U.S. v. Kenyon

• Decision Date: 11 February 2005
• Docket Number: No. 04-1182.,04-1182.
• Citation: 397 F.3d 1071
• Parties: UNITED STATES of America, Appellee, v. Ronald Gene KENYON, also known as Ronald G. Bingen, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

397 F.3d 1071

UNITED STATES of America, Appellee, v. Ronald Gene KENYON, also known as Ronald G. Bingen, Appellant.

No. 04-1182.

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2004.

Filed: February 11, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Assistant Federal Public Defender, Edward G. Albright, argued, Pierre, SD, for appellant.

Assistant U.S. Atty., Mikal G. Hanson, Pierre, SD, for appellee.

Before SMITH, BEAM, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

A jury convicted Ronald Kenyon of three counts of aggravated sexual abuse of A.L., a child under the age of twelve, in violation of 18 U.S.C. §§ 1153, 2241(c), 2246(2)(A), and 2246(2)(D), and two counts of abusive sexual contact with A.L., in violation of 18 U.S.C. §§ 1153, 2244(a)(1), 2241(c), and 2246(3). On appeal, Kenyon contends that there was insufficient evidence to support his convictions. Alternatively, he argues that a new trial is required because hearsay testimony of a physician's assistant was improperly admitted under Federal Rule of Evidence 801(d)(1)(B), and evidence regarding A.L.'s prior knowledge of the male anatomy was improperly excluded. Because we agree with Kenyon's objection to the disputed hearsay testimony, we reverse and remand for further proceedings.

I.

A.L. was born on March 28, 1992. Since infancy, she has been in the legal custody of Robin LaRoche and Dale Middletent, whom A.L. refers to as her parents. Robin has two daughters, one of whom is Mona LaRoche. Kenyon is Mona's common-law husband, and they live together near Robin LaRoche. Robin testified that for three years preceding April 2003, Mona baby-sat for A.L. approximately two Fridays each month. On these occasions, A.L. generally stayed overnight at Kenyon's residence. On April 9, 2003, while visiting Child's Safe Place in Sioux Falls on an unrelated matter, A.L. told a physician's assistant, Renette Kroupa, that Kenyon had touched her private areas during these overnight visits.

By the time of trial, A.L. was 11 years old. She testified that Kenyon started touching her when she was eight. According to A.L., the acts occurred while she was sleeping in a bedroom belonging to R.K., a daughter of Mona and Kenyon. She testified that Kenyon entered the room at night while the girls were sleeping. A.L. testified that during the first incident, Kenyon touched her private part in the "area between [her] legs" on top of and underneath her clothes. A.L. said that on other occasions, Kenyon touched her "behind" with his hand, and attempted to put his finger inside her private part in the "front." A.L. stated that "this happened" more than ten times. She testified that during the three-year period from April 2000 to April 2003, she stayed at Kenyon's residence approximately five times each month, and that Kenyon touched her every night she stayed there.

A.L. also testified that Kenyon attempted to rape her. According to A.L., Kenyon once took off his boxer shorts and pulled her pants and underwear down to her knees. A.L. explained that Kenyon eventually was laying on top of her and "moving up-and-down." She further stated that "his private part" touched her and "almost" went inside her. A.L. identified Kenyon's "private part" as being "between his legs." A.L. testified that when she tried to move away, Kenyon turned her so that she was facing the bed, and attempted to use his private part to touch her behind. After this incident, A.L. said she had to go to the bathroom to clean up the "wet stuff that [came] out of him." At the conclusion of her testimony, after discussing various sexual acts, A.L. testified that the last time "it happened" was the week before her meeting with Renette Kroupa on April 9, 2003.

On cross-examination, A.L. admitted that when Kenyon touched her on various occasions, his daughter R.K. was sleeping in the same bottom bed of a bunk bed, but A.L. said that R.K. never woke up or discussed the incidents with A.L. A.L. said that she tried to wake up R.K. by yelling or hitting her, but that Kenyon prevented her from doing so by covering A.L.'s mouth and holding her hands. A.L. also stated that another child was sleeping in the top bunk, and that on one occasion, another child shared the bed with A.L. and R.K. while Kenyon touched her. A.L. testified that despite her attempts to cry, fight, and yell, the other children never woke up. A.L. said she was too scared to tell anyone about Kenyon's conduct, because he threatened to kill her.

