UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENDALL LEN BURGESS, Defendant - Appellant.
No. 22-7033
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
April 23, 2024
Before CARSON, BALDOCK, and EBEL, Circuit Judges. EBEL, Circuit Judge.
PUBLISH. Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:20-CR-00132-RAW-1). FILED April 23, 2024, Christopher M. Wolpert, Clerk of Court.
James R.W. Braun, Special Assistant U.S. Attorney (Christopher J. Wilson, United States Attorney, with him on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee United States of America.
In this direct criminal appeal, Defendant Kendall Burgess challenges his convictions for 1) aggravated sexual abuse and 2) abusive sexual contact. These
I. FACTUAL BACKGROUND
In April 2019, seven-year-old P.G. lived in a three-bedroom house with her family. P.G. slept in one bedroom with her mother and her twelve- and six-year-old sisters. P.G.’s twenty-one-year-old sister stayed in another bedroom with her nineteen-year-old boyfriend, Defendant Burgess, and their two young children (ages two years and threе months). P.G.’s seventeen-year-old brother stayed in the third bedroom.
On Good Friday, April 19, Burgess’s two-year-old child was severely burned when the child pulled a cup of boiling water onto himself. The child’s mother and grandmother (P.G.’s sister and mother) took the child to the emergency room, leaving Burgess, who had been sleeping, home with the other children. P.G. says that Burgess sexually abused her that afternoon. P.G. then spent the weekend with the family of one of her friends. That Sunday, during an Easter party, the friend’s mother overheard P.G. tell another child that P.G.’s brother-in-law had put his private in P.G.’s mouth and peed. The friend’s mother reported what she had overheard to P.G.’s mother, who then confronted her older daughter and Burgess. They immediately moved out of the home. When P.G. returned home the next day (Monday), P.G.’s mother spoke with P.G., asking first who she referred to as her brother-in-law. P.G. answered Burgess. After P.G.’s mother assured P.G. that Burgess was not at home, P.G. told her mother that Burgess had sexually abused her on the preceding Friday, telling a story consistent with what the other mother had overheard P.G. telling her playmate.1
After hearing from P.G. that Burgess had sexually molested her, P.G.’s mother took P.G. to the police station and then to Safe Harbor Victim Center, where the Center’s director, Jawanna Wheeler, conducted a recorded forensic interview with P.G. Wheeler had been trained to conduct forensic interviews, which Wheeler
II. PROCEDURAL BACKGROUND
The United States charged Burgess with committing the sex acts P.G. had described. Specifically, a grand jury indicted Burgess on two federal offenses:
- Count One, aggravated sexual abuse in Indian country, charged that, “[o]n dates uncertain . . . from in and about November 2018 to on or about April 19, 2019, within . . . Indian Country,” Burgess, “an Indian, did knowingly engage and attempt to engage in a sexual act as defined in”
18 U.S.C. § 2246 —“to wit: contact between the penis and the mouth of P.G., a person who had not attained the age of 12 years, in violation of Title 18, United States Code, Sections 1151, 1153, 2241(c) and 2246(2)(B).” - Count Two, abusive sexual contact in Indian Country, charged that, “[o]n dates uncertain . . . from in and about November 2018 to on or about April 19, 2019, within . . . Indian Country,” Burgess,
an Indian, did knowingly engage in and cause sexual contact as defined in Title 18, United States Code, Section 2246, to wit: the intentional touching, through the clоthing, of the genitalia of P.G., a person who had not attained the age of 12 years, with an intent to abuse, humiliate, harass, degrade, arouse and gratify the sexual desire of any person, in violation of Title 18, United States Code, Sections 1151, 1153, 2244(a)(5) and 2246(3).
Prior to trial, in response to the parties’ motions in limine, the district court ruled that neither P.G.’s mother nor P.G.’s friend’s mother could testify to anything P.G. said about the abuse. Instead, these witnesses could only testify generally that P.G. made statements that prompted them to investigate further. The court otherwise deferred until trial ruling on the admissibility of statements P.G. made to others, including Wheeler, the forensic interviewer.
At trial, P.G., then age nine, testified that, when she was six or seven years old, the following occurred on April 19, 2019, which P.G. recalled was the Friday when her two-year-old nephew got burned: When P.G. exited her older brother’s bedroom, where some of the other kids were playing a video game, Burgess grabbed her by the arm, took her into the bathroom, shut the door, told her to pull her pants down, then Burgess “put his private in my butt” (III R. 154). “[T]hen he hurried up and put on his clothes and then he told me to hurry up and put on mine and then he got out of the bathroom, so I got out of the bathroom and went back into [her older brother] T.F.’s room to play on his game.” (Id. at 155.) That was the first time P.G. had ever stated that Burgess had anally penetrated her.
