1The Honorable Gary A. Fenner, United States District Judge for the Western District of

Missouri, sitting by designation.

2MN are not the victim's actual initials.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

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No. 98-3642SDP

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United States of America, *

*

Appellee, *

*

vs. * Appeal from the United States District

* Court for the Central Division of

John Running Horse, Sr., * South Dakota.

*

Appellant. *

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Submitted: March 12, 1999

 Filed: April 27, 1999 

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Before BEAM and HEANEY, Circuit Judges, and FENNER,1 District Judge.

FENNER, District Judge.

Appellant, John Running Horse, Sr., appeals his conviction, after trial by jury,

on ten counts in an eleven count indictment brought against him. The first ten counts

of the indictment against Running Horse dealt with his sexual contact with MN.2 The

eleventh count alleged sexual contact with another individual, SL. Running Horse

was
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acquitted on count eleven and convicted on all other counts. Running Horse was

sentenced to several concurrent terms of 370 months and 180 months.

MN had been living with Running Horse's mother upon placement by Tribal

Social Services. In August of 1993, Running Horse, his then girlfriend, Lisa Searby,

and Running Horse's three minor boys moved in with his mother and MN, staying

until January of 1995. In 1995, Running Horse moved with Ms. Searby and his boys

to another residence. The government alleged that between 1993 and 1997 Running

Horse sexually abused MN when MN was between the ages of 11 and 15. At the time

of trial, Running Horse was 31 years old. Running Horse argues six points of error

on appeal.

In his first point, Running Horse argues that the district court erred by refusing

to sever the first ten counts of the indictment from the eleventh count. Running Horse

argues that he should have been granted a separate trial on the first ten counts

alleging sexual abuse against MN and the eleventh count alleging sexual abuse

against SL. Running Horse indicates that he wanted to testify on Count XI but not

on Counts I through X.

Where the offenses are similar in character, occurred over a relatively short

period of time and the evidence overlaps, joinder is ordinarily appropriate. United

States v. McClintic, 570 F.2d 685, 689 (8th Cir. 1978). The trial court has a wide

range of discretion in matters of severance, and will be reversed only upon a finding

of clear prejudice and abuse of discretion. Id.

Even if the eleventh count had been severed, the evidence of Running Horse's

sexual abuse of SL would have been admissible against Running Horse on the first

ten counts under Fed. R. Evid. 413, which allows evidence of a defendant's other

offenses of sexual assault. Accordingly, Running Horse suffered no prejudice and

there was no
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abuse of discretion by the trial court not severing the first ten counts from the

eleventh count.

In his second point, Running Horse argues that the trial court erred in allowing

hearsay statements from Kristine Fondness and Nick Jansen. Kristine Fondness was

MN's band teacher and the person to whom MN first reported the sexual abuse by

Running Horse. Nick Jansen was the social worker to whom the case was referred.

The trial court permitted Fondness to testify that MN had reported the sexual abuse

to her and Jansen to testify that the case was referred to him and that he caused MN

to be moved out of the home. When both Fondness and Jansen testified, the trial

court instructed the jury that their testimony was not offered to prove that the matters

reported had occurred.

Preliminary information concerning the origin of an investigation, admitted

only for that purpose, is not hearsay. United States v. Cruz, 993 F.2d 164 (8th Cir.

1993). The statements in question were properly admitted. A review of the record

reveals that the trial court did not admit the testimony for the truth of the matter

asserted, which would make the statements hearsay, but admitted them as background

information to assist the jury in understanding the origin of the investigation of

Running Horse. The trial court did not err in allowing the testimony of Fondness and

Jansen. 

Running Horse's second point is denied.

In his third point, Running Horse argues that the trial court erred by allowing

the testimony of Dr. David Kaufman, a clinical psychologist, regarding hearsay

statements of MN and general psychological testimony relating to characteristics of

sexually abused children.
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Fed. R. Evid. 803(4) provides for the admission of "[s]tatements made for

purposes of medical diagnosis or treatment and describing medical history, or past or
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present symptoms, pain, or sensations, or the inception or general character of the

cause or external source thereof insofar as reasonably pertinent to diagnosis or

treatment." The record reflects that after Dr. Kaufman's qualifications were

established, he was allowed to testify regarding his clinical interview with MN. A

clinical psychologist is allowed to so testify. United States v. Provost, 875 F.2d 172,

177 (8th Cir. 1989). 

Running Horse's argument under this point that Dr. Kaufman should not have

been allowed to testify in regard to characteristics of sexually abused children is

clearly of no avail. In United States v. St. Pierre, 812 F.2d 417, 419-20 (8th Cir.

1987), this Court held that a clinical psychologist may testify to certain traits of

sexually abused children as compared to those exhibited by the victim as long as no

opinion is given as to whether the victim is telling the truth. Similarly, in United

States v. Whitted, 11 F.3d 782, 785 (8th Cir. 1993), this Court enforced the St. Pierre

rule and held that "in the context of child sexual abuse cases, a qualified expert can

inform the jury of characteristics in sexually abused children and describe the

characteristics the alleged victim exhibits." The government gave notice in this case

of its intent to use Dr. Kaufman as an expert. Dr. Kaufman never gave his opinion

as to whether MN was telling the truth. Rather, he recited the characteristics inherent

in sexually abused children and the characteristics that MN exhibited. 

