88 N.W.2d 806 (1958)
STATE of Iowa, Appellee,
v.
Charles Jesse SLAUSON, Appellant.
No. 49288.
Supreme Court of Iowa.
March 11, 1958.
*807 Henry W. Wormley and Don Hise, Des Moines, for appellant.
Norman A. Erbe, Atty. Gen., Raphael R. R. Dvorak, First Asst. Atty. Gen., Freeman H. Forrest, Asst. Atty. Gen., Ray Hanrahan, County Atty., and Jim I. Myerly, Asst. County Atty., Des Moines, for appellee.
LARSON, Justice.
The sole question for review by this court is whether reversible error was committed when the prosecution exhibited a gun to the jury, when counsel knew that this gun could not be connected with the defendant. The facts are not in dispute. A few minutes before midnight on January 29, 1957, Alfred D. Harlow was the sole attendant at an oil station at Thirty-fourth and University Avenue in Des Moines. Approximately $175 was taken from him by a lone bandit who threatened him with a gun which he described as about six inches long and looked like a forty-five automatic. It might have been a thirty-eight, he couldn't say for sure. He identified the defendant as the person who held him up. There were no other witnesses to the holdup.
Defendant was arrested February 1, 1957, in a tavern after officers said they had received a tip that a man with a gun was present. However, no gun was found. His defense in the trial was one of alibi and he furnished witnesses who placed him with a woman acquaintance in a tavern drinking beer at the time of the holdup.
During the progress of the trial the prosecutor attempted to have Mr. Harlow, the state's principal witness, identify a gun which was marked "Exhibit A". He was asked, "Mr. Harlow, at this time I hand you what is identified as State's Exhibit A for identification purposes and would ask you * * * Could you tell the jury, and for the record, what Exhibit A is?" Defense counsel objected stating, "Let the record show at this time that we object to a display of Exhibit A in the presence of the jury in view of the present state of the record in that it has not been identified as being the property of the defendant or in any way connected with the defendant, and could only be brought into this case at this time and in the present state of the record for the purpose of intending to excite prejudice as far as the jury is concerned, and at this point in the record it's wholly irrelevant, incompetent, and immaterial."
The objection was overruled by the court and Mr. Harlow was then asked, "* * * could you tell us for the purpose of the record what State's Exhibit A is for identification purposes?" Harlow answered, "Well, it looks like the gun that he was using that night. Q. Now, can you state whether or not it is the gun? A. No, I can't state that it is the gun." Defense counsel then said, "At this point we move to strike out the evidence of the witness for the reason that no proper foundation has been laid to show him qualified to testify to Exhibit A, and for the further reason that he has positively stated that he can't state this is the gun, and in the present state of the record there is no connection shown between the defendant and Exhibit A." The court sustained the objection, the state excepted, and defense counsel then said, "We ask that the court caution the jury to disregard this evidence at this stage of the proceedings." Thereupon the court said, "The jury is admonished to disregard *808 any evidence with reference to the gun at this stage of the proceedings as though it had not been produced and exhibited at all." (Emphasis supplied.)
No request was made for a mistrial, but counsel for the state asked for and received a recess to discuss the legal point involved outside the presence of the jury. The record discloses this discussion as follows:
Counsel for the state requested a more full understanding of what the court ruling was with regard to Exhibit A. He stated, "It is not the intent of counsel to introduce Exhibit A into evidence, but I thought I had the right to have Exhibit A marked and have testimony from the witness with regard to Exhibit A for comparative purposes only." The court inquired, "What do you plan to do? Compare with what?" Counsel then said, "The witness stated from the stand * * * that this Exhibit A appeared like the gun that was used that night, and that is the only basis I propose and I do not propose to introduce it into evidence. But I thought I had the right to bring in a piece of property, or in this case Exhibit A, for the witness to compare as to his testimony with regard to physical evidence. * * *" The court then said, "I can't follow that. When the defendant's freedom and liberty is at stake here, for him to conjecture to the fact that this may or may not be the weapon used that particular night to which he testified isn't strong enough as far as this court is concerned to permit it to remain in the jury consideration. Obviously, the State has done what it sought to do by producing a gun which he has said, in the presence of the jury, looked like the one. And you could exclude it from the jury the next 30 hours and they still have that." State's counsel then said, "* * * that was my only purpose, to have something here which represented what the gun appeared like. I never intended to introduce this gun into evidence, nor do I expect to be able to do so. * * * Because some of the members of the jury may have never seen a gun and a gun such as Exhibit A for the purposes of identification. * * * I thought I would have to have it identified for the purposes of the record only, but that was my only idea in bringing the gun in at all." (Emphasis supplied.) The court then ruled, "Unless counsel can show me authority, I must exclude* * * I am afraid of it. Let our witness describe the gun, but let's don't bring something in here that is wholly unconnected * * *."
Thereafter no further reference was made to Exhibit A, but Mr. Harlow described the gun which he said the defendant displayed on the night of the robbery. He said it "looked to me like a 45 automatic. It was about six inches long, I reckon, and about 4 ½ inches high. I don't know a lot about guns, but the only thing I can go by is the size of it. I thought it was a 45 automatic as near as I could tell by looking at it off at a distance. Whether it was a 45 or whether it was a 38 or what it might be, I couldn't say to that for sure. The approximate time the defendant and I were in the office together was just a matter of seconds. He scared me when he told me to come and go with him. I was scared before, but that scared me worse than ever."
From the record we learn the court overruled the defense motion for a directed verdict, and there appear to have been no objections to the court's instructions relative to this matter. The jury found defendant guilty, and the defense motion for a new trial partially based upon the alleged misconduct of the county attorney was overruled. Defendant appeals, contending the misconduct of the county attorney in attempting to introduce evidence relating to the displayed gun, Exhibit A, so prejudiced the jury that it must be held prejudicial error and requires reversal. We cannot agree.
I. Misconduct of the county attorney is not enough alone to require the granting of a new trial, unless his acts or statements appear to have been so prejudicial as to deprive the complaining party of a *809 fair trial. State v. Haffa, 246 Iowa 1275, 1283, 71 N.W.2d 35, and cases cited therein. In announcing that well established rule in State v. Cooper, 169 Iowa 571, 587, 151 N. W. 835, 841, we also said, "The trial court having heard all that took place on the trial, we ought not to interfere with his discretion in refusing a new trial," citing cases. Therefore, unless the acts complained of herein are of such a prejudicial nature as to deprive the defendant of a fair trial, the court's denial of a new trial herein will not be disturbed. While these acts were referred to in the motion for a new trial, we find no effort prior thereto to have the court declare a mistrial. It is defendant's contention that once a gun was exhibited and displayed before the jury, nothing could eradicate the memory of it from the minds of the jury. He complains that it created prejudice of the highest order and prevented the defendant from having a fair trial. It is true that unless it was proven that defendant used a gun in the alleged robbery, the penalty would have been less severe. However, defendant seems to overlook the fact that the witness described the gun he said defendant used in the robbery.
II. The real issue to be resolved in this case is the relevancy of the evidence produced. We search for the probative relationship of the evidence offered to the fact issue in question, which was, did the defendant have a gun. If so, what kind and what did it look like. Obviously, as announced by the trial court, the witness might describe what he saw, and clearly such testimony was relevant and proper.
Relevant evidence, of course, means evidence having any tendency in reason to prove any material matter and includes opinion evidence and hearsay evidence. See Model Code of Evidence, Rule 1(12); Uniform Rules of Evidence 1(12). Also see article on Determination of Relevancy, by Mason Ladd, in Tulane Law Review, Vol. XXXI (1956), pp. 81-90.
It is also true that even though the test of relevancy is met, the offered evidence is subject to the test of policy consideration. As pointed out in Dean Ladd's article referred to above, foremost among these is the danger of undue prejudice. Evidence having a minimum of probative quality and which is highly prejudicial must be excluded. While most all evidence against an adverse party is prejudicial in the sense that it creates a resistance to the success of one party's case, such objections as we found herein are really directed to the contention that the evidence is too remote and prejudicial to be accepted as relevant. Thus the prejudicial aspect becomes important only when the evidence has a minimum of probative quality. It follows, then, that primarily it is for the trial judge to decide, first, whether the offered evidence has some probative force, and second, to balance the value of that evidence as a contribution in the solution of the fact issue against the danger of its prejudicial or wrongful effect upon the triers of fact
Uniform Rule 45 summarizes the policy consideration as follows: "Except as in these rules otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury, or (c) * * *."
Exhibit A, which the witness said was a weapon of the size and type used in the robbery, must be recognized as evidence in the realm of marginal relevancy. While it may have been of some value to test the perception of the witness as to the object in the robber's hand, it was perhaps too remote or collateral to be accepted as proof of the fact in question. It was at least unnecessary, for a description of the gun would suffice. A display of a similar physical object would only tend to emphasize *810 that testimony. The trial court, therefore, was justified in denying the admission of the testimony relating to that exhibit and in striking all reference to it.
We are equally satisfied that the danger of undue prejudice in this instance was not so great as to justify the contention that any reference to it in the presence of the jury prevented the defendant from obtaining a fair trial.
The witness testified that the defendant said: "`Get to the cash register and give me the money and hurry up about it.' I looked and he had what looked like a 45 automatic in his left hand. * * * I was about five feet from him when I first observed the gun on him. He pointed the gun at me." Thus he testified that the object in the robber's left hand was a gun. The probative value of the stricken matter, such as it was, was in the fact that the witness was able to identify the object in the hand of the robber as a 45 automatic which looked like Exhibit A. Any reference to the use of a gun by the defendant was, of course, prejudicial but quite relevant. The additional prejudice when the jury was permitted to see an object that fitted the gun described was slighttoo slight to constitute here any serious danger of undue prejudice. At least we are satisfied that here the increased prejudice, if any, of viewing such a described gun was not so undue or extreme as to amount to a denial of a fair trial to defendant.
III. It must be remembered there was no attempt to identify this gun as the one used in the robbery, nor to infer it was so used. Its only connection was for identification of the object in the robber's hand. The purpose of this testimony or evidence was not that which is usually banned as unacceptable demonstrative evidence in a criminal case, i.e. to infer that the weapon was the one used in the crime. But even in such cases we said recently in State v. Williams, 245 Iowa 494, 505, 62 N.W.2d 742, 748:
"The trial court has considerable discretion in determining the admissibility of demonstrative evidence but great latitude is shown in admitting it and it is usually received if it affords a basis for a reasonable inference on the point in issue."
Furthermore, in the very recent case of State v. Poffenbarger, Iowa, 87 N.W.2d 441, 443, we reviewed generally the rules of evidence on the admissibility of weapons. As a result, it may be said we are now committed to the rule that demonstrative evidence of probative value, which will aid in establishing a fact in issue, is considered relevant and should be carefully considered when its admissibility is challenged. In the Poffenbarger case we overruled as unsound the holding in State v. Concord, 172 Iowa 467, 473-474, 154 N.W. 763, 765, which denied admission of all demonstrative evidence "not shown to have been in the possession of the defendant at any time or to have been in his possession when the burglary was committed," and held the admission into evidence of certain guns found near a spot where defendants were seen was not an abuse of the discretion lodged in the trial court.
A true analyzation of the matter indicates no arbitrary or hard and fast rule is desirable. We cannot assume undue prejudice in all cases where the connection between the demonstrative evidence and the accused is not made clear. Much depends upon the use of such evidence and its purpose as well as its possible interference with the right of an accused to obtain a fair trial. See recent article on Demonstrative Evidence and Expert Opinion, February, 1956, Washington University Law Quarterly.
We conclude here that the trial court acted within its discretion in refusing testimony relating to Exhibit A, but also conclude the reference to it in the presence of the jury prior to the ruling in the manner disclosed did not unduly prejudice the *811 defendant. It was not so far afield of probative value for the purpose proposed to amount to reversible error, especially in view of the fact that the jury was told to disregard it and that there was no request for a mistrial. The court, therefore, correctly found that defendant had secured a fair trial, and denied the motion for a new trial.
Affirmed.
All Justices concur except SMITH, J., not sitting.


