Appellate Case: 24-7052 Document: 48-1 Date Filed: 09/03/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 3, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-7052 (D.C. No. 6:22-CR-00093-KWR-1) JERRY WAYNE ASBILL, (E.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, MORITZ and ROSSMAN, Circuit Judges. _________________________________
Jerry Asbill challenges his jury convictions for sexual abuse, arguing the
district court committed constitutional and evidentiary error by limiting his cross-
examination of the victim. For the reasons explained below, we affirm.
Background1
In 2014, Asbill invited his girlfriend and her two children to move into his
home in Stillwell, Oklahoma. The girlfriend’s daughter—T.C.—was five at the time.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We summarize “the evidence presented at trial, viewed in the light most favorable to the [split] verdict” in this case. United States v. Dermen, 143 F.4th 1148, 1164 n.1 (10th Cir. 2025). Appellate Case: 24-7052 Document: 48-1 Date Filed: 09/03/2025 Page: 2
According to T.C., Asbill began sexually abusing her soon after they moved in with
him.
When Asbill and T.C.’s mother broke up in 2018, the family moved out of his
house. But Asbill maintained contact with T.C., and in November 2018, just after
T.C.’s tenth birthday, Asbill took her on a hunting trip. Rather than staying at
Asbill’s parents’ house a quarter mile from the deer stand, they stayed at a hotel
eleven miles away. Asbill explained this was because his father had health issues and
was frequently up in the middle of the night. Once they got into the hotel room,
Asbill sexually assaulted T.C. The assault came to light in September 2019, when
T.C. began having flashbacks of the abuse and told her mother what happened.
A grand jury indicted Asbill on five counts of aggravated sexual abuse of a
minor in Indian country. Before trial, Asbill moved to offer evidence that T.C. may
have been sexually abused by someone else. In support, he pointed to records from an
Oklahoma Department of Human Services (DHS) investigation purportedly showing
that “T.C. told a relative and/or family friend that her brother . . . was engaging in
sexual behavior with her while at a family reunion” in August 2018. R. vol. 2, 10.
Two witnesses had reported this incident to DHS, and Asbill said they “would testify
that T.C. told them her brother . . . kept trying to stick his hands down her shorts and
that he has been ‘doing things to her.’” Id. The DHS report associated with its
investigation also suggested that another child may have witnessed the incident
between T.C. and her brother. Relying on Federal Rule of Evidence 412—the federal
rape shield—the district court denied Asbill’s motion. It noted that DHS deemed the
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reported incident unsubstantiated and that the incident involved very different
conduct from what was alleged in the indictment.
The case proceeded to trial. In opening statements, defense counsel mentioned
that DHS interviewed T.C. about an allegation unrelated to Asbill. The government
objected, citing the court’s previous ruling on the DHS report. Defense counsel
explained that he did not plan to go into the details of the incident. Rather, his point
was that “she had an opportunity to disclose” when she “was asked about sexual
abuse[,] and she claimed that there was none.” R. vol. 3, 40. The district court
sustained the government’s objection and directed the defense to seek leave before
raising the issue in front of the jury again.
Defense counsel asked to return to the topic during T.C.’s cross-examination.
At sidebar, he again argued that it was important for the jury to hear that T.C. had an
opportunity to disclose but instead “seem[ed] like” she denied “any sexual abuse of
any kind.” Id. at 95. Specifically, he proffered that there was an accusation unrelated
to Asbill, that T.C. was interviewed by DHS about it, and when asked if sexual abuse
“had ever occurred,” T.C. “denied any sexual abuse.” Id. at 96. But he did not
attempt to enter the DHS report itself into the record.
Finding little relevance and the risk of juror confusion too great, the district
court instructed defense counsel not to mention DHS or the report. But it allowed
defense counsel to ask T.C. about other opportunities to disclose abuse and to use the
DHS report to refresh her recollection. Later, when asked, T.C. confirmed that she
had an opportunity to disclose and did not.
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Defense counsel also attempted to impeach T.C. with prior inconsistent
statements. On direct, T.C. testified that Asbill raped her on the day they checked
into the hotel, also saying that was the last time he touched her. Defense counsel
pointed out that in an earlier forensic interview, T.C. said Asbill assaulted her on the
day they checked out. After reviewing the transcript of her interview, T.C.
acknowledged having said so but explained “that couldn’t have been correct” because
there wasn’t enough time before checkout. Id. at 84.
