Appellate Case: 23-5062 Document: 010111062033 Date Filed: 06/07/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 7, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-5062 (D.C. No. 4:21-CR-00176-GKF-1) GARY DUMONT RIGGS, (N.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________
A jury convicted Gary Dumont Riggs of four counts of aggravated sexual
abuse of a minor by force, threat, or fear in Indian Country. The victim was
Mr. Riggs’s step-granddaughter, S.B. On appeal, Mr. Riggs argues the district court
abused its discretion by (1) permitting evidence of his uncharged acts of sexual abuse
against S.B., (2) allowing expert testimony concerning the general characteristics of
child abuse victims and child abuse disclosures, and (3) allowing a sexual assault
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 23-5062 Document: 010111062033 Date Filed: 06/07/2024 Page: 2
nurse examiner to testify about general procedures for conducting sexual assault
examinations. We affirm because Mr. Riggs has not shown any abuse of discretion.
I. BACKGROUND
A. Factual History1
S.B. grew up in Texas but often spent summers in Oklahoma with Susie
Waller, her maternal grandmother. At all relevant times, Ms. Waller was married to
and lived with Mr. Riggs. S.B. considered Mr. Riggs to be her step-grandfather and
called him “Pawpaw.” ROA Vol. II at 111. Mr. Riggs is an enrolled member of the
Cherokee Nation.
1. Instances of Sexual Abuse
Mr. Riggs started sexually abusing S.B. in the summer of 2013, when she was
twelve years old. The first instance occurred when S.B. was gardening with
Mr. Riggs on her grandmother’s property in Oklahoma. They went into the barn for
something, and Mr. Riggs put one hand down S.B.’s pants and “stuck his fingers in
[her] vagina” (“barn incident”). Id. at 113. Mr. Riggs then removed his hand, and
S.B.’s grandmother walked into the barn. S.B. tried to tell her grandmother what
happened but “then brushed it off as a misunderstanding.” Id. at 114. S.B. “brushed it
off” because she “didn’t want to ruin the family” and “didn’t want something to
happen to [her] grandmother.” Id. at 114–15.
1 These facts are drawn from the testimony and evidence presented at trial.
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The next summer, S.B. returned to visit her grandmother and Mr. Riggs. One
day, all three of them were sitting around a table doing a puzzle when Mr. Riggs
rubbed S.B.’s vaginal area over her pants (“puzzle incident”). S.B. later recalled that
she was on her period and wearing a menstrual pad, and she believed the over-the-
clothes touching was “the farthest it got.” Id. at 120. She also recalled that her
grandmother was doing the puzzle with them, but the touching “was all happening
under the table.” Id. at 121.
Also in the summer of 2014, S.B. was lying in bed one night when Mr. Riggs
entered the room and removed her bed covers. He pulled her pants down, grabbed her
ankles, spread her legs apart, and inserted his penis into her vagina. Later that
summer, Mr. Riggs again entered S.B.’s room at night, removed her blankets and
pants, and inserted his penis into her vagina.
That same summer, Mr. Riggs drove S.B. home from a restaurant that the
family had visited after church while the rest of the family remained at the restaurant.
During the drive home, Mr. Riggs inserted his fingers into S.B.’s vagina (“driving
incident”). When they arrived home, Mr. Riggs took S.B. into a guestroom that had a
window, to “make sure that he could stop before anybody came home.” Id. at 129. In
that bedroom, Mr. Riggs again inserted his fingers into S.B.’s vagina. Mr. Riggs then
took off his pants and ordered S.B. to put her mouth on his penis, which she did.
Additionally—on what S.B. believed to be the same day—Mr. Riggs shoved her to
the middle of a bed and put his mouth on her vagina while her legs were spread.
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Also in 2014, S.B. visited her grandmother and Mr. Riggs for Christmas. S.B.
was with Mr. Riggs in the living room, while the rest of the family was in another
room. Mr. Riggs was sitting in a recliner and called S.B. over to him. When she
walked over, Mr. Riggs grabbed her on the hips and sat her on his lap. He then
unbuttoned S.B.’s pants and “stuck his hands through the front of [her] pants into
[her] underwear.” Id. at 124. Next, he inserted his finger into her vagina. A few
months after this incident, S.B. told her friend Hannah that a family member in
Oklahoma had raped her.
In March 2015, S.B.’s mother was getting married, and Mr. Riggs visited
Texas for the wedding. S.B. was in her room getting changed when Mr. Riggs walked
in and touched her (“wedding incident”).
S.B. also later recalled an incident involving a four-wheeler (“four-wheeler
incident”) and an incident that occurred “when [she] was wet” (“swimming
incident”). Id. at 119. However, she could not recall specifics of either of these
incidents.