736 F.Supp. 698 (1990)
UNITED STATES of America
v.
Henry SAUNDERS.
Crim. No. 90-00074-A.
United States District Court, E.D. Virginia, Alexandria Division.
May 9, 1990.
As Revised May 16, 1990.
*699 W. Neil Hammerstrom, Jr., Asst. U.S. Atty., Alexandria, Va., for U.S.
Drewry B. Hutcheson, Jr., Alexandria, Va., for Henry Saunders.

MEMORANDUM OPINION
ELLIS, District Judge.
Defendant stands accused of rape. The indictment charges that he unlawfully, knowingly, and willingly caused another person to engage in a sex act by using force and threats to place that person in fear of death or serious bodily injury, in violation of 18 U.S.C. § 2241(a). Pursuant to Rule 412(c)(1), Fed.R.Evid., defendant filed the requisite timely Motion for Leave to Offer Certain Evidence Concerning the Victim's Past Sexual Behavior. Specifically, the motion set forth defendant's intention to offer the following evidence:
(1) Defendant's testimony that he had sexual relations with the alleged victim on a number of occasions prior to the alleged rape;
(2) Defendant's testimony, and that of an acquaintance, as to specific occasions on which the acquaintance had sex *700 with the alleged victim and related this fact to the defendant prior to the alleged incident that is the basis of the indictment.
The first category of evidence, according to defendant, is offered on the issue of consent, while the second is offered on defendant's state of mind.[1]
Because these matters fell, in part, within Subdivision (b) of the Rule, the Court held an in camera hearing to determine the admissibility of the evidence. Only the defendant, the alleged victim, and an FBI agent testified. The Court then took the matter under advisement. Thereafter, the Court reopened the Rule 412 hearing, noting that the record did not disclose whether defendant's Rule 412 motion had been served on the alleged victim as required by subsection (c)(1) of the Rule. Also, consistent with In re McDaniel, 861 F.2d 714 (4th Cir.1988) (unpublished opinion), the Court appointed counsel for the alleged victim to ensure that her position would be properly presented and advocated. At the reopened hearing, all counsel, including the alleged victim's counsel, presented arguments, but declined the opportunity to present any additional testimony.
The pertinent facts are easily summarized. Defendant and the alleged victim have known each other since their teen-age years. Defendant testified he had sex with the alleged victim about half a dozen times during the period spanning 1983 to 1987. From 1987 to the alleged incident on February 9, 1990, defendant saw the alleged victim on only a couple of occasions, none of which involved sex. The alleged victim, by contrast, denies ever having had sex with defendant, except on the night of the alleged incident. The alleged victim also testified that at the time of the alleged rape, she was engaged to a man by whom she had borne two children. The FBI agent testified that defendant, when interviewed prior to his arrest, claimed to have had sex with the alleged victim on only two prior occasions.
From the parties' proffers, it appears, not surprisingly, that their versions of the evening's events sharply conflict. Defendant contends that consensual sexual relations occurred at his home early in the evening, coupled with illegal drug use. The alleged victim denies any consensual sex and claims instead that defendant coerced her to have sex with him when he was driving her home. Defendant allegedly accomplished the coercion by driving to a secluded area, brandishing a tool or pipe, grabbing the alleged victim by the throat and threatening her with serious bodily injury unless she submitted.
At the first in camera hearing, defendant called an acquaintance as a witness. The acquaintance's testimony, distilled to its essence, was that in the week prior to the alleged incident, the acquaintance had consensual sexual relations with the alleged victim over a three-day period and told defendant about it before the alleged incident. Defendant claims this testimony should be admitted because it bears on his state of mind. The alleged victim denied ever having had sex with the acquaintance.
This, then, is the factual record before the Court in connection with defendant's Rule 412 motion. At the outset, it is important to note that the Court declines the government's invitation to resolve the motion by making witness credibility judgments or by rejecting certain inferences invited by arguably ambiguous testimony. For example, the government attacked the credibility of defendant's acquaintance and urged the Court to conclude that the witness' testimony that "I had her" and "I had her home for three days" did not necessarily mean that sexual relations occurred. The government also attacked defendant's credibility by presenting the FBI agent's testimony concerning defendant's prior inconsistent statement regarding the number of instances of sex defendant had with the alleged victim in the past. Although the government ultimately abandoned this line of argument, its invalidity is worth confirming. *701 Except perhaps in extreme circumstances, not present here, courts are not free to make Rule 412 rulings on the basis of credibility judgments. Those judgments are for the jury or ultimate factfinder. Instead, courts must consider and resolve issues under Rule 412 without regard to whether a jury or factfinder will ultimately accept or reject all or part of the testimony.[2] Nor may courts considering a Rule 412 motion reject inferences reasonably permitted by the testimony or resolve testimonial ambiguities to foreclose such inferences. These, too, are the province of the jury. With this as background, the Court turns next to an analysis of the knotty Rule 412 issues presented in the case at bar.

