U.S. v. Wright

• Decision Date: 10 July 1997
• Docket Number: No. 96-2978,96-2978
• Citation: 119 F.3d 630
• Parties: 47 Fed. R. Evid. Serv. 554 UNITED STATES of America, Appellee, v. Willie WRIGHT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 630

119 F.3d 630

47 Fed. R. Evid. Serv. 554

UNITED STATES of America, Appellee, v. Willie WRIGHT, Appellant.

No. 96-2978.

United States Court of Appeals Eighth Circuit.

Submitted March 12, 1997.

Decided July 10, 1997.

Robert P. Gough, Rosebud, SD, argued, for appellant.

Dennis Holmes, Asst. U.S. Atty., Pierre, SD, argued (Randolph J. Seiler, Asst. U.S. Atty., on the brief), for appellee.

Before MAGILL ¹ and MURPHY, Circuit Judges, and GOLDBERG, ² Judge.

MAGILL, Circuit Judge.

Willie Wright appeals his conviction for abusive sexual contact and aggravated sexual abuse. Wright argues that: (1) the evidence was not sufficient to sustain his conviction; (2) the district court ³ abused its discretion in allowing leading questions during the government examination of the victim; (3) the emergency room physician's testimony as to his sexual abuse examination was improper bolstering; (4) the district court both improperly allowed a government expert to testify as to hearsay and prohibited the defense from examining the expert regarding the victim's prior inconsistent statements for the purpose of impeaching the victim; and (5) he was denied a fair trial by a juror's misconduct in not disclosing the juror's relationship to a tribal children's court judge. We affirm.

I.

This case involves the sexual abuse of a four-year-old girl. The girl, A. Doe, lived with her mother, I. Doe, and her seven siblings on the Rosebud Indian Reservation in South Dakota. Wright is the biological father of I. Doe's youngest child and A. Doe's baby brother. At the time of the abuse, I. Doe and Wright's relationship had ended and Wright was not living with the family. However, during late October and early November of 1994, Wright babysat the children for I. Doe.

On November 2, 1994, A. Doe first reported the abuse to a Head Start teacher's aide, Teresa Farmer. A. Doe protested having to go home, and when Farmer asked A. Doe why she did not want to go home, A. Doe stated that her baby brother's dad was mean, used bad words, threw things, and touched her. Trial Tr. at 40. A. Doe pointed to her vagina when asked by Farmer where she was touched. Id.

Following the initial disclosure, I. Doe, also a Head Start worker, was summoned, and A. Doe again recounted the touching to I. Doe. A. Doe told I. Doe that Wright had " 'touched me in a bad place' " and, when asked where, pointed to her vagina. Id. at 68; see also id. at 87. On the way home from Head Start, A. Doe also told I. Doe that " '[h]e touched me with his pee-pee like [T. Doe's] pee-pee.' " Id. at 73. T. Doe is A. Doe's older brother. When asked where he touched her, A. Doe told I. Doe, " 'On my pee-pee, on my middle.' " Id.

Once at home, I. Doe confronted Wright with A. Doe's accusations. Wright denied the accusations and stated, " '[o]h, I don't care, nobody is going to believe a little kid, anyway.' " Trial Tr. at 72 (testimony of I. Doe); see also id. at 377.

On November 3, 1994, A. Doe was examined by Dr. Luis Lopez in the Indian Health Services Hospital Emergency Room. A. Doe told Lopez that Wright " 'went into the room where she was sleeping, removed the covers, removed her pants, and touch[ed] her on her pee-pee. She also refer[red] that he also put his pee-pee into her pee-pee, and that she told him that it hurt.' " Id. at 102 (reading from emergency room record); see also id. at 96-97. Dr. Lopez's medical examination revealed no physical evidence of abuse.

On November 4, 1994, A. Doe again recounted the abuse to Joanne Yankton, a State of South Dakota Child Protection worker. Yankton asked A. Doe if anyone had hurt her or did a bad touch to her. A. Doe pointed to the vagina on a picture of a girl and said " 'Willie did.' " Id. at 218-19. At this interview, A. Doe also stated that three times Wright had stuck two fingers inside her. Id. at 219.

On September 21, 1995, a three-count indictment was filed against Wright. Wright was charged with one count of abusive sexual contact and two counts of aggravated sexual abuse. On October 2, 1995, Wright was arrested, and at his arraignment on October 12, 1995, Wright pled not guilty to all three counts.

Before trial, on February 24, 1995, and February 9, 1996, Margaret Pier, a licensed professional counselor and school psychologist, interviewed A. Doe. A. Doe was referred to Pier by the Federal Bureau of Investigation (FBI). During the first appointment, A. Doe and Pier prepared a picture of A. Doe's family. The picture was drawn by Pier with A. Doe directing Pier. Upon the top of the drawing Pier wrote A. Doe's statement, " 'He moved because he touched my bad part. I started telling mom and she started fighting.' " Id. at 312.