2. S.B. Discloses the Abuse
In the spring of 2015, when S.B. was in eighth grade, she planned to travel to
Oklahoma for a funeral and stay with her grandmother and Mr. Riggs. That plan
changed, however, when S.B. told another friend that she was “terrified to go back to
[her] grandmother’s house” because of “the things that were happening to [her] over
there.” Id. at 134. S.B. did not give her friend “any details,” but she “told him what
was happening and who was doing it to [her].” Id.
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The friend reported S.B.’s disclosure, and a police officer contacted S.B.’s
mother, Kristi Thomas. Ms. Thomas asked S.B. if “what the officer on the phone was
saying was true,” and S.B. “told her yes.” Id. at 135. Ms. Thomas relayed this
information to S.B.’s father, Randall Benton, who was already in Oklahoma for the
funeral. Because of her disclosure, S.B. stayed with Mr. Benton in a hotel instead of
staying with her grandmother and Mr. Riggs.
When S.B. arrived in Oklahoma, Mr. Benton asked her what had happened,
and she said, “[H]e touched me down there.” Id. at 485. Mr. Benton asked S.B. if
Mr. Riggs “ever put his penis in [her] vagina or things like that,” and “she said yes.”
Id.
3. Mr. Riggs’s Interview
Gary Stansill, an investigator with the local district attorney’s office,
interviewed S.B. while she was in Oklahoma for the funeral. A few hours after
interviewing S.B., Investigator Stansill interviewed Mr. Riggs as well. Before the
interview, Mr. Riggs was informed of and waived his Miranda rights.
Mr. Riggs initially denied having any sexual contact with S.B. He then
described an incident where he and S.B. were outside gardening, and S.B.’s shirt
“just [came] unbuttoned real easy.” Id. at 363. He told S.B. to ask her grandmother to
sew the shirt up. S.B. got “scared” and told her grandmother, Ms. Waller, that
Mr. Riggs “touched her.” Id. S.B. then told Ms. Waller “it didn’t happen.” Id.
Investigator Stansill asked if this happened in or near the barn, and Mr. Riggs
confirmed this happened in the barn.
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Despite his initial denials, Mr. Riggs eventually admitted to touching S.B.
Specifically, he admitted to touching S.B.’s vaginal area three times. The touching
was “[s]ometimes” on the outside of S.B.’s underwear but also occurred on the inside
of her underwear. Id. at 400. Mr. Riggs said S.B. never told him to stop, and then he
stated, “I’m blaming her now. And I’m not going to blame her, you know. I mean,
she could have said no, I mean, it – she probably did want to say no. But she didn’t.”
Id. at 402.
Mr. Riggs also explained that sometime in the summer of 2014, he was
standing in the kitchen after church when S.B. walked over to him, unzipped his
pants, and kissed his penis. Mr. Riggs stated that after this incident, “[S.B.] wasn’t
afraid to touch [him], and [he] wasn’t afraid to touch her.” Id. at 400.
After admitting to these incidents, Mr. Riggs stated, “There’s more of me and
her doing things, not – not – not me just doing it.” Id. at 409. He also consistently
denied having sexual intercourse with S.B. and penetrating her vagina with his
fingers. Nevertheless, Mr. Riggs admitted that S.B. “could have” felt like he
“penetrated her” with his hand. Id. at 404. And when asked if he “assault[ed]” of his
“own free will,” Mr. Riggs replied, “Absolutely.” Id. at 408. He continued, “I should
stop it before it even got started, but I didn’t. I just agged [sic] it on.” Id. (alteration
in original).
B. Procedural History
After his interview, Mr. Riggs was arrested and later convicted in Oklahoma
state court. Mr. Riggs’s state court convictions were vacated following McGirt v.
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Oklahoma, 140 S. Ct. 2452 (2020). Thereafter, in April 2021, Mr. Riggs was indicted
by a federal grand jury with four counts of aggravated sexual abuse of a minor in
Indian Country. The four counts were based on the two instances where Mr. Riggs
inserted his penis into S.B.’s vagina, the instance where Mr. Riggs ordered S.B. to
put her mouth on his penis, and the instance around Christmastime where Mr. Riggs
digitally penetrated S.B.’s vagina.
1. Uncharged Acts Evidence
The Government notified the court and Mr. Riggs of its intent to offer
evidence under Federal Rule of Evidence 413. Under Rule 413, “[i]n a criminal case
in which a defendant is accused of a sexual assault, the court may admit evidence that
the defendant committed any other sexual assault.” Fed. R. Evid. 413(a). The
Government sought to admit evidence of three uncharged acts of sexual misconduct
against S.B. by Mr. Riggs2—the barn, swimming, and wedding incidents.3 Mr. Riggs
opposed the use of this evidence, arguing the alleged acts were inadmissible under
Federal Rule of Evidence 403 because of their prejudicial nature. After a hearing, the
2 The Government also sought to admit evidence of Mr. Riggs’s uncharged sexual misconduct toward individuals other than S.B., but the district court excluded that evidence. That ruling is not at issue on appeal. 3 The Government’s notice indicated the barn incident involved a four- wheeler, but S.B. testified that the barn incident was separate from the four-wheeler incident. Additionally, the Government’s notice stated that during the wedding incident, Mr. Riggs digitally penetrated and licked S.B.’s vagina. S.B., however, testified only that Mr. Riggs “proceeded to touch [her].” ROA Vol. II at 127.