Analysis
Analysis appropriately begins with recognition of Rule 412's policy underpinnings. Fundamental to Rule 412 is the notion that the law protects women[3] from forced sexual contact and that this protection extends to all persons even though their past sexual behavior or reputation suggests they are less than virtuous. Put succinctly, the law recognizes that even women of easy virtue may also be victims of rape and deserve the full protection of the law. Too often, rape trials have wrongly focused on the past sexual behavior and promiscuous reputation of alleged victims, as if to say to the jury that such persons, as a result of their past sexual behavior or reputation, cannot validly withhold consent. See e.g., S. Maxwell, Criminal Procedure 248 (1896) ("The previous conduct of the prosecutrix, as to whether or not she had connection with other men, is a proper subject of inquiry, as tending to show a want of chastity, and therefore that she would be more likely to consent than a virtuous woman ...")[4] Rule 412 flatly rejects this notion; instead, it recognizes that whether a woman has consented once or myriad times, and whether she has done so for love or money, she is, in any event, entitled by law to be free from nonconsensual sexual contact. A woman's past behavior, however unchaste, confers on no one a license to commit rape.
At the same time, however, Rule 412 also recognizes the perplexing ambiguities that often surround rape allegations. Accordingly, the Rule recognizes that there may be special circumstances where the alleged victim's past sexual behavior may play a role in ascertaining whether the crime of rape occurred. To this end, the rule carves out two specific exceptions. The first pertains to evidence of the alleged victim's past sexual behavior with the accused offered solely on the issue of consent. The second concerns evidence of the victim's past sexual behavior with other persons and is limited to those cases where it is relevant to whether the accused was the source of semen or injury to the alleged victim. Even evidence falling within the two exceptions may not be admissible if the court determines that it is not relevant or that its probative value is outweighed by its unfair prejudicial effect. See Rule 412(c)(3). Finally, quite apart from the two special exceptions, Rule 412 necessarily recognizes that the admissibility of certain evidence may be constitutionally mandated even if neither exception applies. Thus, analysis under Rule 412 appropriately begins with a consideration of whether the proffered evidence falls within either of the two exceptions of the Rule. If so, the Court must still examine the evidence to *702 determine whether it is relevant and whether its probative value outweighs the danger of unfair prejudice. The evidence is admissible if it falls within the exceptions and its probative value outweighs the danger of any unfair prejudicial effect it may have. But, even if the evidence does not fall within the Rule's two exceptions, the court must still consider whether its admissibility is constitutionally required. Finally, in this Circuit, Rule 412 is not a bar to evidence of the alleged victim's past sexual behavior where that evidence is offered to show the accused's state of mind. But even in this event, admissibility still hinges on whether the evidence passes muster under Rule 403, Fed.R.Evid. See Doe v. United States, 666 F.2d 43 (4th Cir.1981). With this blueprint for analysis in mind, the Court turns next to an examination of the two categories of evidence offered by defendant in this case.

A. The Alleged Victim's Past Sexual Behavior With Defendant

Defendant's offer of proof concerning his past sexual relations with the alleged victim falls squarely within one of the Rule's exceptions. It is evidence of the alleged victim's "past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which rape or assault is alleged." Rule 412(b)(2)(B).
But the analysis does not end here; the Court must go on to consider whether evidence of a sexual relationship some three years prior to the alleged rape is relevant to consent and, if so, whether the probative value of this evidence outweighs the danger of its unfair prejudicial effect.
The government argues that evidence of a sexual relationship three years in the past is too remote in time to be probative on the consent issue presented here. Put simply, the government argues that just because she may have consented three years ago does not mean she consented on the night in question. There is some force in this argument. Although Rule 412 does not include an explicit timeliness requirement, it seems clear that the temporal element must be taken into account in the weighing process called for in subsection (c)(3). Evidence of an isolated consent to engage in sex with an accused some ten years in the past would likely have no probative value, and more than a little potential for unfair prejudice. By contrast, evidence of consent to sex that is in closer proximity to the alleged rape may be very probative, as in the case of a recent or ongoing intimate relationship. From this, it follows that the application of Rule 412 must include a consideration of the temporal element. Legislative history confirms this. As one Congressman put it,
... In determining the admissibility of such evidence, the court will consider all of the facts and circumstances surrounding the evidence, such as the amount of time that lapsed between the alleged prior act and the rape charged in the prosecution. The greater the lapse of time, of course, the less likely it is that such evidence will be admitted.
124 Cong.Rec., p. H 11944 (October 10, 1978, remarks of Rep. Mann). This result is also consistent with many state rape shield statutes, including Virginia's.[5]See Va.Code 1950, § 18.267.7; see also Graves v. Garraghty, 618 F.Supp. 1348 (E.D.Va.1985) (alleged sexual contact between defendant and alleged victim occurring five to six years prior to the alleged rape was not "reasonably proximate to the offense," as required by the Virginia statute). Commentators, too, support this result. See e.g., 23 C. Wright and K. Graham, Federal Practice and Procedure § 5389, pp. 603-4 (1980) (while Rule 412 does not contain a timeliness provision, "courts will undoubtedly take the temporal element into account in weighing the probative worth of the evidence.")[6]
*703 Given the relevance of the temporal element, the question here is whether alleged consensual relations three years prior to the alleged incident has probative value that outweighs the danger of unfair prejudice. This is a manifestly close question, but the Court ultimately concludes that the evidence should be admitted as having some probative value on the consent issue, but little, if any, risk of unfair prejudice. Defendant's claim of a prior sexual relationship with the alleged victim is central to the consent defense. Defendant's version of consensual sex at his home earlier in the evening is far more plausible in light of his claim of a prior relationship with the alleged victim. To be sure, the three-year period in issue here is certainly quite close to the indistinct boundary between some probative value and none. Evidence of a consensual relationship ten years in the past falls plainly on the non-probative side of the border. But at three years, the Court believes that in today's society the scale of probative value tips somewhat in the other direction. Also, the danger of unfair prejudice seems slight, if any. In today's society, evidence of a prior relationship with defendant does not, by itself, carry with it the pejorative implications of promiscuity and easy virtue. In this instance, the defendant will claim it, the alleged victim will deny it and the jury, as with the alleged rape itself, must decide whom to believe. Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974) (the jury is the "sole judge of the credibility of a witness.").
The constitutional perspective also points persuasively to admissibility. Rule 412 explicitly recognizes that evidence cannot be excluded in derogation of an accused's constitutional rights. Evidence otherwise excluded by the Rule must nonetheless be admitted if "constitutionally required." Rule 412(b), (c); see also Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Although the Rule provides no guidance as to the meaning of the phrase "constitutionally required," it seems clear that the Constitution requires that a criminal defendant be given the opportunity to present evidence that is relevant, material and favorable to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) (to establish 6th Amendment violation, defendant must show that he was precluded from offering evidence "material and favorable to his defense.") (footnote omitted); Washington v. Texas, 388 U.S. 14, 16, 87 S.Ct. 1920, 1921-22, 18 L.Ed.2d 1019 (1967) (6th Amendment violation occurs when defendant is arbitrarily deprived of "testimony ... relevant and material, ... and vital to the defense."); United States v. Dorsey, 16 M.J. 1, 5 (C.M.A.1983) ("criminal accused has the right to present evidence which is relevant, material, and favorable to his defense.") (citations omitted). The evidence offered here of defendant's prior sexual relationship with the alleged victim meets this test; it is relevant and material to his case and quite plainly favorable. In sum, therefore, defendant's evidence of his prior sexual relationship with the alleged victim is admissible on the issue of consent as provided for in Rules 412(b)(1) and (b)(2)(B). Admitting this evidence strikes a proper balance between protecting rape victims from humiliation or unfair loss of credibility as a result of public disclosure of their prior sexual activities and preserving an accused's right to present relevant, exculpatory evidence. See J. Weinstein, Weinstein's Evidence § 412-10 (1989); J. Tanford & A. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544 (1980).

