Robert C. Eldridge, Petitioner-appellant, v. Allen Terreault, Superintendent, Spring Creek Correctionalcenter State of Alaska, Respondent-appellee, 26 F.3d 130 (9th Cir. 1994)

MEMORANDUM^** 

Robert Eldridge, an Alaska state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Eldridge was convicted of three counts of sexual abuse of a minor and sentenced to ten years of confinement. Eldridge contends that the state trial court violated his Sixth Amendment right to confrontation by impermissibly limiting the scope of cross examination of his wife, the victim's mother. We affirm.

Eldridge contends that the excluded testimony is relevant to show that D.M., the five-year-old victim, falsely reported the instances of sexual abuse. Specifically, he theorizes that D.M. perceived Mrs. Eldridge's anger over her failed marriage and fabricated the instances of sexual abuse to retaliate against him.

We conclude that Eldridge's Sixth Amendment right to confrontation was not violated. First, Eldridge has not demonstrated that D.M. knew Eldridge was the cause of his wife's alleged anger or that D.M. knew her mother attempted suicide. Second, Eldridge failed to demonstrate that D.M., a five-year-old child, had the intellectual ability and emotional maturity to devise and execute the sophisticated plan proffered in his defense. Because Eldridge did not lay any foundation to support his theory of relevance, the district court did not abuse its discretion by prohibiting Eldridge from cross-examining Mrs. Eldridge on her suicide attempt. Wood v. Alaska, 957 F.2d 1544, 1549-50 (9th Cir. 1992).

AFFIRMED.