United States v. Harry

• Decision Date: 29 February 2016
• Docket Number: No. 14–2160.,14–2160.
• Citation: 816 F.3d 1268
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Myron Jim HARRY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

816 F.3d 1268

UNITED STATES of America, Plaintiff–Appellee,
v.
Myron Jim HARRY, Defendant–Appellant.

No. 14–2160.

United States Court of Appeals, Tenth Circuit.

Feb. 29, 2016.

816 F.3d 1271

John F. Moon Samore, Law Office of John Moon Samore, P.C., Albuquerque, NM, for Defendant–Appellant.

James R.W. Braun, Assistant United States Attorney (Damon P. Martinez, United States Attorney), United States Attorney's Office, Albuquerque, NM, for Plaintiff–Appellee United States of America.

Before HARTZ, GORSUCH and PHILLIPS, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Myron Harry appeals his conviction of sexual assault at the home of friends while the victim was sleeping after a party. He challenges his conviction on three grounds.

The first challenge relates to text messages between Defendant and one of his hosts immediately after the assault. All but one of his messages were used against him at trial. None of the host's messages, however, were presented by the government. Defendant claims that his right to due process was violated by the failure to preserve text messages sent to him by the host, whose cell phone had been provided to officers as evidence. We reject the claim because the messages were not apparently exculpatory before they were lost, in retrospect they were not exculpatory, and the district court properly found that the officers had not acted in bad faith.

The other two challenges relate to the district court's grant of the government's pretrial motion in limine to exclude any evidence that the victim flirted with Defendant during the party. Defendant claims that the district court improperly excluded from trial one of his text messages, which, he argues, indicated that the victim had been flirting with him during the party. We reject the claim because the court correctly held that the text message was hearsay and the rule of completeness did not require that it be admitted to explain the other messages. Defendant also claims that the district court improperly excluded flirting testimony from any witness other than Defendant himself. We reject the claim because there is no evidence that Defendant was prejudiced by the ruling. He made no proffer of what evidence could have been admitted, probably because there was none. Although he took the stand in his own defense at trial, he did not testify about any flirting; and

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the only other person present at the party who had been asked about flirting (at a pretrial hearing) denied that it had occurred. The court's order granting the motion in limine invited Defendant to reopen the issue at trial, but he did not do so.

Finally, we reject Defendant's claim that his sentence was substantively unreasonable.

I. BACKGROUND

Most of the relevant facts were undisputed at trial. On May 5, 2010, Defendant attended a party at the apartment of Stephanie Johnson and her boyfriend Dimitri Sanisya. Among the guests were Elysia Murphy and the victim (Victim). Defendant was a good friend of Mr. Sanisya but had not known Victim.

Because the guests were drinking, the hosts allowed them to spend the night, designated a bedroom for the women, and assigned the male guests to the living room. Ms. Murphy retired to the women's bedroom at about 2 a.m. Later Victim joined her, lying down next to her on an air mattress.

About 5 a.m., Mr. Sanisya fell, creating a loud noise that woke Ms. Johnson. When she checked to see what had happened, she saw that Defendant and Mr. Sanisya were drunk and still awake. She told them to go to bed. Defendant went to lie down in the living room. He testified that he then decided to go home and went to the bedroom of Mr. Sanisya and Ms. Johnson to say that he was leaving. At that point Ms. Johnson got up to use the bathroom. She testified that on her way she opened the door to the women's bedroom, saw Ms. Murphy and Victim (and a third friend) sleeping within, and closed and locked the door. She then went on to the bathroom.

According to Defendant, when Ms. Johnson went to the bathroom he "decided to check on [Victim]" to "let her know I was leaving" and entered the women's bedroom. R., Doc. 251 at 52–53. His manner of entry is disputed. He testified that the door was unlocked. But other evidence suggested that he took an employee name tag from a drawer in the apartment and used it to breach the locked door.

At trial Defendant gave the following account of what happened after he entered: He approached Victim but before he could explain to her that he was going to go home, she grabbed him and pulled him closer. The two began kissing and Victim grabbed his belt buckle, trying to remove it. She lowered her panties, and Defendant pulled down his pants and positioned himself to have intercourse with her on the air mattress.

