United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-4125

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

Duane Philip Bercier, *

*

Defendant - Appellant. *

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Submitted: June 12, 2007

Filed: November 1, 2007

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Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.

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LOKEN, Chief Judge.

A jury convicted Duane Bercier of aggravated sexual abuse and abusive sexual

contact in Indian country in violation of 18 U.S.C. §§ 2241(a)(1), 2244(a)(1), and

1153. The victim was his sister’s eighteen-year-old foster daughter, Cheryl Blue.

Bercier appeals the conviction, raising numerous issues. We reject the contention that

the evidence was insufficient to convict but conclude that the district court abused its

discretion in admitting hearsay testimony by an examining physician recounting in

considerable detail what the victim said in a hospital interview about the alleged

assault, including the assailant’s identity, and portions of a hospital record containing

the same hearsay. Because these errors were not harmless, we remand for a new trial.
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We leave open the question whether the two counts are multiplicitous because that

issue was not properly raised in the district court. 

I. Sufficiency of the Evidence

In March 2005, Bercier was living in the home of his sister, Joyce Poitra, with

Blue and other members of Poitra's family. Blue testified that Bercier and a female

companion returned home at approximately 12:30 a.m. on March 13 and entered

Bercier’s bedroom, previously Blue’s bedroom, where Blue was smoking and playing

a video game. Bercier and Blue played video games and began watching a movie.

Bercier's companion, who died before the trial, fell asleep. 

Blue testified that Bercier expressed romantic feelings and, when she stood up

to leave, grabbed her arm, sat her on the bed, and began kissing her and rubbing her

arm. Blue again stood up to leave. Bercier pulled her down on his lap and asked her

to have sexual intercourse. Blue declined. Bercier grabbed her hand and started

rubbing it on top of his penis. Blue protested and again attempted to leave. Bercier

pushed her back on to the bed, put his hand and then his head up her shirt, and touched

and kissed her breasts. Blue tried to push him away and told him she did not like what

he was doing. Bercier put his hands and head between her legs, pushed her panties

to the side, put his fingers in her vagina, and engaged in oral sex. Blue tried to press

her legs together, but Bercier held them apart. When Blue started crying, Bercier told

her to go to bed, and she left. Bercier admitted in a stipulation that he performed oral

sex on Blue and that his saliva was found on her panties and sanitary napkin. He

testified that the entire incident was consensual.

The indictment charged Bercier with the use of force, an element of both

offenses, aggravated sexual abuse and abusive sexual contact. See 18 U.S.C.

§§ 2241(a)(1) and 2244(a)(1). On appeal, Bercier argues there was insufficient

evidence that he used force. We will reverse only if no reasonable juror could have
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found Bercier guilty, reviewing the evidence in the light most favorable to the

government and accepting all reasonable inferences supporting the verdict. United

States v. Crow, 148 F.3d 1048, 1050 (8th Cir. 1998) (standard of review).

Bercier argues that he never threatened Blue, did not injure her, did not use a

weapon, and let her leave the room when she did not respond the way he hoped. “At

the very worst,” Bercier argues, “Blue described a clumsy effort . . . at seduction.”

However, the element of force is satisfied by showing “the use of such physical force

as is sufficient to overcome, restrain, or injure a person; or the use of a threat of harm

sufficient to coerce or compel submission by the victim.” United States v. Allery, 139

F.3d 609, 611 (8th Cir.), cert. denied, 524 U.S. 962 (1998), quoting H.R. Rep. No. 99-

594, at 14 n.54a (1986), reprinted in 1986 U.S.C.C.A.N. 6186, 6194 n.54a. Blue

testified that Bercier pushed her back on the bed and would not let her push him away

when he put his head and hand up her shirt and began touching and kissing her

breasts. Then, Bercier forcibly held her legs apart while he performed oral sex. If

credited by the jury, this was sufficient evidence of the use of force. The district court

did not err in denying Bercier’s motion for acquittal on both counts. 