Defense counsel next turned to statements T.C. made at a state-court
preliminary hearing. When T.C. said that she did not remember her testimony,
defense counsel gave her a four-page excerpt of the transcript to refresh her
recollection. The excerpt—which was later entered into the record—only included
testimony about the day they checked out of the hotel, not the day they checked in.
Defense counsel asked, “when you testified at the preliminary hearing, you told them
that you actually didn’t have sex at the hotel, right?” Id. at 86. T.C. responded that
she did not remember saying that, so defense counsel directed her to the transcript.
She “read it, and it didn’t help.” Id. at 87. And as defense counsel pressed on with
questions about the preliminary-hearing testimony, the government raised several
improper-impeachment objections, each of which the court sustained.
Finally, the government objected as to relevance when defense counsel asked
T.C. whether she had previously shot the gun that Asbill gave her to hunt. Defense
counsel explained that “if . . . Asbill had been brutally raping her . . . I think it would
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be maybe a little more likely that he wouldn’t have given her a gun.” Id. at 99. The
district court sustained the objection.
The jury convicted Asbill of sexually abusing T.C. at the hotel but acquitted on
counts related to T.C.’s allegations of earlier abuse. The district court sentenced him
to life in prison and five years of supervised release.
Asbill appeals.
Analysis
Asbill mounts both evidentiary and constitutional challenges to the district
court’s limits on T.C.’s cross-examination. We review evidentiary decisions limiting
cross-examination for abuse of discretion. United States v. Jones, 213 F.3d 1253,
1261 (10th Cir. 2000). “However, ‘to the extent the challenge to the exclusion of
evidence proffered by the defendant is based on a constitutional objection, we review
the district court’s ruling excluding that evidence de novo.’” United States v. A.S.,
939 F.3d 1063, 1071 (10th Cir. 2019) (cleaned up) (quoting United States v. Pablo,
696 F.3d 1280, 1297 (10th Cir. 2012)).
Asbill contends the district court erred by limiting his questioning of T.C.
about (1) the allegations in the DHS report, (2) her prior inconsistent statements, and
(3) the gun. We dispense with each of his arguments below.
I. Allegations in the DHS Report
Asbill argues the district court erred by limiting his cross-examination of T.C.
on the DHS report under Rule 412. Under that rule, “evidence offered to prove that a
victim engaged in other sexual behavior” or “to prove a victim’s sexual
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predisposition” is inadmissible in a proceeding involving alleged sexual misconduct.2
Fed. R. Evid. 412(a). There is, however, an exception in criminal cases that allows
such evidence in if its “exclusion would violate the defendant’s constitutional rights.”
Fed. R. Evid. 412(b)(1)(C). These elements of Rule 412 “pit[] against each other two
exceedingly important values—the need to safeguard the alleged sexual[-]assault
victim against the invasion of privacy, potential embarrassment[,] and sexual
stereotyping that is associated with public disclosure of intimate sexual details, and
the need to ensure that criminal defendants receive fair trials.” A.S., 939 F.3d at 1071
(cleaned up) (quoting Pablo, 696 F.3d at 1297).
Asbill argues he was entitled to introduce the abuse allegations in the DHS
report under Rule 412(b)(1)(C)’s constitutional-rights exception. Specifically, he
contends excluding evidence that T.C. was abused by someone else violated his
rights to present a complete defense and to confront the witnesses against him. “The
Constitution guarantees criminal defendants a meaningful opportunity to present a
2 Asbill broadly argues that Rule 412 does not apply to the DHS report because unsubstantiated allegations are not evidence of “other sexual behavior” or “sexual predisposition.” Fed. R. Evid. 412(a). For support, he points to the rule’s advisory committee notes, which state that “[e]vidence offered to prove allegedly false prior claims by the victim is not barred.” Fed. R. Evid. 412 advisory committee’s note to 1994 amendments. However, we find no support for Asbill’s suggestion that an unsubstantiated report equates to a false report. Rather, “unsubstantiated” in this context simply means that the investigators were not able to prove the abuse occurred. Compare Unsubstantiated, Merriam-Webster.com, https://www.merriam- webster.com/dictionary/unsubstantiated [https://perma.cc/L6ZY-Z44B] (last visited Aug. 25, 2025) (defining “unsubstantiated” as “not proven to be true”), with False, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/false [https://perma.cc/7F5C-A4JY] (last visited Aug. 25, 2025) (defining “false” as “intentionally untrue” or “not true”). 6 Appellate Case: 24-7052 Document: 48-1 Date Filed: 09/03/2025 Page: 7
complete defense . . . .” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (cleaned up)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)); see also United States v.
