U.S. v. Balfany
| Decision Date | 12 June 1992 |
| Docket Number | Nos. 91-2526,91-2637,s. 91-2526 |
| Citation | 965 F.2d 575 |
| Parties | 35 Fed. R. Evid. Serv. 990 UNITED STATES of America, Appellee/Cross-Appellant, v. Edward F. BALFANY, Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Terry Pechota, Rapid City, S.D., argued, for appellant/cross-appellee.
Dennis Holmes, Pierre, S.D., argued, for appellee/cross-appellant.
Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.
A federal indictment accused Edward F. Balfany of sexually abusing a girl under the age of twelve on four different occasions. A jury ultimately found Balfany guilty of four counts of aggravated sexual assault in violation of 18 U.S.C. §§ 1153, 2241(c) & 2245, and the district court sentenced him to 168 months in prison. Balfany appeals both his conviction and his sentence. Balfany contends, among other things, that the district court admitted prejudicial hearsay, excluded relevant evidence, and improperly enhanced his offense level based on the child's age and a finding that he threatened the victim. The government cross-appeals, asserting that the district court erred in failing to enhance Balfany's offense level based on a finding that the child was in his custody when the abuse occurred. We affirm on all issues raised in Balfany's appeal, but reverse and remand for resentencing on the issue raised in the government's cross-appeal. 1
The indictment against Balfany accused him of sexually abusing S.N., then an eight-year old girl, on four separate occasions. All four incidents occurred in a house located on the Rosebud Indian Reservation near Mission, South Dakota. Balfany lived in the house with Angela Nightpipe, his common-law wife. Also living in the house were Balfany's three children from an earlier marriage, Nightpipe's two children, including S.N., and an infant conceived during the Balfany and Nightpipe relationship. Although Balfany and Nightpipe generally disciplined their own children, they essentially lived together as husband and wife.
S.N. testified at trial, using language appropriate for her age. According to her testimony, Balfany had sexually assaulted her on four different occasions in 1988, before or shortly after the end of the school year. Three of the assaults occurred at night in S.N.'s bedroom. In essence, S.N. testified that on each occasion Balfany entered the room dressed only in a T-shirt and underwear, lifted up her nightgown, and pulled down her panties. Balfany then inserted his penis or fingers into S.N.'s vagina and began to move up and down. The fourth assault occurred during the day on a couch in the living-room. Balfany was home alone with S.N. and ordered her to pull down her pants and lay on the couch. Balfany again inserted his penis into S.N.'s vagina and moved up and down. On at least one occasion, Balfany ejaculated, and during one of the assaults, bit S.N. on the shoulder, piercing her skin. S.N. also testified that she experienced great pain during the assaults, but did not shout or scream because she was afraid. Balfany had threatened to whip her with his belt if she told anyone about the assaults.
After the school year had ended in 1988, S.N. went to Oregon to live with her aunt, Ilona Bordeaux, and her grandmother. S.N. had spent the previous three summers in Oregon, and this year she stayed in Oregon at the end of the summer and attended school. Bordeaux became concerned about S.N. during the summer. S.N. was often depressed, had trouble eating, and suffered from nightmares. Bordeaux also noticed that S.N. had a bite mark on her shoulder when she first came to Oregon, complained of vaginal pain, and had a vaginal discharge.
Bordeaux took S.N. to see a doctor shortly before the school year began in 1988 because the Oregon public school system required a yearly physical for enrollment. On September 8, 1988, S.N. was examined by Dr. Mark Nurre, a general practitioner who had examined less than ten children for signs of sexual abuse. Bordeaux told Dr. Nurre about her suspicions that S.N. may have been sexually abused. After finishing a routine physical, Dr. Nurre conducted an examination of S.N.'s genital area without the aid of a culdoscope. 2 Dr. Nurre was unable to find any evidence of sexual abuse. According to Bordeaux, when Dr. Nurre asked S.N. if she had been abused, S.N. merely hung her head without responding.
While at school in Oregon, S.N. attended presentations addressing good touching and bad touching. Shortly after these presentations, S.N. told Bordeaux "I have to talk to you, I've got a secret." S.N. then revealed to Bordeaux that Balfany had sexually abused her and described the various assaults in detail. Bordeaux, however, did not report the abuse to any authority because she was afraid S.N. would be in danger if Balfany learned that S.N. had revealed the abuse.
