U.S. v. Espinosa

• Decision Date: 26 October 2009
• Docket Number: No. 08-3354.,08-3354.
• Citation: 585 F.3d 418
• Parties: UNITED STATES of America, Appellee, v. Joseph E. ESPINOSA, Sr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

585 F.3d 418

UNITED STATES of America, Appellee, v. Joseph E. ESPINOSA, Sr., Appellant.

No. 08-3354.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2009.

Filed: October 26, 2009.

Jana Miner, AFPD, Pierre, SD, for appellant.

Mark E. Salter, AUSA, Sioux Falls, SD, Eric D. Kelderman, Kevin J. Krull, AUSA, Pierre, SD, for appellee.

Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.

SMITH, Circuit Judge.

A jury convicted Joseph E. Espinosa Sr. of aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153, 2241(a)(1), 2241(c), and 2246(2)(A) ("Count IV"), and abusive sexual contact, in violation of §§ 1153, 2244(a)(1), and 2246(3) ("Count VII").¹ The district court sentenced Espinosa to 30 years' imprisonment on the aggravated sexual abuse conviction and 20 years' imprisonment on the abusive sexual contact conviction, with the sentences to run concurrently. The court also sentenced Espinosa to five years of supervised release on each count, with the sentences to run concurrently. On appeal, Espinosa argues that (1) the evidence was insufficient to support his conviction; (2) an expert witness improperly bolstered another witness's credibility; and (3) inadmissible hearsay was improperly admitted. We now affirm Espinosa's conviction on Count IV and reverse his conviction on Count VII because insufficient evidence exists as to the victim's age at the time of the offense conduct.

I. Background

Espinosa lived with his girlfriend, Marie Flying, in Rosebud, South Dakota, for 18 years.² Flying obtained legal custody of her grandniece, T.H.S., when T.H.S. was an infant and raised T.H.S. in the home that Flying shared with Espinosa.³ T.H.S. suffers from post-traumatic stress disorder, fetal alcohol syndrome, and mild mental retardation. At age 12, T.H.S. functioned at a mental level of six or seven years old and had a full-scale IQ of 50. T.H.S. resided at a school dormitory during the week and at home with Flying and Espinosa on the weekends.

According to T.H.S., on the weekend of February 25-27, 2007, while she was staying with Espinosa and Flying, Espinosa entered her bedroom while she was sleeping and undressed himself and T.H.S. T.H.S. alleged that Espinosa "got on me" and "stuck his in me." T.H.S. later informed Flying of the incident. Flying called her son, David Flying, to come and pick up T.H.S. T.H.S. stayed with David Flying for the remainder of the weekend. While there, T.H.S. told David Flying what Espinosa did to her. After the weekend, David Flying took T.H.S. back to the dormitory, and he advised T.H.S. to recount the incident to the dormitory staff.

At school, T.H.S. notified a member of the staff, who then telephoned the Rosebud Sioux Tribe Law Enforcement. T.H.S. was transported to Indian Health Services Hospital in Rosebud, South Dakota. A physical examination at the hospital revealed redness, swelling, and bruising in her vaginal area. Ruth Thomas, a certified physician's assistant (PA), testified that part of T.H.S.'s vaginal area, including inside the vaginal vault, was abraded, sore, raw, "swollen, and it was red, and it was irritated-looking." Thomas testified that T.H.S. was in pain during the vaginal examination. She also opined that the injuries that she observed were caused within the past one, two, or three days. While Thomas attempted to use a speculum during the examination, she discarded it because "it was too painful." A sexual assault kit did not reveal any physical evidence.

Later, the Federal Bureau of Investigation interviewed K.H.S., T.H.S.'s sister. K.H.S. disclosed that Espinosa had previously sexually abused her. She testified that when she and Espinosa were alone at the house, he chased her around the dining room table. On one occasion, she said that he cornered her between the wall and the table, picked her up, and carried her to a nearby couch. He then rubbed her thighs, genitalia, and breasts through her clothing with his hand, despite her objection. According to K.H.S., the encounter lasted between five and ten minutes.