Solomon, 399 F.3d 1231, 1239 (10th Cir. 2005) (“The right to present a defense
arises under the Fifth and Fourteenth Amendment right to due process and the Sixth
Amendment right to compulsory process.”). And the Sixth Amendment’s
Confrontation Clause guarantees a defendant’s right “to be confronted with the
witnesses against him.” U.S. Const. amend. VI. That right can be violated when
defense counsel is not allowed “to ‘expose to the jury the facts from which jurors, as
the sole triers of fact and credibility, could appropriately draw inferences relating to
the reliability of the witness.’” Delaware v. Fensterer, 474 U.S. 15, 19 (1985)
(quoting Davis v. Alaska, 415 U.S. 308, 315 (1974)).
Yet a defendant’s rights to present a defense and confront witnesses are “not
without limits”—they are “constrained by the twin prongs of relevancy and
materiality.” Solomon, 399 F.3d at 1239 (applying these prongs in complete-defense
challenge); see also United States v. Powell, 226 F.3d 1181, 1199 (10th Cir. 2000)
(applying the same in Confrontation Clause challenge). For the relevance inquiry, we
examine “whether more traditional factors such as prejudice, issue and jury confusion
weigh in favor of excluding the testimony.” Powell, 226 F.3d at 1199 (quoting
Richmond v. Embry, 122 F.3d 866, 872 (10th Cir. 1997)). And for materiality, we
query whether the testimony “was of such an exculpatory nature that its exclusion
affected the trial’s outcome.” Id. (quoting Richmond, 122 F.3d at 872).
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It follows, then, that evidence of prior sexual conduct should be admitted
where “relevant and probative on a central issue of sexual[-]offense charges.” Id.
at 1198. Successful invocation of the Rule 412(b)(1)(C) exception is rare. For
example, in the Confrontation Clause context, we have observed that “the class of
cases in which evidence otherwise barred by the rape[-]shield statute has been
deemed to be constitutionally compelled is restricted to those which demonstrate a
theory of witness bias or motive to lie.” A.S., 939 F.3d at 1073 (quoting Rosanna
Cavallaro, Rape Shield Evidence and the Hierarchy of Impeachment, 56 Am. Crim.
L. Rev. 295, 299 (2019)).
In denying Asbill’s pretrial motion, the district court rejected Asbill’s
argument that questioning T.C. about the DHS report would reveal her motive to lie
to protect her family. The district court also cast doubt on the probative value of a
DHS report that was unsubstantiated. And it questioned the report’s relevance to
T.C.’s knowledge and vocabulary, considering the allegations there—that T.C.’s
“brother ‘put his hands down’ her pants”—were “far different” from those against
Asbill. R. vol. 2, 22.
On appeal, Asbill argues the alleged molestation was both relevant and
material. We need reach only relevance, for which Asbill offers several theories. He
claims the allegations would have revealed T.C.’s motive to lie, accounted for her
knowledge of sexual acts, and explained her mental-health struggles at the time she
accused Asbill. Regarding T.C.’s motive to lie, Asbill first speculates in his opening
brief that T.C. “may have been trying to do something to change her living situation
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and escape her real abuser without naming that person.” Aplt. Br. 37. But this
speculation is not grounded in the record, as T.C. was no longer living with Asbill
when she reported the abuse. So there is no reason to believe that she would have
been moved from her current home because of the disclosure.
Slightly more convincing is Asbill’s argument that T.C. lied to protect her
brother. But that argument also runs headfirst into relevance problems. As the district
court pointed out, the DHS report carried little probative value because it was
unsubstantiated, and the alleged behavior was very different than the graphic
incidents of Asbill’s abuse that T.C. described. On the other hand, the risk of jury
confusion and undue delay was significant. See United States v. McVeigh, 153 F.3d
1166, 1191 (10th Cir. 1998) (explaining these risks “arise[] when circumstantial
evidence would tend to sidetrack the jury into consideration of factual disputes only
tangentially related to the facts at issue” in the case at hand). Evidence of the DHS
report could have opened the door to a side trial on the brother’s guilt, an issue
unrelated to Asbill’s guilt.
