## Facts

- Anthony Damian Azure lived with his common-law wife and her children, including Wendy Lozensky, age ten, in Indian country.
- Azure was charged under federal law with carnal knowledge of a female under sixteen based on allegations that he sexually abused Wendy, including on or about December 8, 1984.
- Wendy testified Azure had abused her since she was eight and described forced sexual acts on December 8, including attempted intercourse and oral sex.
- Wendy’s sisters testified they had seen Azure take Wendy into his bedroom when their mother was away and corroborated Wendy’s account of the December 8 events.
- On December 8, after Azure and Wendy’s mother went out drinking and separated, Azure returned angry and intoxicated, struck Wendy causing a bloody nose, and took her home.
- Wendy later identified Azure as the abuser to a social worker.
- A physician examined Wendy and found physical signs consistent with sexual abuse, including a vaginal-wall laceration; Wendy also tested positive for gonorrhea.
- Before retrial, Azure sought to introduce evidence that Wendy had a sexual relationship with another boy to suggest an alternate source of injury/disease and to impeach her credibility; Wendy denied the relationship, while the boy admitted several instances of nonviolent, consensual sex over roughly 18 months.
- The district court excluded the prior-sex evidence under Federal Rule of Evidence 412, admitted Wendy’s out-of-court identification to the social worker, and allowed the government to use excerpts of Azure’s prior sworn testimony from the first trial as rebuttal.
- After a first conviction was reversed due to improper expert testimony on the victim’s credibility, Azure was convicted again at retrial and appealed the evidentiary rulings.

## Issues

1. Whether the district court erred under Federal Rule of Evidence 412 by excluding evidence of the child victim’s prior sexual behavior offered to show an alternative source of injury/disease and to attack credibility.
2. Whether the district court erred by admitting the victim’s out-of-court identification of Azure to a social worker.
3. Whether the district court erred by admitting excerpts of Azure’s prior sworn testimony from the first trial as rebuttal evidence at retrial.

## Decision

- The Eighth Circuit affirmed the conviction.
- The court held the Rule 412 exclusion was within the district court’s discretion because the proffered evidence did not sufficiently connect to the specific, recent injuries and posed substantial prejudice.
- The court held that any error in admitting the out-of-court identification was harmless because the victim testified and was cross-examined and the identification was cumulative of strong corroborated evidence.
- The court held admitting excerpts of Azure’s prior sworn testimony in rebuttal was not an abuse of discretion where used to contradict a defense account on a material factual point.

## Legal Principles

- Federal Rule of Evidence 412 generally bars evidence of an alleged victim’s prior sexual behavior; admission requires a concrete and direct connection to a permitted purpose (such as source of injury or disease), not speculation.
- When prior sexual-behavior evidence is offered as an alternate-source explanation, the trial court may exclude it if its probative value is weak relative to the risk of unfair prejudice and jury distraction.
- Erroneous admission of an out-of-court identification does not require reversal when the declarant testifies at trial, is subject to cross-examination, and the statement is cumulative in light of corroborating evidence.
- A defendant’s prior sworn testimony from an earlier proceeding may be admitted at retrial as rebuttal or impeachment, subject to relevance and the trial court’s discretion.

## Conclusion

The Eighth Circuit upheld Azure’s retrial conviction, concluding the district court properly excluded speculative prior-sex evidence under Rule 412, any improper admission of the victim’s prior identification was harmless given live testimony and corroboration, and excerpts of Azure’s earlier sworn testimony were permissible rebuttal.


United States v. Azure, 845 F.2d 1503 (8th Cir. 1988)