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district court ruled that evidence of the barn, swimming, and wedding incidents was
admissible.
The day after the final pretrial conference, S.B. disclosed four additional
instances of alleged sexual abuse by Mr. Riggs. Two of these instances were the
driving and puzzle incidents.4 The Government filed a supplemental notice of its
intent to present evidence of these uncharged acts at trial, arguing those acts were
admissible under Federal Rule of Evidence 414, which permits a court to “admit
evidence that the defendant committed any other child molestation.” Fed. R. Evid.
414(a).
The district court ruled that two of the incidents were not admissible “given
the possibility of confusion,” among other reasons. ROA Vol. II at 80–81. However,
the court ruled that the driving and puzzle incidents were admissible.
2. Kelsey Blevins Testimony
Through a motion in limine, Mr. Riggs sought to exclude various categories of
evidence. Relevant to this appeal, he sought to exclude the expert testimony of
Kelsey Blevins, a forensic interviewer. The Government intended to have
Ms. Blevins testify to the general characteristics of child sex abuse victims and their
disclosures. Mr. Riggs, however, argued that Ms. Blevins was “not qualified to
testify regarding general actions taken by trauma victims” and that her testimony
4 The Government’s notice specified the puzzle incident involved digital penetration, but S.B. testified that the touching was only over her clothes.
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would not assist the jury because it would “do little more than tell the jury that it
should believe S.B.’s statement.” ROA Vol. I at 68–69.
After a hearing, the district court denied Mr. Riggs’s motion to exclude
Ms. Blevins’s testimony, ruling that Ms. Blevins was qualified “to testify regarding
the general behaviors and characteristics of sexually abused children” and that her
testimony would assist the jury. Id. at 294–95.
3. Trial Testimony
a. S.B. & Hannah
At trial, S.B. testified to the four instances of sexual abuse that were the basis
of the charges against Mr. Riggs. Those instances included the two times Mr. Riggs
inserted his penis into her vagina, the time Mr. Riggs ordered her to put her mouth on
his penis, and the digital penetration when S.B. was visiting around Christmastime.
S.B. also testified about uncharged acts of sexual abuse, namely the barn,
puzzle, driving, four-wheeler, swimming, and wedding incidents. However, S.B.
struggled to remember some of these incidents. For example, she testified that there
was a “four-wheeler incident,” but she did not “really remember what happened.”
ROA Vol. II at 115. Similarly, the Government asked S.B. about the swimming
incident, and S.B. answered that she remembered “a time maybe when [she] was
wet.” Id. at 119. But she did not “really remember” what happened. Id. And when
asked about the wedding incident, S.B. said Mr. Riggs touched her while she was
“attempting to get dressed,” but she was “not really exactly sure.” Id. at 127.
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S.B.’s friend, Hannah, also testified. Hannah testified that when she and S.B.
were in eighth grade, S.B. told her she had been raped by “a close relative” or
“family member.” Id. at 306. S.B. told Hannah the family member lived in
Oklahoma.
b. S.B.’s parents
Ms. Thomas, S.B.’s mother, testified that she learned about S.B.’s disclosure
through a phone call from a police officer. When Ms. Thomas discussed the phone
call with S.B., S.B. was “visibly upset and crying.” Id. at 187. Ms. Thomas also
testified that after the abuse, S.B. became “very introverted,” “leery . . . of new
people,” and “did some cutting for a while.” Id. at 190–91.
Mr. Benton, S.B.’s father, testified about his conversation with S.B. when she
arrived in Oklahoma after disclosing the sexual abuse. Mr. Benton described S.B.’s
demeanor during this conversation as “upset” but also “reserved.” Id. at 486.
c. S.B.’s grandmother
Ms. Waller, S.B.’s grandmother, testified about the barn incident. Ms. Waller
stated that when she walked out to the garden, S.B. ran up to her and said, “Pawpaw
scared me.” Id. at 203. Ms. Waller testified that S.B.’s statement caused Ms. Waller
to become “visibly upset,” and she asked S.B. to explain what happened. Id. But S.B.
did not “divulge any particulars,” and she later said, “You know, I think I really
misunderstood Pawpaw.” Id. at 203–04. Ms. Waller recalled that after this incident,
S.B.’s behavior “seemed really standoffish” and S.B. “didn’t have much to do with
[Mr. Riggs].” Id. at 205.