Moreover, the cases on which Asbill relies for admitting the allegations are
distinguishable. It is true that in United States v. Begay, we held that a child-sex-
abuse defendant should have been allowed to cross-examine a victim about past
sexual abuse by another perpetrator. 937 F.2d 515, 518–21 (10th Cir. 1991). Yet
there, the prior sexual abuse had higher probative value because it was
substantiated—the other perpetrator pleaded guilty. Id. at 519. Evidence of the prior
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abuse was also necessary to explain the victim’s physical injuries, an issue not
applicable here. Id. at 523.
Asbill also directs us to United States v. Bear Stops, where the Eighth Circuit
held that a defendant should have been able to introduce “uncontroverted evidence”
of the victim’s prior assault to explain why she exhibited “behavioral manifestations
of a sexually abused child.” 997 F.2d 451, 454, 457 (8th Cir. 1993). Unlike the
“uncontroverted evidence” in Bear Stops, which required no “distracting mini-trial,”
the unsubstantiated allegations we have here could lead to jury confusion or
distraction. Id. (cleaned up). And even so, in more recent cases, the Eighth Circuit
has excluded evidence of child victims’ prior abuse, citing a concern that “every
child victim that has been molested by someone other than the defendant would be
subject to questioning on the conduct of the other molestation(s).” United States v.
Never Misses A Shot, 781 F.3d 1017, 1029 (8th Cir. 2015); see also id. at 1028
(upholding exclusion of child victim’s abuse history to prove alternate source of
“sexual knowledge, experience, and trauma” without discussing Bear Stops); United
States v. Hawkghost, 903 F.3d 774, 778 (8th Cir. 2018) (upholding exclusion of child
victim’s other sexual abuse and distinguishing Bear Stops as permitting evidence
where young child’s unusual behavior could be explained no other way).
Because Asbill cannot show the unsubstantiated allegation of other sexual
abuse was relevant, the district court did not violate his constitutional rights or
Rule 412(b)(1)(C) by limiting his cross-examination of T.C. on the DHS report.
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II. Prior Inconsistent Statements
Asbill next argues the district court erred by limiting cross-examination of
T.C. about her statements to a DHS investigator and at a state-court preliminary
hearing.
As outlined above, a defendant’s constitutional rights to present a defense and
confront witnesses against him are not absolute. See Solomon, 399 F.3d at 1239.
“[T]rial judges retain wide latitude . . . to impose reasonable limits” on cross-
examination of witnesses. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Those
constraints apply even though the rules of evidence permit “[a]ny party . . . [to]
attack”—that is, impeach—a “witness’s credibility.” Fed. R. Evid. 607. A common
path to impeachment is through “contradiction, which occurs when an opposing party
endeavors to show that a fact to which the witness has testified is not true.” United
States v. Cerno, 529 F.3d 926, 934 (10th Cir. 2008). Often, this can be achieved by
introducing extrinsic evidence of a witness’s prior inconsistent statements. Under
Federal Rule of Evidence 613(b), extrinsic evidence of a witness’s prior inconsistent
statement may be admitted “if the witness is given an opportunity to explain or deny
the statement and an adverse party is given an opportunity to examine the witness
about it, or if justice so requires.”3
We begin with Asbill’s arguments about the statement to DHS. Recall that the
district court excluded T.C.’s purported statement to DHS that she had never been
3 This rule was amended in 2024, so we quote from the 2011 version in effect during Asbill’s trial. 11 Appellate Case: 24-7052 Document: 48-1 Date Filed: 09/03/2025 Page: 12
sexually abused on grounds that it could mislead or confuse the jury. Asbill contends
he should have been allowed to ask T.C. about her statement because it was a prior
inconsistent statement—she testified at trial that Asbill had already abused her by the
time of her DHS interview. Yet in the interview, Asbill maintains, she denied any
abuse. And he argues he should have been allowed to bring in extrinsic evidence of
T.C.’s prior denial because she would have been able “to explain or deny the
statement” on the stand. Fed. R. Evid. 613(b). Anticipating a Rule 412 problem,
Asbill also insists a denial of abuse is not evidence of past sexual conduct or sexual
predisposition.4
But the district court was well within its discretion to exclude T.C.’s prior
denial. Defense counsel never entered the DHS report into the record. And he never
asked to cross-examine T.C. outside the presence of the jury. See United States v.