B. The Alleged Victim's Past Sexual Behavior With Others

The proffered evidence of the alleged victim's prior sexual behavior with defendant's acquaintance is not controlled by Rule 412. It is not evidence of "past sexual behavior with persons other than the accused ... upon the issue of whether *704 the accused was or was not, with respect to the alleged victim, the source of semen or injury." Rule 412(b)(2)(A). As such, it is "ordinarily inadmissible under Federal Rule of Evidence 404." United States v. Driver, 581 F.2d 80, 81 (4th Cir.), cert. denied, 439 U.S. 987, 99 S.Ct. 582, 58 L.Ed.2d 660 (1978) (citing McLean v. United States, 377 A.2d 74, 77-78 (D.C.App. 1977)). But a different result obtains where, as here, the evidence is offered instead, ostensibly, to show defendant's state of mind. Doe v. United States, 666 F.2d 43, 48 (4th Cir.1981) teaches that Rule 412 was not intended to exclude evidence of an alleged victim's past sexual behavior with others "when offered solely to show the accused's state of mind."[7] The admissibility of such evidence, according to Doe, is governed by "the Rules of Evidence dealing with relevancy in general." Id.
The government argues that Doe is wrongly decided and should not be followed. Because the evidence is ultimately inadmissible on Rules 402 and 403 grounds, it is unnecessary to reach the merits of this argument[8] or, as a threshold matter, to consider whether the argument is properly addressed to this Court.
Close scrutiny of the evidence offered by defendant's acquaintance reveals its lack of probative value as well as its circumstantial potential for unfair prejudice. Defendant's claim that this evidence helps illuminate his state of mind in any relevant way is wholly unpersuasive. Nowhere does plaintiff describe precisely what the proffered evidence discloses about his state of mind. Evidence establishing that in the week prior to the alleged incident defendant learned that his friend and the alleged victim had recently engaged in consensual sex over a three-day period seems, at most, to suggest that defendant's state of mind toward the alleged victim was that she was a woman of easy virtue. Such state of mind is neither relevant, nor exculpatory. In proscribing rape, the law makes no distinction based on an alleged victim's virtue or lack of virtue. It matters not whether a rape victim has chosen in life to follow Mother Teresa's inspiring example or the less uplifting examples of Catherine the Great[9] or Polly Adler[10].
In sum, the knowledge of his friend's alleged recent consensual sex with the alleged victim illuminates nothing relevant about the defendant's state of mind on the night of the alleged rape. Significantly, however, such evidence is fraught with the danger of unfair prejudice because it suggests to the jury that the alleged victim is promiscuous and therefore not worthy of either belief or protection from rape. Such a suggestion is flatly contrary to law and unfairly prejudicial. This point was put well by the Eighth Circuit in a decision cited by the Fourth Circuit in Doe:
Evidence of a rape victim's unchastity, whether in the form of testimony concerning her general reputation or direct or cross-examination testimony concerning specific acts with persons other than the defendant, is ordinarily insufficiently probative either of her general credibility as a witness or of her consent to intercourse with the defendant on the particular occasion ... to outweigh its highly prejudicial effect.
*705 Doe, 666 F.2d at 47 (citing United States v. Kasto, 584 F.2d 268 (8th Cir.), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979)).[11]
It is worth noting that a different result might obtain in cases where an alleged victim's prior sexual behavior bears directly on defendant's state of mind with respect to a disputed issue of consent. For example, evidence that defendant knows that an alleged victim has shown a preference for combative sex in her prior sexual relationships with others, may be relevant in a case where the issue of consent is clouded by defendant's contention that he reasonably interpreted an alleged victim's protestations and struggles as invitations rather than denials of consent. Of course, nothing of the sort is alleged to have occurred here. On the contrary, this is a case where evidence of an alleged victim's alleged past sexual relationship with one other person, even though known to defendant, sheds no relevant exculpatory light on defendant's state of mind, but instead has the effect of unfairly prejudicing the jury against the alleged victim. Accordingly, the Court concludes the evidence of the alleged victim's alleged consensual sexual relationship with defendant's friend is inadmissible.
Of course, nothing in this Memorandum Opinion, or in the Order that has issued, is intended to limit evidence the parties may wish to offer for a proper purpose, including impeachment. Finally, in accord with Doe, the Court notes that the alleged victim has the right to appeal an adverse Rule 412 ruling. See Doe, 666 F.2d at 46 ("Without the right to immediate appeal, victims aggrieved by the court's order will have no opportunity to protect their privacy from invasions forbidden by [Rule 412]".)
For the reasons stated herein, defendant's Rule 412 motion is GRANTED in part and DENIED in part. An appropriate Order has issued.
NOTES
[1]  Such specificity of purpose is clearly required by the Rule. United States v. Nez, 661 F.2d 1203 (10th Cir.1981) (evidence of complainant's past sexual behavior held inadmissible under Rule 412 where defendant failed to establish a proper purpose.)
[2]  One commentator suggests that Rule 412(c)(2) risks infringing on defendants' jury trial right because it may require judges to make credibility determinations as a predicate for determining the relevance of offered evidence. G. Joseph and S. Saltzburg, Evidence in AmericaThe Federal Rules in the States § 412-5 (1987). No such infringement occurred in this case.
[3]  The law protects men as well, as it refers generically to "person." 18 U.S.C. § U.S.C. § 2241(a); see also J. Weinstein, Weinstein's Evidence § 412-12 (1989) ("While some of the Congressional discussion suggests that the bill protects only female victims, the bill itself is stated generally to protect male victims of rape where such a crime has been charged."). But since the victim in the instant case is a woman, the discussion here refers only to female victims.
[4]  It is illuminating that the Court has found no similar statements asserting the lack of credibility of promiscuous men by virtue of their promiscuity.
[5]  For a summary of state rape shield statutes, see J. Tanford & A. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544 (1980).
[6]  In an explanatory footnote, Wright & Graham go on to note the following:

Obviously the victim's willingness to engage in sex with the defendant at some remote time is less probative of her consent than would be an incident two months before. However, even short time periods may sharply reduce probative value if there are other intervening events; e.g., the victim has now married or entered a nunnery.
Id. at 604.
[7]  But see, United States v. Dorsey, 16 M.J. 1 (1983) (admitting extrinsic evidence of alleged victim's sexual behavior with defendant's roommate to show alleged victim's ashamed state of mind as motivation for lodging rape complaint against defendant.)
[8]  The government argues that Doe's state of mind exception to the Rule 412 prohibition is an exception that swallows or eviscerates that salutary prohibition. It is easy, the government contends, to invoke this exception and thereby gain admission of an alleged victim's reputation through the back door after Rule 412 has closed the front door. Although these arguments are not without some force, the Fourth Circuit doubtless intends careful application of the state of mind exception to ensure that it is not used to avoid the Rule.
[9]  W. Durant and A. Durant, Rousseau and Revolution 444-446 (1967).
[10]  P. Adler, A House is Not a Home (1953).
[11]  Although Kasto was decided before Rule 412 was promulgated, it continues to be cited as authoritative in the application of the Rule. The Kasto court firmly rejected the contention that an accused has a constitutional right to elicit all evidence of a victim's prior sexual behavior. Kasto held that the Constitution limits that right to relevant evidence. 584 F.2d at 272.