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d. Investigator Stansill
Investigator Stansill testified about his interview of Mr. Riggs, and the
Government played a redacted audio recording of the interview.5 This recording
included Mr. Riggs’s initial denial and his later admissions that he had touched S.B.
outside and insider her underwear. It also included his statement that S.B. unzipped
his pants and performed oral sex on him, and his concession that S.B. could have felt
like he penetrated her with his hand.
Investigator Stansill further testified that S.B. was not examined by a sexual
assault nurse examiner because the sexual acts had not occurred within the past 120
hours.
e. Kelsey Blevins
The Government called Ms. Blevins to testify about the general characteristics
of child sex abuse victims, particularly their disclosures. Ms. Blevins testified that
she had not interviewed S.B. and did not “know anything about” S.B.’s interviews.
ROA Vol. I at 450.
Ms. Blevins explained that “the process of disclosure has a few phases,”
namely “denial, tentative disclosure, active disclosure, recantation, and
reaffirmation.” Id. at 435. Ms. Blevins also testified that a child may delay disclosing
when “the perpetrator is a family member or even just any other known person to the
5 The parties agreed to exclude some portions of the interview, and the district court additionally ordered some parts excluded.
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child.” Id. at 439. Additionally, she testified that a “child’s mental health” could
cause a delayed disclosure, but “it just kind of depends on each child in each case.”
Id. at 442.
Ms. Blevins also discussed potential inconsistencies and memory gaps in
disclosures. For example, she explained that “younger children or preschool-aged
children . . . typically can’t answer questions regarding time.” Id. at 441. She further
explained that it is “unrealistic” to expect “a child or even an adult” to “remember the
dates of the instances they were assaulted.” Id. at 440. This is particularly true in
“cases of long-term sexual abuse” because “the incidents can run together over time.”
Id. at 441.
Ms. Blevins identified several reasons why a victim of sexual abuse may have
trouble recalling or disclosing the abuse, including “fear,” “guilt,” “shame,”
“institutional blocks,” and a “distrust of authority.” Id. at 446–47.
f. Kathy Bell
The Government called Kathy Bell, a sexual assault nurse examiner, to explain
general procedures for sexual assault examinations. Mr. Riggs objected, contending
Ms. Bell’s testimony was irrelevant because S.B. had not been examined by a sexual
assault nurse examiner. The district court overruled Mr. Riggs’s objection,
concluding the testimony was relevant because it helped explain why an examination
had not occurred.
Ms. Bell testified that sexual assault exams are performed within 72 hours of
the abuse for prepubescent children and within 120 hours for adolescent or
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postpubescent children. She also explained what information and evidence a nurse
collects during the exam, describing the process as “pretty invasive.” ROA Vol. II at
504.
Ms. Bell also addressed misconceptions about hymen tears, explaining that the
hymen will not always tear during sexual intercourse and that hymen tears usually
heal within three to five days. Ms. Bell further testified that a sexual assault exam
would not be done on a fourteen-year-old who disclosed she had been raped nine or
ten months prior. This is because the disclosure occurred outside the timeframe
where there would be DNA evidence or evidence of a possible hymen tear.
4. Verdict
The jury found Mr. Riggs guilty on all four counts. He received a life sentence
and timely appealed his convictions.
II. DISCUSSION
Mr. Riggs argues the district court abused its discretion by allowing S.B. to
testify about uncharged acts of sexual abuse, permitting Ms. Blevins’s testimony, and
permitting Ms. Bell’s testimony. We review the admission of evidence during trial
for abuse of discretion. United States v. Walker, 85 F.4th 973, 979 (10th Cir. 2023).
We address each of Mr. Riggs’s arguments in turn, concluding he has not shown any
abuse of discretion.
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A. Uncharged Acts Evidence
At trial, S.B. testified about six uncharged acts of sexual abuse by Mr. Riggs:
the barn, puzzle, driving, four-wheeler, swimming, and wedding incidents.6 The
district court allowed this evidence under Rules 413 and 414 of the Federal Rules of
Evidence. Mr. Riggs argues the district court abused its discretion by permitting this
evidence because its probative value was greatly outweighed by a danger of unfair
prejudice. We conclude Mr. Riggs has not demonstrated any error.
Rule 413 provides, “In a criminal case in which a defendant is accused of a
sexual assault, the court may admit evidence that the defendant committed any other
sexual assault.” Fed. R. Evid. 413(a). Rule 414 is identical, except it substitutes
“child molestation” for “sexual assault.” Id. at R. 414(a). Evidence admitted under
Rules 413 and 414 “may be considered on any matter to which it is relevant.” Id.; see
also id. at R. 413(a). Thus, Rules 413 and 414 are exceptions to the general rule that
evidence may not be admitted “to show a defendant’s propensity to commit bad
acts.” United States v. Perrault, 995 F.3d 748, 765 (10th Cir. 2021); see also Fed. R.