Kenyon introduced testimony regarding the number of people who were sleeping in the same bedroom with A.L. when she stayed at Kenyon's home. Mona testified that during this three-year period, there were at least three girls sleeping in the bedroom, while on some occasions there were up to five girls. On some nights, according to Mona, there were as many as four girls sleeping together on the bottom half of the bunk bed. These four girls also testified. Neither Mona nor any of these children acknowledged hearing screams or cries from A.L. or hearing any strange noises coming from the bedroom. According to the defense testimony, none of the children — two of whom were Kenyon's daughters — ever saw Kenyon enter the bedroom at night or bother A.L. in the bedroom.

Over the objection of defense counsel, the district court admitted Renette Kroupa's testimony regarding her conversation with A.L. on April 9, 2003. Kroupa recounted her discussion with A.L., which reiterated much of A.L.'s earlier trial testimony. Kroupa also offered explanations of what A.L. meant by the use of the term "private parts." During her meeting with Kroupa, A.L. used a diagram to identify her genital area as her "private part" and her buttocks as her "behind." A.L. identified Kenyon's "private part" on a diagram as his penis. Kroupa testified that A.L. informed her that on one occasion, Kenyon's private part went inside her about a half-inch or an inch, and that it was painful for A.L. A.L. told Kroupa that Kenyon also attempted to penetrate A.L.'s behind, but that he did not complete the act because it hurt her. Upon conducting a physical examination, Kroupa did not detect any injuries to A.L.

The government also introduced the testimony of Dr. Rich Kaplan, the former Medical Director of the Center on Child Abuse and Neglect at the South Dakota Children's Hospital in Sioux Falls. Dr. Kaplan testified that based on his experience, it was not unusual for a child to have no physical injury after being sexually assaulted. Dr. Kaplan also explained that it is not unusual for children to delay reporting incidents of sexual abuse, and that once children do disclose such abuse, they often do so in a piecemeal fashion.

II.

Kenyon contends that the evidence at trial was insufficient to convict him of abusive sexual contact and aggravated sexual abuse. In reviewing for sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and we will "overturn a conviction only if no reasonable jury could have concluded that the defendant was guilty beyond a reasonable doubt on each essential element of the charge." United States v. Miller, 293 F.3d 468, 470 (8th Cir.2002) (internal quotations and citation omitted).

Kenyon first argues that no rational jury could have convicted him because A.L.'s testimony was simply incredible. He points to evidence that none of the children sharing a bedroom with A.L. saw or heard any assault by Kenyon, that witnesses reported normal behavior by A.L. during the period of alleged abuse, and that the government presented no evidence of physical injury to A.L. It is well-established, however, that credibility is the province of the jury, and the jury was free to determine what weight should be given to A.L.'s testimony in light of the evidence cited by Kenyon. United States v. Kirkie, 261 F.3d 761, 768 (8th Cir.2001); United States v. Wright, 119 F.3d 630, 634 (8th Cir.1997). Even in the face of inconsistent evidence, a victim's testimony alone can be sufficient to support a guilty verdict. Wright, 119 F.3d at 634; Kirkie, 261 F.3d at 768. Assuming there could ever be a case in which a witness's testimony is so incredible that a reviewing court would set aside a verdict based only on that testimony, this is not it. The government provided plausible explanations for the evidence highlighted by the defense, including potential bias on the part of Kenyon's daughters that might account for their failure to report abuse by Kenyon, and Dr. Kaplan's testimony that it was not unusual for a victim of child abuse to display no physical injuries. See Kirkie, 261 F.3d at 768.

Kenyon also urges that even if A.L.'s testimony is believed, there was insufficient evidence to establish the elements of the offenses charged in the indictment. In this regard, he contends that we may not consider all of the evidence presented at trial in evaluating the sufficiency of the evidence. Kenyon argues that because Renette Kroupa's testimony was inadmissible hearsay, we should give it no weight in determining whether he is entitled to a judgment of acquittal.

After a careful study of the record, for reasons detailed below, we reject Kenyon's claims that the evidence was insufficient to support the jury's verdicts. We disagree with his contention that we may not consider Kroupa's testimony as part of this review. An appellate court should consider "the same quantum of evidence" that was presented to the trial court in determining whether a motion for judgment of acquittal should have been granted, even if some of the evidence was inadmissible. Lockhart v. Nelson, 488 U.S. 33, 40-42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); United States v. Cruz, 363 F.3d 187, 197 (2d Cir.2004); cf. United States v. Alexander, 331 F.3d 116, 128 (D.C.Cir.2003). An error in the admission of evidence may warrant a new trial without the disputed evidence, but if the evidence admitted at the first...