132 Ariz. 416 (1982)
646 P.2d 301
CITY OF SCOTTSDALE, Plaintiff-Appellee,
v.
CHURCH OF THE HOLY CROSS LUTHERAN, an Arizona corporation, Defendant-Appellant.
No. 1 CA-CIV 4995.
Court of Appeals of Arizona, Division 1, Department B.
April 6, 1982.
Rehearing Denied May 12, 1982.
Review Denied June 15, 1982.
*417 Richard Filler, Scottsdale City Atty. by Patrick E. Burke, Asst. City Atty., Scottsdale, for plaintiff-appellee.
Machmer, Schlosser & Meitz, Ltd. by Robert H. Schlosser and Robert E. Siesco, Jr., Phoenix, for defendant-appellant.
OPINION
JACOBSON, Presiding Judge.
The major issue in this appeal is whether a landowner is entitled, in a condemnation proceeding, to damages based upon the thwarting of its future plans involving the remainder of its property following a partial taking.
This action was commenced by the appellee, City of Scottsdale, (City) seeking to condemn 2.765 acres belonging to appellant, Church of the Holy Cross Lutheran (Church). Following an uncontested hearing which determined that the City's taking was one of "public use and necessity" the only matter remaining to be litigated was the amount required to be paid by the City *418 to compensate the Church for the taking. This issue was tried to a jury.
Immediately prior to trial, the City sought by a motion in limine to prohibit the Church from introducing evidence as to the future anticipated use of the remaining property insofar as that evidence would form the basis of severance damages. The court granted this motion.
During trial, the Church moved to strike the testimony of the City's appraiser on the basis that it did not comply with the "economic unit" theory of appraising. This motion was denied. In addition, the trial court refused to instruct the jury on this same "economic unit" theory of appraisal. The jury found that the fair market value of the taken property was $22,120.00 and judgment was entered for the Church in this amount. Following the denial of various post-trial motions, the Church has appealed.
The Church's property before the taking consisted of 6.698 acres and was located on the west side of Hayden road just south of Osborn road in the City of Scottsdale. The west 2.765 acres of this property lies within the 100 year flood plain of Indian Bend Wash, a tributary of the Salt River. Prior to this condemnation action, the City had passed various zoning ordinances limiting improvements on property within the flood plain and use of this property was restricted to "parking and recreational use." The City, in its development of a "green belt" along the banks of Indian Bend Wash sought to condemn all property lying within the flood plain, including the 2.765 acre portion belonging to the Church (hereinafter referred to as the "subject property"). At the time this action was filed in 1974, the subject property was unimproved.
The balance of the Church's property, consisting of approximately 3.933 acres (hereinafter referred to as the "remainder" property), was improved with several buildings consisting of a fellowship hall of approximately 6,000 square feet; administration and school buildings of approximately 8,060 square feet; and the remainder of the property was utilized for parking.
At the time of trial, the sole issue as to the fair market value of the subject property was basically fought on the testimony of two appraisers: Robert L. Blake, testifying for the Church and Veldon Naylor, testifying for the City. Both of these appraisers agreed that the highest and best use of the entire property was as "church property" and that the highest and best use for the subject property was for parking.
Mr. Blake's opinion was that there existed a unity of use between the subject property and the remainder and thus the entire parcel would not constitute "separate economic units." Mr. Blake defined "separate economic units" to mean "a portion of a property that can be used in and of itself and by itself. Can be used profitably." It was Mr. Blake's theory that since the subject property and the remainder did not constitute separate economic units, different unit values could not be ascribed to them. Based upon this theory, Mr. Blake opined that the fair market value of all the property in an unimproved state was $20,000 per acre. Applying this value to the 2.765 acres of the subject property, it was Mr. Blake's opinion that the subject property had a fair market value of $55,000.
Mr. Naylor, the City's appraiser, on the other hand, was of the opinion that because a portion of the entire property was within the flood plain of Indian Bend Wash, it had a value less than the remainder property. Based upon this approach, Mr. Naylor opined that the fair market value of the subject property was $5,750 per acre or a total fair market value of $15,898.75. The Church moved to strike this testimony on the grounds that since Mr. Naylor was unable to testify that the subject property and the remainder property constituted "separate economic units," as a matter of law, this opinion testimony subscribing different values to the property was incompetent. The trial court denied this motion. In addition, the trial court refused the Church's instruction which would have required the jury to determine whether the entire property constituted a "single unit" and that "the proper method of valuing the part taken on the defendant's case is on a per *419 unit value if you find that there was a unity of use between the part taken from each of the defendants and their remaining property and if it is not a separate economic unit."
During trial, and in response to the granting of the City's motion in limine, the Church made an offer of proof concerning the future use of the remainder property. This offer showed that since 1963, the Church had planned to use a portion of the remainder property to build a sanctuary building in an area presently utilized for parking; that such a future expanded use of the remainder property would require the utilization of the subject property for parking to compensate the loss of the parking caused by the expansion; and that by reason of the taking of the subject property, these expansion plans were thwarted. Mr. Blake would have testified that due to the inability of the Church to utilize all of the property, the remainder suffered severance damages in the sum of $23,000. The trial court refused to allow this evidence to be placed before the jury.
The Church on appeal basically contends that the trial court erred in refusing to adopt its "severance damages" theory and its "economic unit" theory. We will first discuss the severance damage issue.
The Church's basic argument dealing with the admissibility of its future plans for the remainder  the contemplated building of a sanctuary  is that such evidence goes to the issue of "highest and best use" and that the highest and best use of the property is the development of the unpaved parking lot for sanctuary purposes. From this premise, the Church argues that its expert should then be allowed to testify that the thwarting of these plans resulted in severance damages to the remainder.
The problem with this analysis is that it mixes two different theories: The admissibility of future use to determine the highest and best use of the condemned property and thus establish a fair market value and the thwarting of future plans as to the remainder. The concept that the present use to which a condemned premise is being put does not necessarily determine its fair market value is aptly stated in State v. Jay Six Cattle Co., 88 Ariz. 97, 102, 353 P.2d 185, 188 (1960), quoting from County of Maricopa v. Paysnoe, 83 Ariz. 236, 319 P.2d 995 (1957):
A valuation which does not take into consideration the highest use would not be the fair market value and therefore would not be just compensation. * * * An owner who is making only a minor use of premises cannot be deprived of its value for a major use if that major use goes to a higher market value.
Also see 4 Nichols on Eminent Domain § 12.314 (3rd Ed., 1951) (Recompilation, 1978).
Here there is no dispute that the Church was making the "highest and best use" of its property  utilizing it for church purposes  or that the subject property had a use other than for parking in connection with the Church's operation. The valuation testified to by both appraisers was based upon this actual use. The offered testimony did not go to a use other than that presently contemplated by both appraisers, for example a commercial use, but rather went to an expanded utilization within the recognized highest and best use and frustration of that proposed expansion.
Thus, the proper question before the court was not whether the evidence was admissible on the issue of highest and best use, but rather whether the thwarting of a contemplated use of the remainder is a proper element of severance damages. In this regard, it is important to keep in mind that where only a part of the property is taken, the measure of severance damages is the difference between the market value of the remainder before and after the taking. Pima County v. DeConcini, 79 Ariz. 154, 285 P.2d 609 (1955). "Market value" in this context generally means what the property would bring on the open market assuming a willing buyer and a willing seller. City of Tucson v. El Rio Water Co., 101 Ariz. 49, 415 P.2d 872 (1966). Thus, market value consists of all those elements which either an owner or a prospective buyer could reasonably *420 urge as affecting the fair market price of the property. Andrews v. Cox, 127 Conn. 455, 17 A.2d 507 (1941).
However, condemnation is not concerned with special damages to the landowner arising from loss of profits or loss of future expectations concerning the property. For this reason, a loss of a particular future contemplated use by the owner is normally not admissible as an element of damages. As has been stated:
[T]here can be no allowance for enhanced damage which an owner "would suffer by reason of being prevented from carrying out a particular scheme of improvement, existing only in contemplation at the time of the trial."
People v. La Macchia, 41 Cal.2d 738, 264 P.2d 15, 24 (1953).
However, evidence of proposed uses of the property, assuming it was reasonably contemplated, may be admissible, not to show an enhanced loss because the owner is prohibited from carrying out the particular use, but to show adaptability of use of the land for that purpose to establish a market value.
In other words, it is not value in use, either actual or prospective, to the owner that is involved, but value in exchange  market value  that is the test.
Daly City v. Smith, 110 Cal. App.2d 524, 243 P.2d 46, 51 (1952).
It is clear that the state's motion in limine sought only to preclude testimony concerning the sanctuary plans insofar as such testimony dealt with "enhanced" or "special" damages arising from the frustration of these plans. As the motion in limine states:
Plaintiff, CITY OF SCOTTSDALE, moves the Court, in limine, for an order prohibiting the introduction of evidence by defendant, or reference in any manner during the course of trial, to enhanced or special damages arising from frustration of any plans that defendant, CHURCH OF THE HOLY CROSS LUTHERAN, may have had for expansion or reconstruction of improvements on the subject property prior to the date of valuation, October 4, 1976, in this matter.
Under the authority cited above, it is clear that based upon the testimony sought to be excluded for the purposes stated in the motion, the trial court properly granted this motion.
The Church on appeal, however, argues that the scope of the trial court's order granting the motion in limine precluded any evidence concerning a decrease in the market value of the remainder by reason of its underutilization. The City on the other hand, argues that the scope of the trial court's order was limited to the purposes stated in its motion. Unfortunately, the arguments on the motion are not included in the record on appeal.
However, assuming that the Church's position on the scope of the trial court's order is correct, the trial court did not err in excluding evidence concerning the underutilization of the property based upon future developments of the property. We reach this conclusion based upon the offer of proof, which included two depositions of the Church's officers  the president and a member of the finance committee.
Counsel for the Church conceded that the expansion plans in question were formulated in the early 1960's but had not been acted upon "pending such financial resources and the like...." The Church President, when asked when the proposed construction would take place, responded that he "[didn't] know if there ever was a date." The finance committee member testified that while the proposed expansion was always considered an eventuality, there was no time table for the project.
In short, this testimony failed to present evidence from which the jury could have found that there was a reasonable probability that the Church's development plans would come to fruition within the reasonably foreseeable future. Absent such proof, evidence of plans for future development is too speculative and remote to form the basis of finding market value at the time of taking. See 4 Nichols on Eminent Domain, *421 supra, Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934); United States ex rel. T.V.A. v. Powelson, 138 F.2d 343 (4th Cir.1943) (evidence must show "reasonable probability" of owner's plans being realized in the "reasonably near future"); Dist. of Columbia v. Lot 813 in Square 568, 232 F. Supp. 714 (D.D.C. 1964): City of Los Angeles v. Geiger, 94 Cal. App.2d 180, 210 P.2d 717 (1949); Dept. of Conservation v. Aspegren Fin. Corp., 47 Ill. App.3d 118, 5 Ill.Dec. 312, 361 N.E.2d 635 (1977).
In fact, the R.A.J.I. instruction referred to by counsel in his offer of proof encompasses the limitation that the jury must only consider future "reasonable uses to which the property may be put [in the foreseeable future."]
We therefore hold that if the trial court's order in limine precluded evidence going to market value based upon future use of the property, such an order was proper as the future use was too speculative to form the basis of a jury determination of market value.
We now turn to the Church's "economic unit" theory. This theory basically is that unless the part taken has an "economic" use separate and apart from the remainder, then "`[t]he land taken must be valued as a portion of the tract of which it is a part and not as if it stood alone.'" Deer Valley Industrial Park Development & Lease Company v. State ex rel. Herman, 5 Ariz. App. 150, 155, 424 P.2d 192, 197 (1967) quoting from A. Jahr, Eminent Domain § 103 (1953). This argument continues that in the absence of "separate economic units" the court must apply the average unit value in all situations.
While the legal principle that "the land taken must be valued as a portion of the tract of which it is a part" is a sound proposition, the conclusion that this is based upon an economic unit determination is not sound.
The basic legal proposition is founded upon the premise that generally the value of the taken premises is determined by the value of the whole property in the "before" situation, that is the undesirable portions are valued with the desirable portions to arrive at an overall value. See Deer Valley Industrial Park, supra.
However, this "artificial averaging unit value" must, in a particular case give way to the realities of the use to which the property may be utilized. Thus, as pointed out in Defnet Land & Investment Co. v. State ex rel. Herman, 103 Ariz. 388, 442 P.2d 835 (1968) it is error to value the land taken on the basis of an artificial average unit value unless the reality of the case requires such a valuation. As was stated in Tucson Title Insurance Co. v. State ex rel. Herman, 15 Ariz. App. 452, 454, 489 P.2d 299, 301 (1971):
It may be that the part taken is the most valuable part of the land and to reduce its value by averaging it with less desirable land would result in awarding the landowner less than just compensation.
The converse is also true: That if the land taken is less valuable than the remainder, averaging its value with the more desirable property would result in the landowner obtaining a windfall and more than just compensation.
In this case the realities are that the land taken lies in the flood plain of Indian Bend Wash; the uses to which it can be put were limited; that because of these limitations, it was less desirable from a market value standpoint than the remainder of the property which did not suffer from such limitations on use. Under these circumstances, the trial court did not err in refusing to instruct the jury on an "averaging" theory or in refusing to strike the testimony of an expert who recognized this market reality.
For the foregoing reasons, the judgment of the trial court is affirmed.
WREN, J., and B. MICHAEL DANN, Superior Court Judge, concur.
NOTE: The Honorable B. MICHAEL DANN, Maricopa County Superior Court Judge, was authorized to participate by the *422 Chief Justice of the Arizona Supreme Court pursuant to Arizona Const. art. VI, § 3.