Evid. 404(a) (generally prohibiting propensity evidence).
For evidence to be admissible under Rules 413 and 414, “it must overcome
several hurdles.” Perrault, 995 F.3d at 765 (internal quotation marks omitted). First,
6 The Government argues we should not consider the four-wheeler, swimming, and wedding incidents as acts of sexual abuse because S.B. provided so little detail about them. Although S.B. provided less detail about these incidents, the clear import of her testimony was that they were additional examples of Mr. Riggs sexually abusing her. We thus consider these incidents in our analysis.
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the district court must determine that (1) the defendant is accused of sexual assault or
child molestation, (2) the proffered acts are evidence the defendant committed
another offense of sexual assault or child molestation, and (3) “the evidence is
relevant.” Id.
Mr. Riggs does not argue these threshold requirements were unmet. Rather, his
argument focuses on the next stage, where “the district court must conduct a Rule
403 balancing test to assess whether the evidence’s probative value is substantially
outweighed by the danger of unfair prejudice.” Id. (internal quotation marks omitted).
This “balancing test proceeds in two phases.” Id.
At the first phase, the district court considers the four Enjady factors: (1) “how
clearly the prior act has been proved,” (2) “how probative the evidence is of the
material fact it is admitted to prove,” (3) “how seriously disputed the material fact
is,” and (4) “whether the government can avail itself of any less prejudicial
evidence.” United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (quoting
Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 Am.
Crim. L. Rev. 57, 59 n.16 (1995)); see also Perrault, 995 F.3d at 765–66. “[N]o
single factor is dispositive.” United States v. Mann, 193 F.3d 1172, 1175 (10th Cir.
1999).
At the second phase, the district court weighs the Enjady factors against the
probative danger of the evidence by considering (1) “how likely is it such evidence
will contribute to an improperly-based jury verdict,” (2) “the extent to which such
evidence will distract the jury from the central issues of the trial,” and (3) “how time
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consuming it will be to prove the prior conduct.” Enjady, 134 F.3d at 1433 (quoting
Sheft, supra, at 59 n.16); see also Perrault, 995 F.3d at 766.
Although courts must conduct the Rule 403 balancing test, exclusion under
Rule 403 “should be used infrequently, reflecting Congress’ legislative judgment that
[Rules 413 and 414] evidence ‘normally’ should be admitted.” Enjady, 134 F.3d at
1433 (quoting 140 CONG. REC. H8992 (daily ed. Aug. 21, 1994) (statement of Rep.
Susan Molinari)); see also United States v. Benally, 500 F.3d 1085, 1090 (10th Cir.
2007) (“Consistent with congressional intent regarding the admission of evidence
tending to show the defendant’s propensity to commit sexual assault or child
molestation, courts are to liberally admit evidence of prior uncharged sex offenses.”
(internal quotation marks omitted)).
Mr. Riggs argues only that the uncharged acts were inadmissible because of
their prejudicial nature. We thus limit our analysis to the Rule 403 balancing test.
1. First Phase: Enjady Factors
Mr. Riggs does not address the third Enjady factor (“how seriously disputed
the material fact is”), so we limit our analysis to the other Enjady factors. See Enjady,
134 F.3d at 1433 (quoting Sheft, supra, at 59 n.16); see also Perrault, 995 F.3d at
766 (considering only factors disputed by the defendant).
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a. How clearly the prior act has been proved
Mr. Riggs argues the uncharged acts were not proved because S.B. could not
recall many of the specifics.7 We agree that S.B. provided little information about the
four-wheeler, swimming, and wedding incidents. Indeed, concerning the four-
wheeler and swimming incidents, S.B. did not testify what alleged sexual act
occurred. And for the wedding incident, she testified only that Mr. Riggs “proceeded
to touch [her].” ROA Vol. II at 127.
However, the other three uncharged acts were proved more clearly. Although
S.B. could not remember some of the details, she testified that Mr. Riggs digitally
penetrated her inside the barn, rubbed her vaginal area while they were doing a
puzzle, and digitally penetrated her while they were driving back from church.
Moreover, there was corroborating evidence. Ms. Waller testified that while
they were gardening, S.B. ran out of the barn and was upset with Mr. Riggs but later
said it was a misunderstanding. Mr. Riggs also brought up an incident at the barn
during his interview, although he stated he did not touch S.B. Nevertheless,
Mr. Riggs admitted to touching S.B.’s vaginal area outside and inside her underwear.