Running Horse's third point is denied.

In his fourth point, Running Horse argues that the trial court erred by

dismissing juror Delphine LeCompte during the trial.

A district court's decision to remove or not remove a juror is reviewed for an

abuse of discretion. United States v. Wilcox, 50 F.3d 600, 603 (8th Cir. 1995). The

record clearly establishes that there was no abuse of discretion by the district court

removing juror LeCompte.
3

In his brief, Running Horse argues that it was error for the district court to fail to grant

judgment of acquittal for the reasons argued under this point on Counts I through VI. At oral

argument, Running Horse acknowledged that because his argument here is that there was not

sufficient evidence of force, the argument does not apply to Counts I and II which did not require

any element of force.

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During the trial, it was reported to the district court that juror LeCompte's

boyfriend, Eugene Smith, informed others that he told his girlfriend, juror LeCompte,

to vote not guilty because he wanted to go home. It was also reported that Smith had

been in a traffic accident driving juror LeCompte's vehicle, that he was intoxicated

and had been arrested for driving under the influence of alcohol, not having a driver's

license, leaving the scene of a property damage accident, and false impersonation

with intent to deceive a police officer.

Juror LeCompte was questioned about what Smith had said to her and she was

less than clear about her conversation with Smith. LeCompte's lack of clarity was

itself sufficient for the district court to excuse her as well as his opinion on how she

should vote, and the potentially distracting circumstances surrounding Smith's arrest

and damage to LeCompte's vehicle.

Running Horse's fourth point is denied.

In his fifth point, Running Horse argues that the district court erred in failing

to grant his motion for judgment of acquittal on Counts III through VI.3 Counts III

through VI related to the years 1994 through 1997 and alleged that Running Horse

engaged in sexual acts with MN by force (18 U.S.C. §2241(a)). Running Horse

argues under this point that the government's evidence was insufficient to show that

Running Horse forced MN to have sex with him. Running Horse argues that the

evidence established that any sexual contact was consensual.
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When reviewing a defendant's claim of insufficient evidence, the facts are

taken in the light most favorable to the verdict, giving the government the benefit of

all reasonable inferences that might be drawn from the evidence. United States v.

Jones, 990 F.2d 1047, 1048 (8th Cir. 1993). The evidence will be found insufficient

only if it is such that "reasonably minded jurors must have a reasonable doubt as to

the existence of any of the essential elements of the offense." United States v. Powell,

853 F.2d 601, 604 (8th Cir. 1988).

"Force" is not defined under the sexual abuse statutes. United States v. Jones,

104 F.3d 193, 197 (8th Cir. 1997). However, to establish force, as used in the sexual

abuse context, requires some proof "as is sufficient to overcome, restrain, or injure

a person; or the use of a threat or harm sufficient to coerce or compel submission by

the victim." United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990).

MN testified that she was afraid of Running Horse. MN stated that Running

Horse had hit her as a form of punishment and that this made her afraid of him. MN

testified that during the relevant period Running Horse abused her physically and

called her names. MN also testified that Running Horse forcefully used his legs to

cause her to spread her legs and that she was afraid when Running Horse used this

force on her. MN testified that she had told Running Horse she did not want to have

sex, but he would pull her toward him and that she would push away. MN testified

that she was scared when Running Horse came to her wanting to have sex, that

Running Horse made her have sex, and that she was afraid he would hurt her.

Running Horse argues that MN's statements were not always consistent, citing

an FBI report where MN stated that Running Horse never used force in any of their

sexual encounters. However, MN recanted her statement to the FBI and maintained

at trial that Running Horse had used force on her. MN testified that she was scared

when she talked to the FBI, that her statement to the FBI was not accurate, and that

Running Horse had in fact used force on her.
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The jury is entitled to evaluate the credibility of witnesses, and to weigh the

evidence presented to it. United States v. Rodriquez, 116 F.3d 1225, 1227 (8th Cir.

1997). It cannot be said that no reasonable trier of fact could have believed MN's

explanation of her statement to the FBI and her testimony at trial. 

The evidence at trial was sufficient to establish the element of force. Running

Horse's fifth point is denied.

In his final point, Running Horse argues that the district court erred by not

sustaining his objection to the imposition of a force enhancement at sentencing.

U.S.S.G. 2A.1(b)(1) provides for a four level increase of the base offense level

for an offense committed by means set forth in 18 U.S.C. §2241(a) or (b). Running

Horse's convictions under Counts III through VI were pursuant to 18 U.S.C.

§2241(a). Force proven sufficient to obtain a conviction under 18 U.S.C. §2241(a)

will also sustain an enhancement under U.S.S.G. 2A.1(b)(1). United States v.

Bordeaux, 997 F.2d 419, 420 (8th Cir. 1993). The district court assessment of a force

enhancement at sentencing was proper.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.