P.G. further testified that Burgess’s “private” did not touch any other part of her body. (Id.) However, P.G.’s direct examination continued:
A My mouth.
Q Your mouth, okay. Tell us what happened with your mouth.
A I closed my mouth—well, I closed my eyes, opened my mouth, and [Burgess] put his bad spot in my mouth.
Q What do you mean by bad spot?
A The one that is covered up with a bathing suit.
. . . .
Q And what happened after he put it in your mouth?
A Hmmmm . . . I don’t know.
Q Do you remember was—did he stay still when it was in your mouth or something other than that?
A Sometimes he would stay still and sometimes he won’t.
Q Okay. Well, the time in the bathroom, do you remember whether he stayed still or just was moving around?
A He sometimes would move or stay still.
Q Okay. And did anything happen with his private with your mouth?
A Yes.
Q Okay. What?
A He made me suck it.
Q Okay. And was there—do you remember any sort of taste or sensation?
A Pee.
A I would think it was water so I would swallow it and then one time it had a weird taste so I spitted [sic] it out and then it got on [her older brother] T.F.’s carpet and — sо I didn’t tell T.F. about that. And then I don’t know what happened next.
. . . .
Q So did the pee happen every time he put his private in your mouth?
A Yes.
. . . .
Q So P.G., do you remember how many times that happened?
A A lot.
Q And where would it happen at?
A Sometimes in the laundry room, sometimes in [her older brother] T.F.’s room, and that would be it.
Q And then this time it was in the bathroom?
A Yes.
. . . .
Q P.G. did [Burgess] ever say anything to you about what was going on?
A No, he just told me not to tell anybody.
. . . .
Q Okay. P.G., do you remember him—you’ve told us about his private touching your mouth and that his private touched your butt. Do you remember if he touched other parts of your body with any part of his body, even his hands or anything like that?
A No.
A Sometimes.
Q What would he touch your privates with?
A His hands.
Q And would that be on top of or underneath your clothing?
A Sometimes on top, sometimes not.
(Id. at 155–59.)
On cross-examination, P.G. testified that on the day her two-year-old nephew was taken to the hospital, Burgess took her into the bathroom, “put his bad spot in my butt” (id. at 171‒72), then “[h]e hurried up and put on his shorts and then tells me to put оn my shorts” (id. at 172). P.G. stated that she had only ever told her friend about this happening. She further testified:
Q Was that all that happened that day?
A Yes.
Q Did he touch you in any other way that day?
A No.
Q Did he, as you say, pee in your mouth that day?
A No.
(Id. at 173.) On redirect, P.G. reiterated that Burgess did not put his private in her mouth that day; “[t]hat was on a different day.”3 (Id. at 175.)
After P.G.’s testimony, the Government moved to introduce, as substantive evidence of Burgess’s guilt, the video of the forensic interview that occurred several days after the alleged Good Friday abuse. The trial court granted the Government’s request, over defense counsel’s objection, admitting the video under
The Government also presented testimony from an expert in forensic interviews with children who are suspected of being sexually abused. This expert, who had not interviewed P.G., testified that it is not uncommon for child sex abuse victims to disclose more details of the abuse as time goes on. She further testified that “[i]t is unrealistic to expect . . . a child to be able to give you exactly dates and times that something has happened, be able to tell you every single detail that happened to them, especially when it is one of the first times that they are talking about it.” (Id. at 239.)
At the conclusion оf the evidence, the trial court instructed jurors that, in order to convict Burgess, they had to find beyond a reasonable doubt the specific sexual contact between Burgess and P.G. alleged in the indictment. Over defense counsel’s objection, the court allowed jurors to have the video, along with the other exhibits, during their deliberations. The jury convicted Burgess of both charged offenses. At sentencing, the district court varied downward from the advisory sentence of life in prison, sentencing Burgess instead to thirty years in prison on each count, to run concurrently. Burgess challenges both convictions on appeal.
III. DISCUSSION
Burgess raises several grounds for reversing his convictions, but his primary challenge is to the admission of the recorded interview. We reject that challenge, as well as Burgess’s other asserted grounds for reversal.