     Case: 16-40817   Document: 00513972053       Page: 1   Date Filed: 04/28/2017

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                   No. 16-40817                            FILED
                                                                       April 28, 2017
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

             Plaintiff–Appellee,

v.

CECILIO ANTONIO BROCA-MARTINEZ,

             Defendant–Appellant.

                Appeal from the United States District Court
                     for the Southern District of Texas

Before KING, JOLLY, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Defendant–Appellant Cecilio Broca-Martinez appeals the district court’s
denial of his motion to suppress. While on patrol in December 2015, Officer
Juan Leal began following Broca-Martinez’s vehicle because it matched a
description Homeland Security agents had provided the Laredo Police
Department (“LPD”). Officer Leal stopped Broca-Martinez after a computer
search indicated the vehicle’s insurance status was “unconfirmed.” The stop
led to the discovery that Broca-Martinez was in the country illegally and that
he was harboring undocumented immigrants at his residence. Broca-Martinez
entered a conditional guilty plea to one count of conspiracy to transport
undocumented aliens in violation of 8 U.S.C. § 1324. On appeal, he contends
    Case: 16-40817    Document: 00513972053    Page: 2   Date Filed: 04/28/2017

                                No. 16-40817
that there was no reasonable suspicion justifying the initial stop. Because we
find there was reasonable suspicion, we AFFIRM.
                             I. BACKGROUND
      On December 2, 2015, Broca-Martinez was stopped by Officer Leal in
Laredo, Texas. That day, Homeland Security Investigations (“HSI”) received a
tip that undocumented immigrants were being housed at a residence on
Zacatecas Avenue in Laredo. While surveilling the residence, HSI agents saw
two men leave and enter a gray Nissan Altima. HSI subsequently notified the
LPD to have its officers “be on the lookout” for the vehicle. After receiving a
radio transmission to “be on the lookout” for this vehicle, Officer Leal saw an
Altima that matched the description. He followed the vehicle and entered its
license plate number into an “in-vehicle computer” database designed to return
vehicle information such as insurance status. The computer indicated the
insurance status was “unconfirmed.” Based on his experience using this
system, Officer Leal concluded that the vehicle was likely uninsured—a
violation of Texas’s driver financial responsibility law. Official Leal then
stopped the vehicle. After being stopped, Broca-Martinez gave his name to
Officer Leal and admitted he was in the United States illegally. While they
waited for HSI agents to arrive, Officer Leal issued Broca-Martinez a citation
for violating the insurance requirement and driving without a license.
      When HSI agents arrived, they interviewed Broca-Martinez. The agents
obtained verbal consent from Broca-Martinez to search the Zacatecas Avenue
residence, where fourteen undocumented immigrants were being sheltered. On
December 22, 2015, Broca-Martinez was indicted by a grand jury on three
counts of conspiring to harbor illegal aliens in violation of 8 U.S.C. § 1324.
Broca-Martinez filed a motion to suppress evidence on January 25, 2016. He

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                                      No. 16-40817
argued there was no reasonable suspicion justifying the initial stop and that
the exclusionary rule barred all evidence obtained as a result of the stop. 1
       Officer Leal testified to the following at a hearing on the motion to
suppress: At the time of the stop, Leal knew the radio-transmission instruction
involved a Homeland Security investigation but was unaware of any details.
Upon seeing a vehicle that matched the given description, he ran the “license
plates through what is called the NCIC/TCIC system, which gives a return on
the vehicle, make, model, [and] year” as well as “a VIN number” and “a
confirmation to see if the vehicle is insured.” Officer Leal has in the past
“performed multiple traffic stops for vehicles not having insurance” and was
familiar with the Texas law requiring drivers to have liability insurance. Leal
did not stop the vehicle because of Broca-Martinez’s undocumented status—a
fact he did not know—but because he believed Broca-Martinez was uninsured.
He explained that when he types a license plate number into the NCIC/TCIC
system, it will either report “insurance confirmed” or “unconfirmed,” and after
getting a response he knows, “with the knowledge and experience of working,”
whether the vehicle is uninsured.
       During the stop, Officer Leal did not ask for proof of insurance. He stated
that he “already knew that the vehicle wasn’t insured” based on the
“unconfirmed” status generated by the computer. However, the district court
questioned why Officer Leal did not seek to confirm the computer’s report,
asking specifically whether “reports are sometimes inaccurate.” Broca-
Martinez responded: “For the most part, no.” Later, Broca-Martinez’s attorney
pressed Officer Leal on the “unconfirmed” status:

       1 In a separate motion, Broca-Martinez raised a Miranda violation. The district court
denied both motions to suppress. However, Broca-Martinez does not address the Miranda
issue in his brief.

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                                  No. 16-40817
      Q: Officer Leal, you said that the information you got on the insurance
      is that it was unconfirmed?
      A: Yes.
      Q: So, in other words, he could have or not have insurance, correct?
      A: No.
      Q: It’s unconfirmed?
      A: Yes.
      The district court denied Broca-Martinez’s motion to suppress. Broca-
Martinez entered a conditional plea to one count of conspiracy to transport
undocumented aliens in violation of 8 U.S.C. § 1324. Broca-Martinez preserved
his right to appeal the district court’s denial of his motion to suppress. On June
8, 2016, Broca-Martinez was sentenced to twelve months and one day
imprisonment. He timely appealed.
           II. STANDARD OF REVIEW AND JURISDICTION
      “In reviewing a district court’s denial of a motion to suppress, we review
the district court’s findings of fact for clear error and its conclusions of law de
novo.” United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005).
“Whether an officer had reasonable suspicion to support a stop is treated as a
question of law.” United States v. Castillo, 804 F.3d 361, 364 (5th Cir. 2015).
Nonetheless, this Court views the evidence “in the light most favorable to the
prevailing party in the district court—in this case, the Government.” Id. The
district court had jurisdiction under 18 U.S.C. § 3231, and this Court has
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                               III. DISCUSSION
      Under Texas law, “[a] person may not operate a motor vehicle in [Texas]
unless financial responsibility is established for that vehicle through” either a
“motor vehicle liability insurance policy” or other means such a surety bond, a
deposit, or self-insurance. Tex. Transp. Code Ann. § 601.051. Violating this
statute is a misdemeanor. Id. § 601.191. At issue in this case is whether Officer

