hearsay rule. See Fed.R.Evid. 803(6); United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988). Further, nothing in the record suggests that the manner in which the photographs were marked by the witness was overly prejudicial. Thus, the district court did not abuse its discretion by permitting the photographs to be highlighted in the areas were Gonzales was bruised. See Goseyun, 789 F.2d at 1387.

Higuera contends that the Government committed prosecutorial misconduct by commenting on Higuera's silence after receiving Miranda warnings.

Higuera was interviewed by a criminal investigator three days after the incident. Higuera was read his rights at that time after which he made a statement that he did not have intercourse with Gonzales. At trial, Higuera changed his story and admitted to having intercourse with Gonzales. After impeaching Higuera with his prior inconsistent statements, the prosecutor asked Higuera whether he ever attempted to contact the police to change his story. The prosecutor's remarks were limited to one question.

The law of this circuit permits a prosecutor to inquire into post-arrest silence on cross-examination for the limited purpose of establishing that the version of events to which a defendant testified to at trial was not the same version of events he told the authorities after waiving his Miranda rights earlier. See United States v. Perry, 857 F.2d 1346, 1353 (9th Cir. 1988); United States v. Makhlouta, 790 F.2d 1400, 1403-05 (9th Cir. 1986). We therefore reject Higuera's claim that the prosecutor acted improperly.

Higuera further contends that the prosecutor improperly used facts not in evidence when cross-examining his expert. However, Higuera did not object to the questions at trial. Thus, he did not preserve the issue for appeal. See United States v. Christophe, 833 F.2d 1296, 1301 (9th Cir. 1987). Higuera also argues that the cumulative effect of the assignments is such that a reversal of the conviction is warranted. See United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988). Because we conclude that none of Higuera's claims has merit, this claim also is rejected.

The judgment of conviction is AFFIRMED.