A. The district court did not abuse its discretion in admitting the recorded interview into evidence under Fed. R. Evid. 807
Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:
(1) the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
“The residual exception ‘should be used only “in extraordinary circumstances where the court is satisfied that the evidence offers guarantees of trustworthiness and is material, probative and necessary in the interest of justice.“’” United States v. Dalton, 918 F.3d 1117, 1133 (10th Cir. 2019) (quoting United States v. Tome, 61 F.3d 1446, 1452 (10th Cir. 1995) (applying
We review the district court’s Rule 807 ruling for abuse of discretion. United States v. Hammers, 942 F.3d 1001, 1009‒10 (10th Cir. 2019). A district court abuses its discretion if its ruling was either based on an error of law or a cleаrly erroneous finding of fact, or “manifests a clear error in judgment.” United States v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005) (quoting United States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002)). “Under this standard, we will not disturb a trial court’s [evidentiary] decision unless we have a definite and firm conviction that the trial court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” United States v. Walker, 85 F.4th 973, 979 (10th Cir. 2023) (quoting United States v. Merritt, 961 F.3d 1105, 1111 (10th Cir. 2020)).
1. Sufficient guarantees of trustworthiness
Rule 807 first requires that P.G.’s hearsay statements—her recorded responses to the forensic interviewer’s questions—are “supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which [they were] madе and evidence, if any, corroborating the statement[s],”
Here, the district court concluded that P.G.’s statements during the recorded interview were trustworthy for the following reasons:
I believe the indicia of the trustworthiness test has been met. [The interview] was closer in time to the alleged events. It was not in a room full of adults, and frankly it was an exсeptionally -- I’ve watched the video of the interview.
It was exceptionally done with no leading questions, open-ended questions, nothing suggestive in the slightest.
(III R. 188.)
We have previously identified these factors as relevant when considering the trustworthiness of hearsay statements. See Tome, 61 F.3d at 1453 (considering whether interview occurred close in time to the alleged abuse and fact that a trained interviewer used open-ended questions during the interview); United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993) (considering, in applying predecessor Rule 803(24), how close in time hearsay statements were made to alleged abuse). As the district court recognized, these factors are relevant here. Wheeler interviewed P.G. just three days after the last alleged abuse occurred. Pursuant to her training as a forensic interviewer, Wheeler used only open-ended, non-leading questions during the interview.
There were other guarantees of trustworthiness, as well. P.G.’s statements made during the recorded interview were consistent with her spontaneous statements that P.G.’s friend’s mother overheard during the Easter party and what P.G. told her mother about the abuse. See Harrison, 296 F.3d at 1004 (noting consistency of victim’s out-of-court statements “is a strong indicator of the trustworthiness of her” challenged hearsay statement); cf. Tome, 61 F.3d at 1453 (considering whether hearsay statements were spontaneous). Furthermore, using child-like terms to explain what hapрened, during the interview P.G. described the incident of abuse in fairly specific detail. See Tome, 61 F.3d at 1453 (considering specificity in deciding
Burgess’s arguments to the contrary are not convincing. Whereas
In further support of his assertion that he never sexually abused P.G., Burgess points out that the other children in the home that afternoon did not notice Burgess alone with P.G. or sexually abusing her, and P.G.’s older brother T.F. stated that the abuse could not have oсcurred that afternoon because P.G. was with him all day.6 This information does not directly address the circumstances under which the interview was conducted. Nor does it directly support Burgess’s claim of innocence.
Finally, Burgess asserts that the inconsistencies between P.G.’s trial testimony and her out-of-court responses to the interviewer’s questions establish that the interview answers were not trustworthy. But in Harrison, the child victim contradicted her out-of-court statements by recanting them prior to trial and yet we upheld the district court’s determination that there were sufficient guarantees of trustworthiness to admit hearsay evidence of those out-of-court statements. See 296 F.3d at 995, 999, 1003‒07.
We conclude, then, that the district court did not abuse its discretion in finding that P.G.’s responses during the recorded interview had sufficient guarantees of trustworthiness. Admittedly,
[d]etermining whether a statement has “circumstantial guarantees of trustworthiness” is not an easy task. There is no hard science of credibility. . . . But in the absence of scientific results, the chief guide must be human experience. As courts grapple with the issue, the collective experience of judges who participate in the decisions—together with the experience of the commentators who critique them—gradually emerges. In the interim, however, the wisest course is to defer to the sound discretion of the trial judge, who has unequaled experience in witnessing battles over credibility.
2. The recorded interview was more probative than other evidence that the Government could have obtained through reasonable efforts
Rule 807’s second requirement is that the hearsay statements—here, P.G.’s responses during the recorded interview—be “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.”7
Burgess contends that, instead of using the recorded interview, the Government should have asked P.G. on redirect about her inconsistent answers as to the sexual acts Burgess committed on the day in question. In fact, the Government did ask P.G. briefly on redirect about the specific acts of abuse that occurred on that Friday. She responded that on the day Burgess anally penetrated her, he did not put his “private” in her mouth; “[t]hat wаs on a different day.” (III R. 175.) That was inconsistent with some of her direct testimony.