In early 1989, S.N. also told a school counselor that she had been sexually abused. The counselor reported the matter to the Children's Services Division of the Oregon Department of Social Services, and the case was assigned to Glenda Berger, an emergency response worker for the department. In addition to a bachelor's degree and master's work in psychology, Berger has received extensive training in conducting interviews with children suspected of being sexually abused.
Berger conducted an interview with S.N. on February 14, 1989. A detective with the Oregon State Police Department was also present, but his direct participation in the interview was minimal. Berger used no anatomical dolls or leading questions during the interview. At the beginning of the interview, Berger told S.N. that she and the detective were trying to help her. Berger described S.N. as being very anxious, tense and fearful during the interview. S.N.'s voice was shaky, and she cried throughout the interview. S.N. discussed the various assaults, using age-appropriate language, and identified Balfany as the assailant.
After the interview, Berger arranged for a physician, Dr. Scott Halpert, to conduct a thorough examination of S.N. for medical evidence of sexual abuse. Dr. Halpert is a board certified pediatrician, has attended several training programs on sexual abuse examination and has performed over 150 examinations with a culdoscope. Dr. Halpert examined S.N. on February 22, 1989. He began by taking a medical history from S.N., including information about the abuse. According to Dr. Halpert, the patient's medical history is important because it helps the physician determine what to concentrate on during the examination. Dr. Halpert also stated that the identity of the assailant in particular is very important because it affects his recommendation for counseling. During her conversation with Dr. Halpert, S.N. again described the various incidents of abuse, using age-appropriate language, and identified Balfany as the abuser.
In addition to a small scar on S.N.'s shoulder, Dr. Halpert found positive signs of sexual abuse, including an increased opening of the hymen, a significant rounding of part of the hymen, and a scar from a healed tear of the hymen. He testified that these findings were consistent with either penile or digital penetration. Although he could not verify whether S.N.'s hymenal injuries were present at the time Dr. Nurre examined her, Dr. Halpert testified that Dr. Nurre's findings were not necessarily inconsistent with his. Dr. Halpert explained that Dr. Nurre easily could have missed the injuries because he did not have a culdoscope and did not have sufficient experience to distinguish an abnormal hymen from a normal one.
In February 1989, Patricia O'Brien Walrow (who uses the name O'Brien professionally), a family sexual abuse treatment specialist with the Children's Services Division, became responsible for S.N.'s treatment. O'Brien has a bachelor's degree in psychology and a master's degree in social work. She also has received extensive training in interviewing children suspected of being sexually abused and has dealt with over 1,800 sexually abused children.
O'Brien placed S.N. in a group therapy program with other abused children, which started about April 1989. Prior to the group sessions, however, O'Brien met with S.N. individually five or six times because she believed S.N. needed special attention. At the beginning of these individual sessions, O'Brien explained to S.N. that she needed to know exactly what happened to her. O'Brien asked S.N. about the assaults without using leading questions or anatomical dolls. S.N. described the various assaults to O'Brien, using age-appropriate language, and identified Balfany as the assailant.
Before trial, the government filed a notice with the court stating that it intended to introduce S.N.'s hearsay statements to Bordeaux, Berger, and O'Brien under Fed.R.Evid. 803(24) and 804(5), and S.N.'s statements to Dr. Halpert under Rule 803(4). At trial, Balfany objected to the hearsay testimony of Bordeaux, Berger, and O'Brien on confrontation and hearsay grounds. The court overruled the objections, holding that no confrontation issue existed because S.N. testified at trial and that the hearsay was sufficiently trustworthy for admission under Rule 803(24). Balfany did not object to Dr. Halpert's hearsay testimony at trial.
The hearsay testimony of the four witnesses was mainly the same as S.N.'s testimony. There were a few distinctions, however, some of which were significant. Bordeaux, for example, testified on cross-examination that S.N. said Balfany had threatened to kill her mother and sister if she ever told anyone about the assaults.
Balfany contends that the district court committed prejudicial error in permitting Dr. Halpert, O'Brien, Berger, and Bordeaux to testify about the hearsay statements S.N. made to them. We...
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