U.S. v. Peneaux

• Decision Date: 29 December 2005
• Docket Number: No. 04-4165.,04-4165.
• Citation: U.S. v. Peneaux, 432 F.3d 882 (8th Cir. 2005)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sherman T. PENEAUX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

432 F.3d 882

UNITED STATES of America, Plaintiff-Appellee, v. Sherman T. PENEAUX, Defendant-Appellant.

No. 04-4165.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2005.

Filed: December 29, 2005.

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Timothy J. Langley, argued, Assistant Federal Public Defender, Sioux Falls, SD (Jeffrey L. Viken, on the brief), for appellant.

John E. Haak, argued, Assistant U.S. Attorney, Sioux Falls, SD, for appellee.

Before ARNOLD, HANSEN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

A jury convicted Sherman Peneaux on four counts of aggravated sexual abuse of a child, T.P., and on two counts of assault, and the district court¹ imposed concurrent sentences of 180 months for the sexual abuse offenses and 60 months for the assault convictions. Peneaux appeals, arguing that there was insufficient evidence to sustain his convictions, that hearsay statements were improperly admitted, and that his constitutional right to confrontation was violated. We affirm.

I.

In March 2002 the South Dakota Department of Social Services (DSS) removed T.P. and her siblings, N.P. and Fianna, from the custody of their parents, Sherman Peneaux and Juanita Swalley, based on allegations that Peneaux had abused Fianna. At that time T.P. was three years old, and N.P. was two. The children were placed in the Spotted Tail Crisis Center, and T.P. subsequently reported that Peneaux had sexually abused her and extinguished a cigarette on her body. T.P. made the statements to tribal police investigator Grace Her Many Horses, forensic investigator Lora Hawkins, child care case worker Zane McClarnnan, pediatrician Dr. Lori Strong, and two different foster parents, Edith Connot and Penny Norris.

In March 2003, Peneaux was indicted on four counts of aggravated sexual abuse of a child under the age of twelve, 18 U.S.C. § 2241(c) (counts I-IV), one count of assault with a dangerous weapon, 18 U.S.C. § 113(a)(3) (count V), and one count of assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6) (count VI).

The case went to trial in September 2004, and the government called tribal investigator Grace Her Many Horses after other witnesses had provided background information. She testified without objection about statements T.P. made during an interview with her. She reported that T.P. told her that she had been sexually and physically abused. Then the government called T.P. to the stand; her testimony was inconsistent. On direct examination T.P. denied that Peneaux had abused her, but acknowledged that she had previously told people that she had been sexually abused. The prosecutor presented her with drawings of a naked man and woman and asked her to mark the part of Peneaux's body which had touched her and the part of her body which Peneaux had touched. T.P. circled the genital region and anus on both the male and female diagrams. When she was asked to identify the areas she had marked, she called them the "pee-pee" and "butt." Without objection the diagrams were received into evidence as exhibits. T.P. was also asked how she received the burn mark on her stomach. She responded that Peneaux had inflicted it with a lit cigarette, but she denied he had ever burned her when questioned by defense counsel.

The government called other individuals with whom T.P. had spoken prior to trial. Zane McClarnnan, an employee of the Spotted Tail Crisis Center, testified that T.P. told him that "my dad likes to undress me" and would "lay on top of me." T.P.'s stepmother, Juanita Swalley, was asked about statements she had made to the FBI and whether she had disclosed that T.P. told her "daddy was doing loving to me" and other similar comments. Swalley answered that she could not remember precisely what she had told the agents, but she acknowledged that she had signed the statement she gave to the FBI. The defense did not object to the testimony of either of these witnesses.

Foster parent Edith Connot testified to an incident she had observed at her home. She saw T.P. under her kitchen table touching the genitals of her four year old son. When Connot explained that such behavior was inappropriate, T.P. replied that her father touched her in that way. Again there was no objection by the defense. T.P.'s other foster parent, Penny Norris, testified that she saw many little white marks on T.P.'s body. T.P. told her that Peneaux had burned her with his cigarettes when Norris asked if she had been bitten by bugs. Norris also testified to statements made by N.P., T.P.'s brother, that Peneaux had also burned him with a cigarette. No objection was raised to any of this testimony. The defense did object to testimony Norris gave about a conversation she had with Dr. Allison during a wellness check of T.P. which she had arranged after learning that Peneaux might have physically and sexually abused the child. Norris reported that Dr. Allison had remarked that the circular marks on T.P. could be cigarette burns.