Even when a child witness is available and has testified, however, courts have admitted hearsay evidence of the child’s prior out-of-court statements about sexual abuse, deeming those out-of-court statements to be more probative than the child’s in-court testimony. This court, for example, concluded in Harrison that a child’s prior out-of-court statements to investigators were admissible at trial when the fourteen-year-old child recanted her accusations against the defendant before and during trial and the hearsay evidence was the only evidence of certain details of the alleged abuse. 296 F.3d at 995-96, 999–1000, 1003‒07.
In United States v. W.B., 452 F.3d 1002 (8th Cir. 2006), the Eighth Circuit upheld the trial court’s decision to permit a forensic interviewer to testify at trial as to an eight-year-old child’s responses during an interview after the child’s testimony about sexual abuse at trial “was inconsistent and unclear.” 452 F.3d at 1004; see also id. at 1003‒06.
while Congress intended the residual hearsay exception to “be used very rarely, and only in exceptional circumstances,” S.Rep. No. 1277, 93d Cong., 2d Sess., at 20 (1974), exceptional circumstances generally exist when a child sexual abuse victim relates the details of the abusive events to an adult. . . . Here, the trial testimony of [the child] T.P. was inconsistent and at times unclear. The testimony of [the adults regarding what the child told them about the sexual abuse] aided the jury in its fact finding task to determine whether T.P.’s allegations were true. The admission of this hearsay testimony was thus in the interest of justice and consistent with the requirements of Rule 807.
Id. The Eighth Circuit, therefore, held that the district court had not erred, let alone plainly erred, in admitting the adults’ hearsay testimony under Rule 807. Id. at 892‒93.
The Sixth Circuit, in United States v. Wandahsega, 924 F.3d 868 (6th Cir. 2019), upheld the admission of testimony from two adults about what a six-year-old child had told them about his being sexually abused. Id. at 874, 881‒82. In particular, the court held that the adults’ testimony was more probative on the point for which it was offered
We do not derive any per se rule from these cases. They establish only that the district court has discretion to permit hearsay testimony about a testifying child’s out-of-court statements about sexual abuse under Rule 807’s residual exception to the rule against hearsay. In Peneaux, the Eighth Circuit noted, in reviewing the trial court’s decision to admit such hearsay under Rule 807, that “‘a deferential standard of review’ is appropriate where the district judge ‘was able to watch and listen to the witnesses as they testified.’” 432 F.3d at 893 (quoting United States v. Shaw, 824 F.2d 601, 609 (8th Cir. 1987), abrogated on other grounds by Wright, 497 U.S. 805 (1990)). The same is true in this case. Affording that deferential review to the district court’s Rule 807 ruling, we cannot say that the district court abused its discretion in determining that the recorded interview was “more probative on the point for which it is offered“—what sex acts Burgess committed against P.G. on Friday, April 19—“than any other evidence that the proponent can obtain through reasonable efforts,”
Although Rule 807, the residual exception to the rule against hearsay, applies only rarely, in extraordinary circumstances, we cannot conclude that the district court abused its discretion in applying Rule 807 in this case to admit into evidence the recorded forensic interview with P.G.8 We turn next to Burgess’s other arguments challenging his convictions. None of those arguments warrant relief, either.
B. The district court did not abuse its discretion by giving jurors the video of the recorded interview, along with all the other exhibits, to have during their deliberations
Having determined that the district court properly admitted the recorded interview into evidence, the district court had discretion to permit jurors to have that recording, along with the other admitted exhibits, during their deliberations. See Marquez v. City of Albuquerque, 399 F.3d 1216, 1224 (10th Cir. 2005) (“‘The transmittal of exhibits to the jury is ordinarily a matter within the discretion of the trial court and will not be reversed in the absence of clear prejudice to the defendants.’” (quoting United States v. de Hernandez, 745 F.2d 1305, 1308 (10th Cir.1984))). We cannot
C. There was no prosecutorial misconduct warranting a new trial
Burgess contends that there were two instances of prosecutorial misconduct that warrant a new trial. We disagree.
1. Prosecutor’s cross-examination
Burgess first argues that the prosecutor, while cross-examining Burgess, improperly asked him to comment on P.G.’s veracity. During direct examination by Burgess’s attorney, Burgess denied P.G.’s specific accusations of sexual abuse. Direct examination concluded with the following:
Q Do you have any idea why P.G. would say that about you?
A I have no clue.
Q Do you know whether it is true?
