UNITED STATES оf America, Plaintiff-Appellee, v. J.A.S., JR., a juvenile male, Defendant-Appellant.
No. 15-2480
United States Court of Appeals, Sixth Circuit.
Argued: February 2, 2017. Decided and Filed: June 12, 2017
858 F.3d 543
Before: GIBBONS, COOK, and KETHLEDGE, Circuit Judges.
OPINION
KETHLEDGE, Circuit Judge.
In February of 2014, the eight year-old victim in this case, whom we refer to as KV, accused her seventeen year-old uncle, whom we refer to as JAS, of sexually abusing her on tribal land. Specifically, she said that JAS had vaginally raped her, though she did not use that term. The FBI soon interviewed KV, who described the assault to an interviewer who had conducted more than 5,000 such interviews. JAS was thereafter charged with an act of juvenile delinquency, to wit, sexual abuse of a child under the age of twelve in violation of
In February 2014, KV lived with JAS, JAS‘s father, and her paternal grandmothеr in a home on tribal land in Michigan‘s Upper Peninsula. On February 20, KV went out to lunch with her mother, Shannon Lehre, and KV‘s maternal grandmother, Kathy Noel. Lehre and Noel discussed a local man named Dаle Betlam, who had recently been convicted of sexually abusing his daughter Jessica—one of KV‘s closest friends. Lehre told KV that she should speak up if anybody ever hurt her like that. KV responded that JAS had “done that to [her].” That evening, Lehre questioned KV about what, exactly, JAS had done. KV said that she and JAS had been home alone together on February 18 and that JAS had “put his pee in [her].”
Lehre contacted the tribal police the next morning. About a week later, two nurses examined KV for evidence of sexual assault. KV told the nurses that JAS had “put his thing in [her] thing,” which had “hurt.” The nurses’ examinatiоn revealed no evidence of vaginal injury.
The tribal police promptly referred KV‘s case to the FBI. Catherine Connell—an FBI child-forensic interviewer with 28 years’ experience—intеrviewed KV about the alleged assault. KV said that she and JAS were home alone on February 18, that she had gone into JAS‘s room to play videogames with him, and that minutes later JAS had pulled down both his pants and hers, covered her eyes with his hand, and put “his thing in [hers].” She also said that, when JAS was done, he had threatened to kill her if she told anyone about the incident. KV further said that she had run from JAS‘s room and loсked herself in
KV testified at JAS‘s bench trial, again describing the February 18 incident essentially as she described it to Connell. On cross-examination, JAS‘s attorney tried to impeach KV by pointing out that some aspects of her trial testimony were new (e.g., that JAS had put his hand on her thigh before the assаult) and by highlighting some collateral points on which her testimony and her prior descriptions supposedly differed. The government then moved to admit the video of Connell‘s interview with KV. The defense objected on hearsay grounds, but the court eventually admitted the video as substantive evidence.
JAS now argues in his brief that the video of KV‘s interview with Connell was inadmissible hearsay. We review the district сourt‘s evidentiary ruling for an abuse of discretion. United States v. Carpenter, 819 F.3d 880, 891 (6th Cir. 2016).
The district court admitted the video under Federal Rule of Evidence 807, which sets forth the so-called residual exception to the hearsay rulе. JAS contends that the video did not meet the rule‘s requirements for admissibility. But whether it did is beside the point because—as JAS‘s counsel, to his credit, largely conceded at oral argument—the video wаs plainly admissible under another rule, namely Rule 801(d)(1)(B)(ii). That rule allows for the admission of prior out-of-court statements of a trial witness (here, KV) if three requirements are met: first, the statements are сonsistent with the witness‘s testimony; second, the statements are offered to rehabilitate the witness after an opposing party has tried to impeach her “on another ground“; and third, the opposing party is able to cross-examine the witness about the prior statements. All three requirements were met as to the video here: KV‘s description of the rape during her interview with Connеll was largely consistent with her description of it during her testimony at trial; the government moved to admit the video after JAS sought to impeach KV on collateral grounds; and JAS‘s counsel not only had thе ability to cross-examine KV about the video but in fact did so. Hence the district court properly admitted the video.
JAS also challenges the sufficiency of the evidence supporting thе district court‘s finding that he sexually assaulted KV in violation of
Here, the criminal information specified that the unlawful sexual act was “contact between the penis and the vulva,” which for purposes of § 2241 means “penetration, however slight.”
To prove penetration, the government introduced KV‘s testimony and her out-of-court statements аbout the assault. Specifically, KV testified that JAS pulled down both his and her pants, and then “put his pee in [her] pee.” In addition, when the prosecutor asked KV where her “pee” was, she pоinted to her groin and confirmed that she was referring to the “private area ... between [her] legs.” KV also explained that, although JAS had covered her eyes during the assault, she knew that his “pee” was in her vagina because she “felt it,” and it “hurt bad.” Finally, KV said that, hours after the assault, she urinated and her “pee” burned “like it was on fire.”
JAS points to four cases from other circuits that he says support the opposite conclusion. As an initial matter, none of those cases bind us here. And in all four cases the government‘s evidence of penetration was not as specific as it is here. In United States v. White Bull—where the defendant was charged with “intentional touching, not through the clothing, of [a child‘s] genitalia,” see
The remaining case we probably disagree with, though it too is easy enough to distinguish. In United States v. IMM, the defendant again was charged with “contact between the penis ... and the anus.” 747 F.3d 754, 757 (9th Cir. 2014) (quoting
Finally, JAS argues that medical evidence proves that his penis never entered KV‘s vagina. But JAS did not make that argument in his appellate brief, in which he described the medical evidence as “inconclusive.” Appellant‘s Br. at 38. That is reason enough to reject the argument. See Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 751 n.3 (6th Cir. 2015). The argument аlso fails on the merits. True, when the nurses examined KV, they found no evidence of vaginal injury. And JAS‘s expert, Dr. Stephen Guertin, testified that a girl of KV‘s age “wouldn‘t tolerate full penile vaginal intercourse withоut [sustaining] significant injury“—specifically, a “deep notch” or “complete transection” in her hymen. But Guertin conceded that intercourse does not always cause injury to a child‘s hymen. Morеover, Guertin said, injuries to the hymen heal quickly—so quickly that an injury that was readily apparent during “the first few days” after a child was abused might be hard to detect “beyond the seven-to-ten day range.” Here, the nurses examined KV more than a week after the charged incident. And Guertin
Thus, as Guertin conceded on cross-examination, the “physical examination in this case doesn‘t tell [us] ... anything.” A rational jury could therefore choose to believe KV‘s testimony notwithstanding the results of the examination.
The district court‘s judgment is affirmed.