At trial, the jury heard A. Doe testify that Wright touched her Q [the prosecutor] When you were home with Willie when he was baby-sitting, did he do something to you that you didn't like?

A [A. Doe] Yeah.

Q Can you remember what he did to you?

A Unh-unh.

Q Did he touch you anyplace?

A Yeah.

Q Where did he touch you?

A In the private.

Q In your private parts?

A Yeah.

Q [A. Doe], I'm going to show you a picture of a girl, and she's maybe a little bigger than you are, which has been marked as Exhibit 4. And I'm going to ask you to pretend that this girl is you.

Can you take this magic marker and mark on Exhibit 4 where Willie touched you?

A (Witness marking exhibit).

Q Okay. Make a black mark there where you just touched.

A (Witness marking exhibit).

Q And what do you call the part where you just made the mark?

A Middle.

MR. SEILER [the prosecutor]: Your Honor, we'd ask the record to reflect that the witness, on Exhibit 4, has made a black mark in the vaginal area, and we would offer Government's Exhibit 4.

Id. at 185-86.

The jury also heard A. Doe testify that Wright touched his penis and her vulva:

Q [the prosecutor] Okay. Did he touch you down there with his pee-pee?

A [A. Doe] Yeah.

Q I'm going to show you another drawing, [A. Doe], which has been marked as Government Exhibit 3. And I'm going to ask you to pretend that this is Willie.

Can you take this magic marker and put a circle around the part that Willie touched you with?

A (Witness marking exhibit)

MR. SEILER [the prosecutor]: Your Honor, we'd ask the record to reflect that the child has circled the penis of the anatomically correct drawing, and we would offer Government's Exhibit 3 at this time.

Id. at 186-87; see also id. at 188-89.

On April 24, 1996, the jury returned a guilty verdict on Count I abusive sexual contact (intentional touching of genitalia with hand) and on Count III aggravated sexual abuse (contact between penis and vulva). Wright was found not guilty of Count II aggravated sexual abuse (penetration of genitalia with finger). Wright's motion for a new trial was denied, and he was sentenced to 189 months. Wright appeals.

II.

Wright first argues that the evidence was not sufficient to convict him. Wright's two pronged argument can be summarized as follows: (1) because of the lack of physical or other evidence, the government's case rests on the testimony of A. Doe, who cannot be believed; and (2) because the jury acquitted Wright on Count II (penetration of genitalia with finger) it is logically inconsistent to convict him on count I (touching genitalia with hand). We disagree.

The Federal Constitution's Due Process Clause protects "the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Our task in reviewing a claim of insufficiency of the evidence is to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We will draw all reasonable inferences from the evidence in favor of the prosecution. See United States v. Larson, 110 F.3d 620, 624 (8th Cir.1997).

Wright's first argument amounts to an assertion that the jury erred in weighing credibility. Wright asserts that the jury did not properly consider both A. Doe's suggestibility after being repeatedly questioned in unrecorded interviews and A. Doe's inconsistencies in remembering such details as whether or not she had school on the day of the abuse or what time of day the abuse took place. However, despite Wright's assertion that " 'nobody is going to believe a little kid, anyway,' " Trial Tr. at 72 (testimony of I. Doe); see also id. at 377, the jury was free to do just that.

This Court has repeatedly made clear that "[i]t is the sole province of the jury to weigh the credibility of a witness." United States v. Martinez, 958 F.2d 217, 218 (8th Cir.1992); see also United States v. Robinson, 110 F.3d 1320, 1323-24 (8th Cir.1997); United States v. Smith, 104 F.3d 145, 148 (8th Cir.1997); United States v. Gordon, 974 F.2d 97, 100 (8th Cir.1992); United States v. Fortenberry, 973 F.2d 661, 664 (8th Cir.1992); United States v. Thompson, 972 F.2d 201, 203 (8th Cir.1992); Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir.1992). The jury heard testimony regarding the suggestibility of children. See Trial Tr. at 338-42 (testimony of the defense's expert Dr. Steven Manlove); id. at 288-90 (testimony of the government's expert Margaret Pier). The jury also heard testimony regarding A. Doe's inconsistencies in remembering such details as whether or not she had school on the day of the abuse or what time of day the abuse took place. See id. at 187 (testimony of A. Doe that the touching took place after school when the rest of the kids were at school); id. at 96, 102 (testimony of Dr. Lopez that A. Doe told him that Wright touched her Friday morning, a day when there was no school); cf. id. at 191 (testimony of A. Doe that it happened around the 4th of July with loud...