A Yeah I know whether it is true or not.
Q Why is that?
A Because I didn’t do it.
Q What didn’t you do?
A Touch P.G.
(III R. 439‒40.)
In cross-examining Burgess, the prosecutor asked him if he had heard P.G.’s testimony and the recorded interview played at trial. Burgess indicated he had. The cross-examination continued:
A No.
Q Why she would make up something? Is that what you are telling us, that she made this up?
A Yes.
Q You would agree with me that P.G. is a smart, young lady, correct?
A Yes.
. . . .
Q So you want us to believe that she is that clever, that she is that intelligent to make up all of that detail?
[DEFENSE COUNSEL]: Objection to the form of the question.
THE COURT: Overruled.
. . . .
A Yes.
. . . .
Q That she had the wherewithal to think about I am going to do this at a friend’s house to a friеnd in hopes that someone overhears us. She is that clever? You want us to believe that?
[DEFENSE COUNSEL]: Argumentative.
THE COURT: Overruled.
. . . .
A I guess.
. . . .
A Yes.
Q And that she had the planning at seven to think . . . Ashley is going to tell my mom and my mom is going to take me to the cops and then the cops are going to take me for an interview and these are the things that I am going to tell them?
[DEFENSE COUNSEL]: Objection, compound question.
THE COURT: Overruled.
. . . .
Q Is she that bright, is she that clever?
A I am not sure.
. . . .
Q Because she is just that incredibly clever?
A I guess.
(Id. at 468–70, 472.)
Burgess acknowledges not initially objecting to this line of questioning. But, because he eventually did intersperse objections during this challenged cross-examination, we will review this prosecutorial misconduct argument de novo. See United States v. Pulido-Jacobo, 377 F.3d 1124, 1134 (10th Cir. 2004) (reviewing allegations of prosecutorial misconduct de novo). In conducting this de novo review, we consider 1) “‘whether the conduct was, in fact, improper’” and, if so, 2) whether that improper conduct “‘warrants reversal.’” United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996) (quoting United States v. Lonedog, 929 F.2d 568, 572 (10th Cir. 1991)).
a. It is not clear that the challenged cross-examination was improper
Burgess has failed to identify any Tenth Circuit case that has held that it is improper for a prosecutor to ask a defendant on cross-examination whether it is the defendant’s view that a previous government witness had lied in his or her trial testimony. This court has previоusly declined to adopt such a rule. See United States v. Williamson, 53 F.3d 1500, 1521‒23 (10th Cir. 1995); see also United States v. Dixon, 38 F. App’x 543, 548 (10th Cir. 2002) (unpublished) (stating that, “[i]n Williamson, this court declined to adopt a per se rule that it is misconduct for a prosecutor to force a defendant to testify that other witnesses have lied“). Moreover, courts that have held such cross-examination is improper do allow such questioning when a defendant opens the door by testifying on direct that a government witness has lied. See United States v. Schmitz, 634 F.3d 1247, 1270 (11th Cir. 2011). That is what occurred here. Courts also permit a prosecutor to cross-examine the defendant on a government witness’s motive to testify against the defendant when the defendant raised motive of the government witness on direct examinаtion, see United States v. Cole, 41 F.3d 303, 309 (7th Cir. 1994) (citing United States v. Akitoye, 923 F.2d 221, 224 (1st Cir. 1991)).
b. Even if this questioning was improper, the challenged cross-examination does not warrant reversal
Even if the prosecutor’s challenged cross-examination of Burgess was improper, it would not warrant reversal. The Government did not focus on this cross-examination
2. Prosecutor’s rebuttal closing
In his rebuttal closing, the prosecutor misstated the evidence: “And as far as anal sex goes, who said anal sex? [P.G.] said that his penis touched her poo hole. That doesn’t mean that he, in fact, inserted it. It is the touching, it is the touching. That is something very different.” (III R. 515.) In fact, P.G. did testify that Burgess inserted his penis “into her butt.” (Id. at 171‒72.)
Because Burgess neither objected to this misstatement of the evidence nor asked for surrebuttal argument, however, we review this prosecutorial misconduct
D. Cumulative error
Lastly, we reject Burgess’s argument that his convictions should be reversed because of the cumulative error occurring during his trial. The only possible errors we noted were at most the prosecutor’s arguably improper questions and closing argument. One of those alleged errors was preserved; the other was not. See United States v. Starks, 34 F.4th 1142, 1169‒70 (10th Cir. 2022) (explaining cumulative-error analysis where some errors are preservеd and others are not). But, in any event, we have already concluded that neither of those errors warranted
IV. CONCLUSION
Although