Adams, 271 F.3d 1236, 1241 (10th Cir. 2001) (describing this as the “most desirable”
method for testimonial proffer). Instead, Asbill suggests we rely on defense counsel’s
avowal regarding T.C.’s testimony. Yet we have described this as the “least
favorable[] method for making an offer of proof of testimony” because of its
tendency to “fall short of the standard required by the rules of evidence.” Id. at 1241–
4 Below, Asbill never suggested a denial of abuse fell outside the ambit of Rule 412. Nor did he suggest T.C.’s denial was a prior inconsistent statement or cite Rule 613(b) as grounds for admission. Therefore, Asbill forfeited this argument, and waived it by failing to argue for plain error on appeal. United States v. Roach, 896 F.3d 1185, 1192 (10th Cir. 2018). Nevertheless, because the government did not raise this preservation issue, we consider the merits. See United States v. Heckenliable, 446 F.3d 1048, 1049 n.3 (10th Cir. 2006) (explaining government “waived the waiver” by failing to argue it). 12 Appellate Case: 24-7052 Document: 48-1 Date Filed: 09/03/2025 Page: 13
42. Defense counsel’s uncertain proffer evinces these shortcomings: he stated that he
“believe[d] that she denied any sexual abuse [seemingly of any kind] at that time.”
R. vol. 3, 94 (emphasis added). From this record, we simply cannot determine what
T.C. was asked and how she responded, so we likewise cannot conclude that the
district court abused its discretion in excluding that testimony.
We next consider T.C.’s statements at the state-court preliminary hearing. In
her trial testimony, T.C. said that Asbill raped her on the day that they checked into
the hotel. Defense counsel pointed out that in a forensic interview, T.C. said Asbill
assaulted her on the day they checked out. T.C. acknowledged this and explained that
her prior statement was incorrect because of the timing of checkout. Defense counsel
then brought up T.C.’s testimony from the state-court preliminary hearing, asking her
if she remembered testifying that Asbill did not rape her at the hotel. When T.C. said
she did not recall her testimony, defense counsel gave her a short excerpt in which
she described Asbill inappropriately touching her on the day they checked out. T.C.
acknowledged the veracity of the transcript. This exchange occurred next:
Q: [W]hen you testified at the preliminary hearing, you told them that you actually didn’t have sex at the hotel, right?
A: I don’t remember telling her that.
Q: . . . [W]ould reading the page I originally asked you to look at to see if it would refresh your memory, would that help you out?
A: I read it, and it didn’t help.
Id. at 86–87.
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Defense counsel returned to the transcript, asking, “There was a question that
asked how long you slept for[,] and your answer was thirty minutes, correct?” Id.
at 87. The government objected for improper impeachment, and the court sustained
the objection. Then, defense counsel asked if T.C. testified that she “did not have
actual sex at the hotel” on the day of checkout. Id. at 88. The district court sustained
the government’s improper-impeachment objection. Again, defense counsel asked,
“[W]hen you testified at the preliminary hearing, you did not testify as to any
penetration occurring at the [hotel], correct?” Id. The government objected on
improper-impeachment and asked-and-answered grounds, and the court sustained the
objection.
Asbill argues that the district court improperly limited his use of the
preliminary-hearing transcript to impeach T.C. Although “[p]rior inconsistent
statements are an accepted means of impeaching a witness,” a defendant “must first
lay an adequate foundation.” United States v. Flaming, 133 F.4th 1011, 1028
(10th Cir. 2025). That means demonstrating that prior statements “were in fact
inconsistent with [the witness’s] trial testimony.” Id.
