Gary Flute, Sr., was charged with sexual abuse, incest, and aggravated sexual abuse of his two minor daughters in a nine-count indictment. After a jury trial, he was convicted on two counts of sexual abuse of A.F., one count of incest with A.F., and two counts of aggravated sexual abuse of Y.F. The jury found Flute not guilty on three other counts, and the district court granted his motion for judgment of acquittal on the remaining count. Flute filed a Motion for Judgment of Acquittal and a Motion for New Trial, alleging that the evidence was insufficient to sustain the jury’s verdict and that he was denied a fair trial because of improper comments made by the prosecutor. The district court denied both motions in a Memorandum Opinion dated October 23,- 2002. On February 26, 2003, the district court sentenced Flute to 180 months on his three counts against
Flute raises three issues on appeal. First, Flute claims that he was denied a fair trial because of prosecutorial misconduct. The basis for the claim is a comment made by the prosecution during the testimony of Chepa Valandra, a Bureau of Indian Affairs social worker. The defense objected to a question asked on direct examination, and in responding to the objection, the prosecutor said, in open court, that the defense “didn’t want this to come up.” The objection was sustained and the judge immediately instructed the jury to disregard the comment. To justify a new trial, a prosecutor’s comment must have been both improper and prejudicial to the substantial rights of the defendant.
United States v. Cruz-Padilla,
Assuming without deciding that the comment was improper, Flute’s argument fails because he cannot show prejudice. “In assessing the prejudicial impact of prosecutorial misconduct we consider: 1) the cumulative effect of the misconduct; 2) the strength of the properly admitted evidence; and 3) the curative actions taken by the district court.”
United States v. Wadlington,
Second, Flute claims that the evidence was insufficient to support the verdict. “When determining whether the evidence is sufficient to support a conviction, we view the evidence in the light most favorable to the verdict, giving it the benefit of all reasonable inferences.”
United States v. Carter,
Third, Flute claims that the court’s allowance of leading questions was an abuse of discretion. However, the use of leading questions is left to the discretion of the district court, and while leading questions are generally prohibited on direct examination, “[t]he child witness is a long-recognized exception to this rule.”
United States v. Butler,
The judgment of the district court is therefore affirmed.