7 The parties litigated the admissibility of the uncharged acts before S.B. testified. Mr. Riggs argued the uncharged acts were inadmissible under Rule 403 because they would inflame and confuse the jury. As S.B. had not yet testified, however, Mr. Riggs did not argue the evidence was inadmissible given S.B.’s inability to recall details. But when S.B. testified and was unable to recall some details, including details supplied in the Government’s proffers, Mr. Riggs did not object or request a limiting instruction. Nevertheless, we consider Mr. Riggs’s argument on appeal concerning S.B.’s memory issues because even considering this argument, we conclude the district court did not err.
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And although he denied that there was ever penetration, he conceded that S.B. “could
have” felt like he “penetrated her.” Id. at 404.
In short, while three of the incidents were not clearly proved, S.B. provided
specifics about the other three incidents, and there was corroborating evidence.
b. Probative value of the uncharged acts
When weighing the probative value of evidence, courts consider “(1) the
similarity of the prior acts and the charged acts; (2) the time lapse between the other
acts and the charged acts; (3) the frequency of the prior acts; (4) the occurrence of
intervening events; and (5) the need for evidence beyond the defendant’s and alleged
victim’s testimony.” Perrault, 995 F.3d at 776 (quotation marks omitted).
Mr. Riggs argues the uncharged acts had “minimal probative value” because
S.B.’s testimony was “vague and crippled by memory issues.” Appellant’s Br. at 23.
Although we agree S.B. provided few details about the four-wheeler, swimming, and
wedding incidents, they still had probative value. That is because S.B.’s recollections
supported the Government’s theory that the abuse was so frequent the incidents
blurred together in S.B.’s memory.
And for additional reasons, the barn, puzzle, and driving incidents had
significant probative value. First, these incidents and the charged acts all involved
vaginal touching or penetration. Second, these incidents and the charged acts all
occurred relatively close together—the barn incident was in the summer of 2013, and
the remaining incidents occurred in 2014. Third and fourth, S.B.’s testimony
demonstrated the vaginal touching occurred with some frequency, and there were not
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any intervening events that diminished the probative value of the acts. And finally,
there was no need for evidence beyond the testimonies of S.B. and Mr. Riggs because
they were the only people involved.
For these reasons, the uncharged acts carried significant probative value.
c. Less prejudicial evidence
Mr. Riggs argues the Government could have availed and did avail itself of
less prejudicial evidence, namely Mr. Riggs’s interview and S.B.’s parents’
testimonies. We disagree.
S.B.’s parents did not witness any of the abuse, so their testimonies would not
have been adequate substitutes. And although Mr. Riggs vaguely admitted to some
touching, he denied any penetration. Thus, his interview could not have substituted
for the uncharged acts involving penetration, namely the barn and driving incidents.
Moreover, Mr. Riggs testified to touching S.B. only three times, so his testimony
would not have substituted for the other acts evidence, which the Government used to
demonstrate the frequency of the abuse. As a result, this factor does not weigh in
Mr. Riggs’s favor.
2. Second Phase: Probative Dangers
Having considered the Enjady factors, the next question is the probative
danger of the evidence. Because Mr. Riggs does not discuss the third probative
danger consideration (“how time consuming it will be to prove the prior conduct”),
we do not address it either. See Enjady, 134 F.3d at 1433 (quoting Sheft, supra, at 59
n.16).
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a. Will the evidence contribute to an improperly based verdict?
Mr. Riggs argues S.B.’s testimony regarding the uncharged acts “is the type of
testimony that arouses emotions.” Appellant’s Br. at 24. However, the danger of an
improperly based verdict was minimal for several reasons.
First, S.B.’s testimony concerning the uncharged acts was less graphic than her
testimony concerning the charged acts. The charged acts included Mr. Riggs inserting
his penis into S.B.’s vagina, digitally penetrating S.B.’s vagina, and ordering S.B. to
put her mouth on his penis. It is unlikely the jury would have overlooked S.B.’s
testimony about these charged acts and instead punished Mr. Riggs for the
comparatively less graphic uncharged acts.
Second, the jury heard Mr. Riggs’s interview, where he made several
inculpatory statements. He admitted to touching S.B. outside and insider her
underwear and stated she “could have” felt like he “penetrated her.” ROA Vol. II at
404. He also admitted there was oral sex but claimed S.B. was the instigator.
Additionally, Mr. Riggs stated that S.B. “probably did want to say no” and agreed
that he “assault[ed]” of his “own free will.” Id. at 402, 408. Given these statements—
combined with S.B.’s testimony about the charged acts—we are not persuaded the
jury convicted Mr. Riggs based on the uncharged acts.
