Lead Opinion
Jade Shilo Oldrock was convicted of the aggravated sexual abuse of .a child and committing a felony sex offense as a registered sex offender, pursuant to 18 U.S.C. §§ 1153, 2241(c), 2247, 3559(e), and § 2260A, The district court
I. Background
H.L., a minor, stayed up late watching a movie at her home in Fort Totten, North Dakota. She fell asleep on the couch. Ol-drock, H.L.’s relative, was homeless at the time and intermittently sleeping over at the family residence. H.L. awoke in the night to find her blue jeans unzipped and Oldrock lying next to her using his hand to reach inside her underwear and touch her genitals. She got up and rushed upstairs to her bedroom. H.L. attempted to barricade her bedroom door with books and “anything else [she] could find” because the lock was broken. H.L. changed into loose-fitting trunks and a tank top and “bundled [herself] up in a blanket.” She eventually fell back asleep.
H.L. awoke once again. Oldrock had gained entry to her bedroom and was sitting on her bed with his hand underneath her trunks. She sat up, and Oldrock got off the bed. He immediately went to a box of old phones on the night stand and began asking H.L. about them. H.L. sat .in silence until Oldrock left the room, When she heard what sounded like Oldrock exit the front door, H.L. “waited to make sure he was gone.” She then left the house and walked to her older sister’s home—where she ordinarily got ready for school in the morning. H.L. quietly entered her nieces and nephews’ bedroom and crawled into bed.
About four months later, H.L. told her older sister about Oldrock’s actions. The two sisters notified their father, and the three of them went to the police station to make a report. Per protocol, law enforcement arranged for H.L. to be interviewed at the Red River Children’s Advocacy Center (RRCAC) in Fargo, North Dakota, Jill Perez, the program coordinator and a forensic interviewer for RRCAC, interviewed H.L. The facts developed in this interview led to Oldroek’s indictment. Investigators interviewed another minor, T.O., about an unrelated incident. During this interview, T.O. described a similar encounter with Oldrock. One night while staying at Oldrock’s home, T.O. awakened to Oldrock’s hand underneath her pajamas, touching her genitals.
Oldrock moved to exclude the testimony of T.O. and Perez. The district court denied Oldrock’s motion as to T.O., subject to a judicial relevance finding, and granted Oldrock’s motion as to Perez, except “as to whether or not the techniques used [in the interview] were consistent with her training.” At trial, T.O. and Perez generally testified within these parameters. On direct examination, however, the .government elicited one response from Perez that went beyond the district court’s limitations:
The recommendations that we had for [H.L.] that day were trauma counseling, no contact with Jade Shilo Oldrock, and a medical examination.
Defense counsel immediately moved to strike this statement, and the court granted the motion, instructing the jury to disregard the answer. Defense counsel subsequently moved for a mistrial based on this statement, which the court denied. After three days of trial,'the jury convicted Ol-drock.
On appeal, Oldrock argues that the district court abused its discretion by admitting unduly prejudicial testimony' from T.O. and Perez and for denying his motion for mistrial. We examine these arguments in turn.
A. T.O.’s Testimony
“We review a district court’s evidentiary rulings for abuse of discretion.” United States v. Never Misses A Shot,
Evidence of prior bad acts is generally inadmissible to show a defendant’s propensity to commit the charged crime. But, Congress adopted Federal Rule of Evidence 413 to allow such evidence in sex-offense cases. See United States v. Hollow Horn,
Oldrock argues that the district court abused its discretion in determining whether T.O.’s testimony met the relevance test. Under Federal Rule of Evidence 104(b), “[w]hen the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.” Fed. R. Evid. 104(b); see also United States v. Armstrong,
The district court conducted a hearing on T.O.’s testimony to determine Rule 104 relevance. In that hearing, T.O. explained that during her initial forensic
Now if you watch the video, the forensic interview video, and you watch it carefully I think what we’re really dealing with here is an imprecision on the part of this child as to reporting her emotional state, right? She says angry and it’s apparent that what she means to say is frustrated, all right? And her frustration is actually fairly apparent in the video. I mean, as a parent of young children when you do that deal where you lay down in the middle of the chair kind of demonstrating like this (indicating) that’s a pretty clear indication of frustration, like they’re sending a message: I’m [bored]. I’m tired of this. I don’t want to talk to you.
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It’s also apparent that the focus of this interview was not to find out if Jade Shilo Oldrock had at any point had any inappropriate sexual contact with [T.O.] but to find out whether or not [T.O.’s] father was guilty of physical abuse against her and whether or not [T.O.] observed physical abuse of her siblings by her father.
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By the time they finally get back to any discussion about Mr. Oldrock’s-involvement in the case [T.O.] is once again demonstrating signs that she’s had enough of this discussion.