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                                      No. 16-40817
Leal had reasonable suspicion that Broca-Martinez was in violation of this
statute. 2
       The Fourth Amendment protects individuals against warrantless
searches and seizures. U.S. Const. amend. IV. It “applies to seizures of the
person, including brief investigatory stops such as the stop of the vehicle here.”
United States v. Cortez, 449 U.S. 411, 417 (1981). When a vehicle is stopped,
the officer “must have a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” Id. at 417–18. This “reasonable
suspicion exists “when the officer can point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant the search and seizure.” Lopez-Moreno, 420 F.3d at 430. And while the
officer must have more than a “mere hunch” that the person stopped is engaged
in illegal activity, “reasonable suspicion need not rise to the level of probable
cause.” Id. Indeed, it requires only “‘some minimal level of objective
justification’ for making the stop.” Castillo, 804 F.3d at 367 (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989)).
       We have not yet addressed whether a state computer database indication
of insurance status may establish reasonable suspicion. However, several other
circuits have found that such information may give rise to reasonable suspicion
as long as there is either some evidence suggesting the database is reliable or
at least an absence of evidence that it is unreliable.
       In United States v. Cortez-Galaviz, 495 F.3d 1203 (10th Cir. 2007), the
Tenth Circuit encountered similar facts and affirmed the denial of a motion to
suppress. Id. at 1204. In that case, a Drug Enforcement Agency agent stopped
a vehicle after inputting its license plate information into a computer database

       2Broca-Martinez acknowledges that the only reason for the stop was a traffic violation
and that Officer Leal “had no information regarding any suspicion of any criminal activity by
the passengers” in the vehicle.
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                                    No. 16-40817
and receiving     the   following    notification:   “INSURED/Not Found:          AS
OF/9/30/2005 Recommend request proof of insurance.” Id. The court found this
information was “particularized and objective” and “suggestive of a traffic
violation.” Id. at 1206. While acknowledging that the message “did not as
definitively indicate criminal activity as a ‘no’ response,” it also did not “equate
to an exculpatory ‘yes,’ and the suggestive ambiguity of the particularized and
objective information [the officer] had at hand justified his decision to warrant
a brief traffic stop.” Id. Like Broca-Martinez, the defendant in Cortez-Galaviz
argued that the stop was not justified because there were alternative means of
complying with the state insurance law. Id. at 1207. But the Tenth Circuit
found that argument “overstate[d] the requirements for reasonable suspicion
under the Fourth Amendment.” Id; see also United States v. Miranda-
Sotolongo, 827 F.3d 663, 669 (7th Cir. 2016) (“Reasonable suspicion . . . does
not require the officer to rule out all innocent explanations of what he sees.”).
Additionally, although the defendant in Cortez-Galaviz challenged the
reliability of the computer database, the court found limited evidence of
unreliability, especially when viewed in the light most favorable to the
government. 495 F.3d at 1208.
      By contrast, the Tenth Circuit reached a different conclusion in United
States v. Esquivel-Rios, 725 F.3d 1231 (10th Cir. 2013), where there was
evidence the database was unreliable. In that case, a Colorado state trooper
stopped a vehicle after inquiring into the validity of its temporary registration
tag. Id. at 1234. Even though the tag “looked genuine,” the trooper “called in
the tag number to a dispatcher who soon replied ‘that’s a negatory on record,
not returning.’” Id. The trooper stopped the vehicle solely based on that
information and found illegal drugs after obtaining consent for a search. Id. at
1234–35. On appeal, the Tenth Circuit found this case distinguishable from
Cortez-Galaviz and other cases in which “the record suggested no reason to
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                                       No. 16-40817
worry about the database’s reliability.” Id. at 1235. Here, the dispatcher
provided critical testimony that “Colorado temp tags usually don’t return,”
which the court regarded as “a piece of evidence our cases haven’t confronted
before: evidence admitted by a district court suggesting that the database on
which the officer relied to justify his stop might bear a real problem.” Id.
(emphasis in original).
       Cases from the Seventh, Sixth, and Eighth Circuits confronting similar
fact patterns are generally consistent with the reasoning in Cortez-Galaviz and
Esquivel-Rios. See Miranda-Sotolongo, 827 F.3d at 671 (finding reasonable
suspicion established when the database showed no vehicle registration record,
“at least in the absence of evidence that [the officer] could not reasonably rely
on the absence of a registration record to support an investigative stop”);
United States v. Sandridge, 385 F.3d 1032, 1036 (6th Cir. 2004) (concluding
there was reasonable suspicion for a stop when license plate check three weeks
prior had indicated the driver was driving without a valid license); United
States v. Stephens, 350 F.3d 778, 779 (8th Cir. 2003) (holding that when
database check showed license plates were “not on file,” there was reasonable
suspicion to stop the vehicle). 3
       Broca-Martinez relies only on state court cases to support his argument.
See Gonzalez-Gilando v. State, 306 S.W.3d 893, 896–97 (Tex. App.—Amarillo

       3  A district court in Texas also recently found reasonable suspicion for a vehicle stop
when a computer database search returned an “unconfirmed” insurance status. United States
v. Vela, No. 2:15-CR-429, 2016 WL 305219, at *1–2 (S.D. Tex. Jan. 25, 2016). In that case, an
officer typed the vehicle’s license plate into a Mobile Data Terminal (“MDT”) to determine
insurance status and received the “unconfirmed” notification. Id. at *1. At a hearing on the
motion to suppress, two officers “testified that they regularly use[d] the MDT to determine if
a vehicle is insured, and such a search will result in either a ‘confirmed’ or an ‘unconfirmed’
insurance status.” Id. They further testified that “[i]n their experience, 80% to 85% of the
vehicles that have an ‘unconfirmed’ insurance status do not have valid insurance” and that
while “unconfirmed” occasionally means the vehicle was insured very recently, the database
was generally accurate and reliable. Id.
                                              7
     Case: 16-40817      Document: 00513972053         Page: 8    Date Filed: 04/28/2017

                                      No. 16-40817
2010, pet. ref’d) (finding database information insufficient to establish
reasonable suspicion because there was no “evidence developing the source of
the information comprising the database, explaining what was meant when
insurance information was unavailable, . . . [or] illustrating the accuracy of the
database”); State v. Daniel, 446 S.W.3d 809, 815 (Tex. App.—San Antonio 2014,
no pet.); Contraras v. State, 309 S.W.3d 168, 173 (Tex. App.—Amarillo 2010,
pet. ref’d). 4 But although states may “impos[e] more stringent constraints on
police conduct than does the Federal Constitution,” this does not dictate our
Fourth Amendment analysis. California v. Greenwood, 486 U.S. 35, 43 (1988).
Even so, Broca-Martinez’s case is distinguishable from Gonzalez-Gilando;
here, there was testimony regarding Officer Leal’s experience with the
database and suggesting the system was reliable.
       We agree with the other circuits that have confronted this question. A
state computer database indication of insurance status may establish
reasonable suspicion when the officer is familiar with the database and the
system itself is reliable. If that is the case, a seemingly inconclusive report such
as “unconfirmed” will be a specific and articulable fact that supports a traffic
stop. Lopez-Moreno, 420 F.3d at 430. Viewed in the light most favorable to the
government, Officer Leal’s testimony provides sufficient support for the
reliability of the database. Officer Leal explained the process for inputting
license plate information, described how records in the database are kept, and
noted that he was familiar with these records. He explained that “with the

       4 Notably, some unpublished state court opinions have declined to follow Gonzalez-
Gilando and favor the government’s position. See Swadley v. State, No. 02-15-00085-CR, 2016
WL 7241564, at *6 (Tex. App.—Fort Worth Dec. 15, 2016, no pet.) (mem. op., not designated
for publication); Tellez v. State, No. 09-10-00348-CR, 2011 WL 3925627, at *3 (Tex. App.—
Beaumont Aug. 14, 2011, no pet.) (mem. op., not designated for publication); Short v. State,
No. 09-10-00489-CR, 2011 WL 3505611, at *3 (Tex. App.—Beaumont Aug. 10, 2011, no pet.)
(mem. op., not designated for publication).

                                             8
    Case: 16-40817    Document: 00513972053     Page: 9   Date Filed: 04/28/2017

                                 No. 16-40817
knowledge and experience of working,” he knows the vehicle is uninsured when
an “unconfirmed” status appears because the computer system will either
return an “insurance confirmed” or “unconfirmed” response. When Broca-
Martinez’s attorney questioned the system’s reliability, Officer Leal confirmed
that it was usually accurate. (“Q: So, in other words, he could have or not have
insurance, correct? A: No.”) (“Q: You asked him for his insurance? A: Not that
I recall. I already knew that the vehicle wasn’t insured.”) (“Q: I mean reports
are sometimes inaccurate, right? A: For the most part, no.”).
      Even if Officer Leal was not positive Broca-Martinez was uninsured, he
cleared the bar for reasonable suspicion. An officer does not have to be certain
a violation has occurred. See Castillo, 804 F.3d at 366. “This would raise the
standard for reasonable suspicion far above probable cause or even a
preponderance of the evidence, in contravention of the Supreme Court’s
instructions.” Id.
                             IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the denial of Broca-Martinez’s
motion to suppress and AFFIRM Broca-Martinez’s conviction and sentence.