And finally, the district court instructed the jury that although it heard
evidence Mr. Riggs “may have previously committed other offenses of child
molestation,” it could “consider this evidence only if [it] unanimously [found the
evidence] is more likely true than not true.” ROA Vol. II at 543–44. The court further
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instructed the jury that it could not convict Mr. Riggs “simply because [it] believe[d]
he may have committed similar acts in the past.” Id. at 544. We have previously
recognized that limiting instructions like these “can mitigate any potential jury bias
from Rule 414 witnesses.” Perrault, 995 F.3d at 770.
b. Will the evidence distract the jury from the trial’s central issue?
Mr. Riggs argues the uncharged acts were distracting because the jury would
have needed “to consider and decide unanimously the veracity of six additional acts
on top of the four charged counts.” Appellant’s Br. at 25. While the district court
instructed the jury it had to “unanimously find” that the uncharged acts occurred to
consider them, that does not mean the jury needed to unanimously agree the
uncharged acts occurred to convict Mr. Riggs. See ROA Vol. II at 544. The jury
could have just as well decided the uncharged acts were unnecessary to the
conviction.
3. Weighing the Factors
Considering all factors, Mr. Riggs has not shown an abuse of discretion. The
barn, puzzle, and driving incidents were highly probative because they demonstrated
Mr. Riggs’s propensity for molesting S.B. And although S.B. could not provide
details of the four-wheeler, swimming, and wedding incidents, her testimony
supported the Government’s theory that the abuse occurred so frequently that S.B.
struggled to recall specifics. Additionally, none of these incidents carried a
substantial danger of unfair prejudice because the charged conduct was more graphic
and because the district court gave limiting instructions. Finally, with respect to
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Rules 413 and 414 evidence, exclusion “under Rule 403 should be used
infrequently.” Perrault, 995 F.3d at 766 (quotation marks omitted). For these
reasons, the district court acted within its discretion when it concluded the probative
value of the uncharged acts was not substantially outweighed by a danger of unfair
prejudice. Because Mr. Riggs has not shown an abuse of discretion, we do not
consider the Government’s alternative argument that any error was harmless.
B. Kelsey Blevins Testimony
Mr. Riggs next argues the district court abused its discretion by permitting
Ms. Blevins’s testimony concerning the general characteristics of child abuse victims
and child abuse disclosures. He argues Ms. Blevins’s testimony should not have been
allowed because it was not helpful to the jury and only bolstered S.B.’s credibility.8
We conclude Mr. Riggs has not shown an abuse of discretion.
Under Federal Rule of Evidence 702, expert testimony must “help the trier of
fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a).
Mr. Riggs contends Ms. Blevins’s testimony did not help the jury because “the
general characteristics, trauma, mental health, and reporting methods of child victims
of assault all touch on credibility—an issue that the jury can understand without
expert testimony.” Appellant’s Br. at 29–30. But we rejected an identical argument in
8 On appeal, Mr. Riggs does not argue that Ms. Blevins was unqualified to testify or that her methods were unreliable. See Roe v. FCA US LLC, 42 F.4th 1175, 1180–81 (10th Cir. 2002) (explaining that experts must be qualified and their opinions must be reliable) (citing Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)).
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United States v. Parson, 84 F.4th 930 (10th Cir. 2023). There, the defendant argued
that “expert testimony as to the process of child-sex-abuse disclosures and the
characteristics of abused children” was irrelevant. Parson, 84 F.4th at 937. We
disagreed, explaining that the testimony was relevant “because the average juror
often lacks expertise on the characteristics of victims of child sex abuse, particularly
in the process of disclosing such abuse.” Id. at 938.
Additionally, the expert testimony in Parson was relevant because the
defendant sought to discredit the child victim’s testimony based on “delayed
reporting and inconsistencies between her later disclosures and earlier denial.” Id. So
too here. Mr. Riggs attempted to discredit S.B.’s testimony by pointing out her
recantation during the barn incident, various inconsistencies, memory failures, and
late disclosures. Accordingly, like in Parson, Ms. Blevins’s testimony helped the jury
evaluate S.B.’s credibility. See id. at 938–39.
Nevertheless, Mr. Riggs argues that Ms. Blevins’s testimony should have been
excluded because it improperly vouched for S.B.’s credibility. Expert testimony is
improper if it “does nothing but vouch for the credibility of another witness” and thus
“encroaches upon the jury’s vital and exclusive function to make credibility
determinations.” United States v. Charley, 189 F.3d 1251, 1267 (10th Cir. 1999). But
Ms. Blevins did not vouch for S.B.’s credibility. Rather, Ms. Blevins testified that
she had not interviewed S.B. and did not “know anything about” S.B.’s interviews.
ROA Vol. I at 450. Moreover, her testimony was about the disclosure process and
child abuse victims in general. This case is thus like Parson, where we held similar
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testimony was not improper because the expert “did not opine about [the victim’s]
credibility or about whether a crime had been committed,” and testified “she never
spoke with [the victim], had not reviewed any documents relating to [the victim], and
did not know whether [the defendant] molested [the victim].” 84 F.4th at 939.