Combining T.O.’s explanation for her story change and the video of the forensic interview, the court determined that a preponderance of evidence established the foundation for T.O.’s testimony. We agree. T.O.’s testimony and subsequent explanation show the relevance of the prior bad act. The crux of Oldrock’s claim is that T.O.’s changed story negates its credibility and thus its relevance to the current crime. If believed, T.O.’s testimony would render Oldrock’s prior conduct relevant to the instant offense. The inconsistency in T.O.’s testimony may damage its credibility, but it does not negate its competence as the court found that a preponderance of the evidence supported the existence of the facts T.O.. represented.
T.O.’s testimony met the relevance standard, and its probative value is not outweighed by unfair prejudice under Federal Rule of Evidence 403. “Rule 413 evidence is' always prejudicial, but Rule 403 only prevents unfairly prejudicial evidence.” United States v. Strong,
Oldrock raises two challenges to Perez’s testimony. He argues that the district court abused its discretion in admitting her testimony because it lacked relevance and served as improper expert testimony. He also argues that Perez’s improper statement regarding her recommendations for H.L. constituted prejudicial vouching. Oldrock contends that the district court abused its discretion by failing to grant a mistrial on this basis.
1. Relevance
Oldrock claims that Perez’s testimony fails the relevance standard of Federal Rule of Evidence 401 béeause it lacks “any tendency to make a fact more or less probable.” Fed. R. Evid. 401(a). Perez’s testimony, however, was presented to describe the process of the forensic interview, to explain the lack of physical evidence, to describe the investigative process, and, in the government’s words, to help “foreclose any argument that the forensic interview process itself influenced the victim’s testimony.” Oldrock claims that these reasons lack relevance to the main issue at trial—his guilt. This argument, however, misunderstands Rule 401, under which “[t]he standard for relevancy is low.” United States v. Holmes,
In United States v. Littlewind, we affirmed the admission of similar testimony because it “provided relevant information which helped the jury understand [the] investigative process.”
2. Lay Testimony
Next Oldrock claims that Perez, testifying as a lay witness under Federal Rule of Evidence 701, offered impermissible expert testimony without being qualified as an expert under Federal Rule of Evidence 702, and that the .district court abused its discretion by allowing this admission. “Rule 701 provides that if a witness is not testifying as an expert, then any testimony by the witness expressing his or her opinion or inferences is limited to those that are rationally based on the witness’s perception and helpful to understanding the witness’s testimony or determining a fact in issue.” United States v. Smith,
The district court granted Oldrock’s motion to exclude expert testimony from Perez, but the court permitted Perez to testify to her lay perceptions of H.L.’s interview. In Smith, we determined that a forensic interviewer could “give her lay opinion based on her personal knowledge and perception” of a minor and describe “her experience performing forensic interviews of allegedly abused children” without offending Rule 702. Id. at 983. Because the interviewer relied “exclusively on her ex
3. Denial of Mistrial
Finally, Oldrock claims that Perez impermissibly vouched for H.L. by mentioning her recommendations for H.L., and that the district court abused its discretion in denying his motion for mistrial. “We. review a motion for mistrial under an abuse of discretion standard.” United States v. Espinosa,
Here, the district court immediately struck the “offending” statement and instructed the jury to disregard it. When Oldrock moved for a mistrial based on the statement, the court said:
I think that the Court has stricken the evidence., I don’t see. it as particularly prejudicial. It’s slight in comparison to all the other evidence that’s been .received, if. there’s any prejudice at all. The jury I think is diligent, honest,. and I believe that they will set it aside.
Despite the strike and the curative instruction, Oldrock argues that Perez’s statement created incurable prejudice because it impermissibly vouched for H.L. by implying that Perez believed that (1) H.L. suffered a trauma; (2) Oldrock committed that trauma; and (3) the trauma was sexual in nature. Perez’s statement, however, does not necessarily imply any such beliefs. She testified that the recommendation of a medical exam is typically scheduled for any allegation of “skin-to-skin contact.” Counseling is typical- for children complaining of assault, and it is reasonable to tell a child to stay away from her alleged attacker, regardless of that person’s guilt or innocence. Fundamentally, Oldrock argues that the statement provided impermissible vouching for H.L.’s credibility. See United States v. Roundtree,
“It is generally within the discretion of the district court to decide whether the fairness of a trial has been compromised by prejudicial testimony....” Espinosa,
III. Conclusion
Accordingly, we affirm the district court’s judgment.
Notes
. The Honorable Ralph R. Erickson, United State District Judge for the District of North
. Oldrock also argues that T.O. committed perjury while testifying, but the record reflects T.O.’s confusion in answering some questions and her attempt to clarify her statements for truthfulness.
Dissenting Opinion
dissenting.
In my view, the district court abused its discretion by allowing Perez to testify about the forensic process and her opinions of H.L.’s interview. Perez’ testimony “presented a serious risk that the jury would believe she had special insight into the veracity of [H.L.j’s allegations—improperly bolstering [H.L.j’s credibility.” Littlewind,