Espinosa was indicted on two counts of aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(A) ("Count I and Count II"); one count of aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(D) ("Count III"); two counts of aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153, 2241(a)(1), 2241(c), and 2246(2)(A) ("Count IV and Count V"); one count of aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153, 2241(a)(1), 2241(c), and 2246(2)(C) ("Count VI"); one count of abusive sexual contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(1), and 2246(3) ("Count VII"); and one count of abusive sexual contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(3), and 2246(3) ("Count VIII"). Counts I through VI alleged offenses involving T.H.S., while Counts VII and VIII alleged offenses involving K.H.S.

At trial, following the government's case-in-chief, the district court granted Espinosa's motion for judgment of acquittal on Counts I, II, V, VI, and VIII. The jury returned guilty verdicts on Count IV and Count VII. The jury was unable to reach a verdict on Count III, aggravated sexual abuse, and the court dismissed it. The district court imposed concurrent sentences of 30 years' imprisonment on Count IV and 20 years' imprisonment on Count VII. The court also sentenced Espinosa to five years of supervised release on each count, with the sentences to run concurrently. Espinosa appeals, raising four primary errors, including sufficiency of the evidence.

II. Discussion

On appeal, Espinosa argues that the district court erred by (1) failing to grant his motion for acquittal because the evidence presented was insufficient to prove actual penetration or an attempt at actual penetration; (2) failing to grant his motion for acquittal because the government did not provide sufficient evidence of the age of the complaining witness at the time of the alleged offense; (3) denying his motion for a mistrial after a psychiatrist twice asserted that the complaining witness had been sexually abused; and (4) allowing the government to introduce inadmissible hearsay and vouching statements. After review, we affirm the district court.

A. Sufficiency of the Evidence

Espinosa first attacks the sufficiency of the evidence presented by the government. Specifically, he argues that the government did not prove actual penetration or an attempt at penetration when trying to prove sexual abuse. He also argues that the government did not prove the age of K.H.S., the complaining witness.

Federal Rule of Criminal Procedure 29(a) provides, in relevant part, that "[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Espinosa asserts that the district court erred in not granting his motion for judgment of acquittal based on insufficient evidence. We review a motion for judgment of acquittal under a de novo standard of review. United States v. Reddest, 512 F.3d 1067, 1069-70 (8th Cir.2008).

We employ a strict standard of review regarding denials of motions for acquittal, viewing the evidence in the light most favorable to the guilty verdict, resolving all evidentiary conflicts in favor of the government, and accepting all reasonable inferences supported by the evidence. A jury verdict will not lightly be overturned and we will reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. When reviewing the sufficiency of the evidence to support a conspiracy conviction, we will affirm if the record, viewed most favorably to the government, contains substantial evidence supporting the jury's verdict, which means evidence sufficient to prove the elements of the crime beyond a reasonable doubt.

United States v. Thompson, 533 F.3d 964, 970 (8th Cir.2008) (internal quotations and citations omitted). In granting or denying the motion, the "district court has very limited latitude in ruling upon a motion for judgment of acquittal." United States v. Baker, 367 F.3d 790, 797 (8th Cir.2004).

1. Sexual Abuse of T.H.S.

Espinosa argues that the evidence was insufficient to prove penetration or an attempt as required under the statute. To convict a defendant of aggravated sexual abuse, as charged in Count IV, the government must prove that "(1) the defendant did knowingly cause and attempt to cause another to engage in a sexual act, (2) by the use of force or threat of force, (3) the defendant is an Indian, and (4) the offense occurred in Indian Country." United States v. Youngman, 481 F.3d 1015, 1020 (8th Cir.2007) (citing 18 U.S.C. §§ 1153, 2241(a), and 2246(2)). A sexual act requires "contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, [sic] slight." 18 U.S.C. § 2246(2)(A). Because Espinosa only challenges the evidence as to whether he knowingly caused or attempted to cause the victim to engage in a sexual act, he necessarily concedes the other elements of the statute.

Espinosa cites Reddest to support his sufficiency argument. In Reddest, we reversed the defendant's conviction for engaging in a sexual act with a person between the ages of 12 and 16. 512 F.3d at 1071-72. The victim testified that the defendant reached inside her underwear and put his finger "`[r]ight in my—almost close to my [hole].'" Id. at 1072. On appeal, we held that this evidence was insufficient to prove penetration of the genital opening because it was unclear "where [the defendant's] finger was or how `close' it was to the genital opening." Id.

Espinosa also relies on United States v. Plenty Arrows, which overturned an aggravated sexual abuse conviction for...