Mr. Riggs, however, contends this case is distinguishable from Parson because
he is not arguing “for the categorical exclusion sought in Parson.” Reply at 7.
Instead, he argues Ms. Blevins’s testimony was improper because it “was tailored to
address issues that were present in S.B.’s testimony and prior statements.”
Appellant’s Br. at 28. But the expert testimony in Parson also focused on issues
relevant to the victim’s disclosure, and we still held the testimony was not improper
bolstering. See Parson, 84 F.4th at 933–34, 937–39 (describing expert’s testimony
that abused children may delay reporting and have trouble recalling details, and then
explaining the victim made inconsistent, delayed disclosures). Further, Ms. Blevins’s
testimony did not directly track S.B.’s. For example, Ms. Blevins testified about
accidental disclosures, the ability of preschool-aged children to answer questions, and
how children may react if they have previous experience with child welfare or law
enforcement. These topics were not applicable to S.B., so it is inaccurate to say
Ms. Blevins’s testimony was “simply an expert opinion that S.B. was telling the
truth.” Appellant’s Br. at 27. Additionally, given the requirement that evidence be
relevant, we can hardly fault the Government for focusing its questions on topics that
were germane to the issues at trial. See Fed. R. Evid. 402 (“Irrelevant evidence is not
admissible.”).
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Ms. Blevins’s testimony “was limited to describing the general process of
disclosure, the different types of disclosures, and the reasons why disclosures may
vary.” Parson, 84 F.th at 939. The district court thus did not abuse its discretion by
allowing Ms. Blevins’s testimony.
C. Kathy Bell Testimony
Lastly, Mr. Riggs argues the district court abused its discretion by allowing
Ms. Bell to testify about general procedures for sexual assault nurse examinations.
He contends the testimony was irrelevant because S.B. was not medically examined,
let alone by a sexual assault nurse examiner. We disagree.
Evidence must be relevant to be admissible. Fed. R. Evid. 402. “Evidence is
relevant if: (a) it has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining the
action.” Id. at R. 401. Relevance is a low bar. United States v. Jordan, 485 F.3d
1214, 1218 (10th Cir. 2007).
Ms. Bell testified that under the circumstances, a medical exam of S.B. to
collect physical evidence would have been futile. Her testimony thus helped explain
the absence of physical evidence. We have held that “absence-of-evidence testimony”
is relevant. See United States v. Dalton, 918 F.3d 1117, 1132 (10th Cir. 2019)
(concluding district court did not err by permitting the government to call expert
witnesses to testify about a lack of physical evidence).
Here, Ms. Bell’s testimony was relevant because it suggested the absence of an
exam or physical evidence did not unavoidably mean the abuse had not occurred.
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Additionally, Ms. Bell’s testimony made it more likely that Oklahoma conducted a
thorough investigation, thus dispelling potential concerns the case was hastily
brought. See United States v. Tavares, 843 F.3d 1, 7 (1st Cir. 2016) (concluding
expert testimony “suggested that the absence of usable prints did not mean, ipso
facto, that the weapon was never in the defendant’s hands, or that the police work
was shoddy”).
Yet, Mr. Riggs argues this case is different from other absence-of-evidence
cases because here, the Government did not even attempt to look for the absent
evidence. That distinction, however, is not meaningful to the relevance of the
evidence because Ms. Bell’s testimony helped explain why the Government did not
even attempt to gather physical evidence through a medical exam. Mr. Riggs next
argues that Ms. Bell’s testimony was irrelevant because “no issue had been raised to
the jury, either in opening statement, cross-examination, or summation, about the
lack of a sexual assault examination.” Appellant’s Br. at 32. While neither party
raised the issue, the jury could have independently questioned the absence of a
medical exam or physical evidence, and the district court did not abuse its discretion
by allowing the Government to address this potential concern. See United States v.
Feldman, 788 F.2d 544, 554–55 (9th Cir. 1986) (holding absence-of-evidence
testimony was admissible to address “anticipated arguments”).
Additionally, Mr. Riggs argues the evidence was irrelevant because
Investigator Stansill had already testified as to why a medical exam did not occur.
But Investigator Stansill, unlike Ms. Bell, did not testify about the general procedures
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for sexual assault exams and their invasive nature. Nor did Investigator Stansill
discuss general misconceptions about hymen tears. Moreover, the Government could
have determined that it needed a witness with more expertise on sexual assault nurse
examinations than Investigator Stansill.
For these reasons, the district court did not abuse its discretion by allowing
Ms. Bell’s testimony.
III. CONCLUSION
Mr. Riggs has not shown any abuse of discretion in the district court’s
evidentiary rulings. We thus AFFIRM.
Entered for the Court
Carolyn B. McHugh Circuit Judge