This activity awoke Ms. Murphy. Seeing Defendant on top of Victim, who appeared to be asleep, she said to Defendant: "What are you doing? Get out." R., Doc. 251 at 58. Victim testified that she "woke up with somebody on top of me and kissing me" and having intercourse with her and that "before I knew it" Ms. Murphy woke up and told Defendant to leave. R., Doc. 250 at 16. Although Defendant testified that he was unsure whether he had actually begun intercourse, DNA results from Victim corroborated her statement.

Defendant apologized, pulled up his pants, and left the bedroom to go to the bathroom. On his way out of the bathroom he was confronted by the women, who had been discussing what had happened and began "screaming and shouting" at him. R., Doc. 251 at 60. They told him to go. He apologized and left.

The commotion awoke Mr. Sanisya, who was informed of the events by the other guests. He then began to exchange text messages with Defendant. Only the messages sent by Defendant are available; those sent by Mr. Sanisya have been lost.

816 F.3d 1273

Navajo Nation Investigator Jefferson Joe first interviewed Defendant on May 12, six days after the incident. At the interview Defendant said that he knew he was being questioned because of "allegations that [he] raped a person." R., Doc. 250 at 243. He told Joe that he never entered the women's bedroom. During the interview Joe first learned that Defendant had exchanged text messages with Mr. Sanisya after the assault. Defendant did not at that time indicate that he had sent any exculpatory messages. He told Joe:

They got my keys, and I finally got in my car, and I was sitting there for a while, then my friend, Dimitri, was texting me, and telling me, "How could you do this? I was your friend. How could you do this to me?" And I was like, "What did I do, Dimitri?"

"[Victim]—or somebody said you raped [Victim]. You know, [Ms. Murphy] said she saw you."

I said, "Okay." And I was confused and I was drunk, sometimes I don't know what to think. I was thinking like was it midnight or not (inaudible). It's just that point in time where I was out. And I don't know what was going on. All I remember was waking up at that time and helping these girls take Dimitri to his room.

So I was texting him back, and I told him, I said, "Well, I'm sorry for what I did. And I don't know what happened, but if [Victim] said I raped her, then I don't know, I'm not going to say nothing about that. Just tell her that I'm sorry, and I'm not in my right mind," I told him that.

R., Doc. 236 at 53–54. Joe made no effort to examine Defendant's phone.

Nine days later, on May 21, Joe went to Mr. Sanisya's apartment to ask him about the text messages. During the interview Mr. Sanisya did not say anything tending to exculpate Defendant. The two looked at the texts on Mr. Sanisya's phone. Unlike more modern phones, which display incoming and outgoing messages in a single conversation view, Mr. Sanisya's phone had a separate inbox and outbox for incoming and outgoing text messages. There is conflicting evidence about whether Mr. Sanisya's outgoing messages were still on his phone on May 21. Mr. Sanisya testified at the pretrial suppression hearing that when he and Joe looked at his phone, both sides of the text-message exchange were there. Joe testified that he did not see Mr. Sanisya's outgoing messages. The district court, reasoning that Joe likely did not recall viewing Mr. Sanisya's messages because his investigative focus was on the messages sent by Defendant, found that Mr. Sanisya's testimony was accurate.

Joe collected Mr. Sanisya's phone that day and stored it as evidence. From that phone, investigators recovered the following "inbox" text messages from Defendant to Mr. Sanisya just after the assault (the timing of each message as recorded by the cellular network is added in brackets):

1. "Whats going on? Im lost!"¹ [5:36 a.m.]

2. "Im sorry 4 what I did. I didnt want 2 disrespect u in ur home. Thats all I can say. Im sorry." [5:53 a.m.]

3. "Ok. I know u dnt. Ill guess I have 2 accept the charges. I still love u guys though." [6:05 a.m.]

4. "Ok. Im sorry." [6:15 a.m.]

816 F.3d 1274

5. "I knw. Im sorry." [6:23 a.m.]

6. "I knw. She was all over me the whole nite. I remember that." [6:29 a.m.]

7. "Well tell bean [a nickname for Victim] that Im sorry n That I am

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