Asbill repeatedly missed that important first step.5 For example, before asking
T.C. whether she testified at the preliminary hearing that she slept for thirty minutes,
5 Because Asbill failed to first establish inconsistency, we need not address his contention that the preliminary-hearing transcript was admissible not only to impeach T.C., but also for substantive purposes. See Fed. R. Evid. 801(d)(1)(A) (providing for admission of prior inconsistent statement as substantive evidence if statement “was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition”). Asbill also never argued for admission on those grounds below. In fact, 14 Appellate Case: 24-7052 Document: 48-1 Date Filed: 09/03/2025 Page: 15
defense counsel needed to establish an inconsistency. To do so, he could have asked,
“How long did you sleep when you returned to the hotel after hunting?” Then, if T.C.
provided a different answer than she did at the preliminary hearing, defense counsel
could introduce the transcript as a prior inconsistent statement. But defense counsel
never asked how long T.C. slept, so there was no inconsistency to impeach.
Defense counsel made a similar mistake in laying a foundation for T.C.’s
preliminary-hearing testimony about the hotel assault. On direct, T.C. said that Asbill
raped her on the day they checked into the hotel, not the day they checked out.
Similarly, at the preliminary hearing, T.C. testified that Asbill did not rape her just
before checkout; instead, she said he inappropriately touched her at that time. As the
government points out, there is no inconsistency between these two statements.
Asbill could have assaulted T.C. the first day and inappropriately touched her the
next day. Pushing back, Asbill argues that T.C. testified to only one assault at the
preliminary hearing. But that is not in the record before us. The four-page excerpt
includes only her testimony about the day of checkout. Asbill reframed his point at
oral argument, arguing the mismatch was in T.C.’s saying the rape after checking in
was “the last time” Asbill touched her. R. vol. 3, 51. In contrast, at the preliminary
hearing, she said he touched her on the day they checked out. But Asbill did not
explain this to the court below, nor did he make this argument in his opening or reply
briefs. See United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) (“[I]ssues
when defense counsel asked to enter the transcript into the record for appellate purposes, he explicitly stated it was “to impeach” T.C. R. vol. 3, 280. 15 Appellate Case: 24-7052 Document: 48-1 Date Filed: 09/03/2025 Page: 16
may not be raised for the first time at oral argument.”). We decline to consider it
now.
Nevertheless, Asbill contends he did establish inconsistencies because “a prior
assertion of a fact” is “inconsistent with a present assertion of a lack of memory.”
United States v. McGirt, 71 F.4th 755, 759 (10th Cir. 2023). However, McGirt
discussed the inconsistency that arises when a witness claims no memory of an event
at trial, but previously made affirmative statements about that event. Id. In contrast,
here, T.C. never testified that she did not remember the hotel assault. Rather, she said
that she did not remember her specific testimony at the preliminary hearing. And
defense counsel’s short, out-of-context excerpt did not refresh her recollection.
In sum, defense counsel repeatedly failed to establish inconsistencies between
T.C.’s testimony at trial and at the preliminary hearing. And the record does not
support Asbill’s contention that T.C. previously denied any sexual abuse, a statement
that the district court was also well within its discretion to exclude. The court’s
limitations do not constitute error.
III. T.C.’s Testimony About the Gun
Finally, Asbill argues the district court abused its discretion by excluding
T.C.’s testimony that he gave her a gun after the alleged rape at the hotel. But a
closer review of the trial transcript reveals the district court did not exclude this
testimony. Defense counsel asked if Asbill gave her a gun, and T.C. responded,
“A .22.” R. vol. 3, 98. Then, defense counsel asked if she had ever shot that gun, and
T.C. said, “Yes.” Id. It was only after this that the government objected as to
16 Appellate Case: 24-7052 Document: 48-1 Date Filed: 09/03/2025 Page: 17
relevance. Defense counsel countered that “if . . . Asbill had been brutally raping
her,” “it would be maybe a little more likely that he wouldn’t have given her a gun.”
Id. at 99. The district court then sustained the objection. As this colloquy makes
clear, T.C.’s testimony that Asbill gave her a gun was allowed in; the objection
related only to whether T.C. had ever shot the gun, and defense counsel failed to
explain the relevance. So the district court did not err in excluding this testimony.
Conclusion
In sum, the district court did not err in limiting Asbill’s cross-examination of
T.C. The allegations of abuse in the DHS report were barred from admission by Rule
412, and the exclusion did not violate Asbill’s constitutional rights. Asbill failed to
lay the foundation for T.C.’s prior inconsistent statements, so the district court did
not abuse its discretion in excluding them. And the district court did not exclude
T.C.’s testimony about Asbill giving her a gun. We thus affirm Asbill’s convictions.
Entered for the Court
Nancy L. Moritz Circuit Judge