The government next called forensic investigator Lora Hawkins, who testified to statements T.P. had made during two separate interviews. Hawkins testified that during the first interview T.P. told her that "my daddy gets on top of me," that "my daddy touches my pee-pee," and that he wanted her to touch "by his pee-pee." Hawkins also testified that when asked where Peneaux had touched her, T.P. grabbed her crotch. Hawkins further testified that during their second interview, T.P. "consistently presented the same information" and told her that Peneaux had touched her genitals both with his fingers and his penis and that he had tried to penetrate her anus with his penis. Not only did the defense not object to Hawkins' testimony, it offered to introduce the video recordings of these interviews into evidence if the government did not. Peneaux's counsel also had written transcripts of the videos made and entered them into evidence.

Dr. Lora Strong, a pediatrician who examined both T.P. and her brother, was another government witness. She testified about T.P.'s statements indicating that Peneaux had abused her sexually and physically and about her own physical findings. When Dr. Strong asked T.P. whether anyone had touched her where "she goes pee from," T.P. responded yes. When asked who had done it, she stated "Sherman." When asked where Peneaux hurt her, T.P. pointed to her genital area. When asked about her circular scar, T.P. replied "Sherman hurt me." When asked how, she answered "burn with cigarette."

Although the defense did not object to Dr. Strong's testimony about T.P., it did object to her testimony about T.P.'s brother, N.P. No grounds were given for the objection, and it was overruled. Dr. Strong then testified that N.P. had a circular scar on his right knee which was similar to the one found on T.P. She also testified that when she asked N.P. how he got hurt, he responded "burn." When asked what that meant, he answered "Sherman" and "Sherman hurt."

The final government witness was FBI agent William Grode, who interviewed Peneaux while he was awaiting trial. Grode testified that Peneaux admitted that he sometimes slept in the nude and that his children often got into bed with him and that T.P. would snuggle up to him.

The defense called witnesses who testified that they never saw Peneaux sexually or physically abuse T.P. or his other children. The assistant to T.P.'s health care provider testified that T.P. had been examined numerous times before she was removed from her parents' custody and nothing in her records indicated she had been burned. No physical evidence indicating sexual abuse had been reported, and Dr. Strong had noted that her genitals were normal for her age. Although the mark on her stomach was consistent "with the possibility" of a cigarette burn, Dr. Strong admitted something else could have caused it. Betty Kallinger, a physician's assistant at the Horizon Health Care Mission where T.P. was often treated, testified that T.P.'s medical records did not indicate that she had been burned and that the scar could have resulted from an infected sore.

At the conclusion of the government's case the defense moved for a judgment of acquittal which was denied. The defense again moved for judgment of acquittal at the conclusion of all the evidence; the court reserved ruling on the motion and submitted the case to the jury. The jury returned guilty verdicts on all counts, and the defense moved for judgment notwithstanding the verdict and alternatively for a new trial. Both motions were denied. Peneaux appeals, arguing that there was insufficient evidence to sustain his convictions and that the district court abused its discretion by admitting statements which were hearsay and which violated his constitutional right to confrontation.

II.

Peneaux argues that the evidence at trial was insufficient to sustain his conviction, in large part because T.P.'s prior out of court statements should not have been admitted and cannot be considered as substantive evidence. In reviewing his sufficiency argument we consider "the same quantum of evidence that was considered by the trial court in determining whether a motion for judgment of acquittal should have been granted, even if some of the evidence is later determined to be inadmissible." United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir.2005); see also 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); United States v. Alexander, 331 F.3d 116, 128 (D.C.Cir.2003). We thus start by considering all the evidence. Although evidentiary errors will sometimes require a new trial, the issue on a motion for judgment of acquittal is whether the evidence at trial was "sufficient to support a conviction." Kenyon, 397 F.3d at 1076. In considering whether the evidence was sufficient to sustain Peneaux's...