                                       9


Affirmed as modified; Opinion Filed June 17, 2019.

                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-01066-CR

                        SHARON HENNINGTON TAYLOR, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 203rd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F17-20861-P

                              MEMORANDUM OPINION
                           Before Justices Myers, Molberg, and Carlyle
                                    Opinion by Justice Carlyle

       A jury convicted appellant Sharon Hennington Taylor of manslaughter and assessed

punishment at three years’ imprisonment. In a single issue on appeal, appellant contends the trial

court erred by refusing to grant a mistrial after the State introduced “false testimony of an

extraneous offense.” The State asserts in a cross-issue that this Court should modify the trial court’s

judgment to reflect the correct “Statute for Offense.” We affirm the trial court’s judgment as

modified in this memorandum opinion. See TEX. R. APP. P. 47.4.

                                           I. Background

       Appellant was charged by indictment with murdering her husband, Don Taylor. An agreed

pretrial motion in limine precluded the State from mentioning to the jury several “extraneous”
matters, including “[h]eroin overdose of [appellant’s] previous husband or death of previous

husband.”

       At trial, the State published to the jury a video recording of appellant’s police interview

shortly after Don’s death. During the interview, appellant stated (1) she and Don had been arguing

throughout the day; (2) after running errands, she returned home at about 6 p.m.; (3) as she sat on

a sofa in the den watching a movie, Don yanked her up, dragged her to the foyer, threw her to the

floor, straddled her, told her “I’m gonna kick your ass,” and “tried” to hit her; (4) she broke free

of him, went to the kitchen, took out a loaded handgun they kept in a kitchen cabinet, and returned

to the foyer, where Don was standing; and (5) she told Don “you’re not gonna hit me” and fired a

single shot at him, which killed him. The jury found appellant guilty of the lesser included offense

of manslaughter.

       During the punishment phase of trial, Noreen Gaston testified for the defense. She stated

she has known appellant for more than forty years and they are best friends. On cross-examination,

Gaston stated appellant’s first husband was Ronald Lane. Gaston testified,

       Q. And where is Mr. Lane today?
       A. He’s deceased.
       Q. Do you know the circumstances of his death?
       A. Yes.
       ....
       Q. What happened to him?
       A. He was murdered.
       Q. He was murdered?
       A. Yes. I think—yes.
       ....
       Q. Do you know if anybody was ever prosecuted for his murder?
       A. I can’t recall.

       On re-direct examination of Gaston, defense counsel stated, “Noreen, the man that you said

was murdered, do you think that he might have died of a heroin overdose, did you ever hear that?”

Gaston replied, “It was drug related.”

                                                –2–
       Outside the jury’s presence, defense counsel moved for a “mistrial as to punishment” based

on “prosecutorial misconduct.” Defense counsel stated, “[W]e would show that the State

improperly elicited a response from a witness as the cause of death of one of Sharon’s prior

husbands. There was no 404(b) notice and, in fact, . . . we believe the record shows that the State

knew—knew or had a good faith knowledge or belief that the cause of death was an accidental

heroin overdose.” In response, the State asserted it had “no malicious intent” and any error was

inadvertent and curable. The trial court stated it would review the transcript and make a ruling

after a one-day holiday recess.

       When the trial’s punishment phase resumed two days later, defense counsel (1) introduced

into evidence Lane’s death certificate, which described his cause of death as “toxic effects of

heroin,” and (2) contended the State’s purported misconduct “resulted in the due process violation

of the defendant’s right to a fair trial” because it “affected the minds of the jury.” The trial court

denied appellant’s motion for mistrial.

       The jury charge (1) allowed for a sentence of two to twenty years and the option to suspend

appellant’s sentence and place her on community supervision, and (2) instructed the jury, “[Y]ou

will find as a matter of fact that Ronald Lane died of a heroin overdose and that it was an accidental

death. You will further find that no foul play was ever suspected regarding the death of Ronald

Lane.” During closing, defense counsel stated that the instruction regarding Lane’s cause of death

was “the most important sentence in this jury charge.”

                                       II. Denial of mistrial

       “A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class of

highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.

2009). Whether an error requires a mistrial is determined by the particular facts of the case. Ladd

v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “A mistrial is required only when the improper

                                                 –3–
question is clearly prejudicial to the defendant and is of such character as to suggest the

impossibility of withdrawing the impression produced on the minds of the jurors.” Id. We review

a trial court’s ruling on a motion for mistrial for an abuse of discretion, upholding the trial court’s

ruling if it was within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292

(Tex. Crim. App. 2010). “Ordinarily, a prompt instruction to disregard will cure error associated

with an improper question and answer.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App.

2000). “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be

required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

        To preserve a complaint at trial, the traditional and preferred procedure is to (1) make a

timely, specific objection, (2) request an instruction to disregard if the prejudicial event has already

occurred, and (3) move for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).

A party may skip the first two steps and request a mistrial. Unkart v. State, 400 S.W.3d 94, 99

(Tex. Crim. App. 2013). But he will be entitled to a mistrial only if a timely objection would not

have prevented, and an instruction to disregard would not have cured, the harm flowing from the

error. Id.

        Appellant contends “[a] new trial must be ordered to correct error by the trial court in

failing to grant a mistrial where curative instruction was insufficient to cure the prosecution’s

improper introduction of false testimony.” Appellant argues (1) “[t]he insinuation that Appellant

had committed a previous murder is the type of suggestion that can never be fully eliminated from

consideration”; (2) the prosecution “elicited the false testimony characterizing [Lane’s] death as a

murder and left that impression, which percolated in the jurors’ minds over a two-day period, until

the jury was instructed to disregard it,” and (3) “[a]lthough the Appellant was eligible for

probation, she received a three-year sentence.”

                                                  –4–
        The trial judge instructed the jury to find Lane’s death was accidental and “no foul play

was ever suspected.” During closing, defense counsel emphasized that instruction’s importance.

We generally presume jurors followed the trial judge’s instructions. Coble, 330 S.W.3d at 292

(citing Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009)). Nothing in the record

suggests otherwise. See Artecona v. State, No. 05-09-01283-CR, 2011 WL 1288674, at *3 (Tex.

App.—Dallas Apr. 6, 2011, pet. ref’d) (not designated for publication) (affirming denial of mistrial

where nothing in record suggested jury would have reached different verdict absent witness’s

improper reference to extraneous offense). We conclude the trial court did not abuse its discretion

by denying appellant’s motion for mistrial. See Coble, 330 S.W.3d at 292; Ocon, 284 S.W.3d at

884; see also Barney v. State, 698 S.W.2d 114, 124–25 (Tex. Crim. App. 1985) (concluding

witness’s improper answer that violated defendant’s motion in limine was cured by jury

instruction).

                                      III. State’s cross-issue

        We have the authority to correct the judgment of the court below to make the record speak

the truth when we have the necessary information to do so. See Bigley v. State, 865 S.W.2d 26,

27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas

1991, pet. ref’d); see also TEX. R. APP. P. 43.2(b). Although the record shows the jury convicted

appellant of manslaughter, the trial court’s judgment describes the “Statute for Offense” as “19.02

Penal Code,” which pertains to murder. See TEX. PENAL CODE § 19.02. In its cross-issue, the State

contends this Court should modify the trial court’s written judgment to correctly reflect that the

“Statute for Offense” is penal code section 19.04, which pertains to manslaughter. See id. § 19.04.

We modify the trial court’s judgment to state that the “Statute for Offense” is “19.04 Penal Code.”

                                                –5–
                                         IV. Conclusion

       We decide against appellant on her issue and in favor of the State on its cross-issue. We

(1) modify the trial court’s judgment to state that the “Statute for Offense” is “19.04 Penal Code”

and (2) affirm the trial court’s judgment as modified.

                                                             /Cory L. Carlyle/
                                                             CORY L. CARLYLE
                                                             JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
181066F.U05

                                               –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 SHARON HENNINGTON TAYLOR,                            On Appeal from the 203rd Judicial District
 Appellant                                            Court, Dallas County, Texas
                                                      Trial Court Cause No. F17-20861-P.
 No. 05-18-01066-CR         V.                        Opinion delivered by Justice Carlyle.
                                                      Justices Myers and Molberg participating.
 THE STATE OF TEXAS, Appellee

         Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to state that the “Statute for Offense” is “19.04 Penal Code.”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 17th day of June, 2019.

                                                –7–