II. Hearsay Issues 

At trial, Blue testified that, after leaving Bercier's bedroom, she called boyfriend

A. J. Newcomer and told him she had been assaulted. Newcomer drove to the Poitra

home and took Blue to a local hospital. An emergency room nurse, Phylomine Houle,

examined Blue, and a physician, Dr. Angela Erdrich, interviewed Blue and treated her

for sexual assault. After Blue testified, the next three witnesses were Newcomer,

Nurse Houle, and Dr. Erdrich. Each testified over defense objections to what Blue

told them in the morning hours about the encounter. Bercier argues that the district

court abused its discretion in admitting this hearsay testimony. He further challenges

the admission of the hospital's Ambulatory Encounter Report containing Dr. Erdrich's

detailed notes of what Blue said during the interview.
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The government argues there was no error in admitting this testimony because

the “primary justification” for excluding hearsay is the lack of opportunity to crossexamine an absent declarant, and Blue testified at trial. The district court apparently

agreed, because its explanation for overruling Bercier's objection was that “the

statements probably qualify as hearsay, but they're the same statements which the jury

has already heard, so I see really no problem with admitting and letting the continuity

of testimony flow.” The problem with this reasoning is that the Supreme Court

rejected the same contention in Tome v. United States, 513 U.S. 150, 163-65 (1995).

Blue's hearsay statements were consistent with her trial testimony and were

offered as substantive evidence of Bercier's guilt, not for the limited purpose of

rehabilitating Blue's credibility at trial. Compare United States v. Andrade, 788 F.2d

521, 532-33 (8th Cir.), cert. denied, 479 U.S. 963 (1986), with United States v.

Lozada-Rivera, 177 F.3d 98, 103-04 (1st Cir. 1999). Rule 801(d)(1)(B) of the Federal

Rules of Evidence provides that a trial witness's prior consistent out-of-court

statement is not hearsay if it is “offered to rebut an express or implied charge against

the declarant of recent fabrication or improper influence or motive.” In Tome,

resolving a conflict in the circuits, the Court held that, to be admissible as non-hearsay

under Rule 801(d)(1)(B), a prior consistent statement must have been made “before

the charged recent fabrication.” 513 U.S. at 167 (emphasis added). Here, Bercier's

defense at trial was that Blue fabricated her story of non-consensual sexual assault

immediately after leaving his bedroom. As the alleged fabrication occurred before her

out-of-court statements to Newcomer, Nurse Houle, and Dr. Erdrich, Rule

801(d)(1)(B) does not apply. See United States v. Beaulieu, 194 F.3d 918, 920 (8th

Cir. 1999). In these circumstances, each statement was admissible only if it fell within

one or more of the hearsay exceptions in Rule 803. See United States v. Kenyon, 397

F.3d 1071, 1081-82 (8th Cir. 2005). 

For these reasons, the district court's rulings, as the court explained them,

reflected an incorrect interpretation of the Federal Rules of Evidence as construed in
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Tome. However, “we are not bound by the grounds on which the district court

admitted the evidence, as it is a well-settled principle that we may affirm a district

court’s judgment on any basis supported by the record.” United States v. Levine, 477

F.3d 596, 601 (8th Cir.), cert. denied, 127 S. Ct. 3023 (2007) (quotation omitted). The

government argues on appeal that the hearsay testimony of each of the three witnesses

fell within one of Rule 803's hearsay exceptions. 

A. We have little difficulty upholding on this basis the district court's rulings

with respect to the first two witnesses, boyfriend Newcomer and Nurse Houle.

Newcomer testified that Blue told him “the basics of what happened” over the

telephone, but “she was crying too much,” so he went to her house. When he arrived

at the Poitra home, some fifteen to twenty minutes after Blue left Bercier’s bedroom,

she was shaking and crying uncontrollably, had trouble breathing, and could not stand.

Blue told him she had been sexually molested by her uncle. Newcomer comforted

her, told her “to go inside and get some clothes,” and took her to the hospital. The

government argues that, to the extent this testimony included out-of-court statements

by Blue, it was properly admitted under the excited utterance exception to the hearsay

rule. See Fed. R. Evid. 803(2). We agree. 

Rule 803(2) excepts an out-of-court statement “relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the

event or condition.” Blue's statements to Newcomer were made less than thirty

minutes after the incident, a lapse of time that does not make the statements

inadmissible for this reason. See United States v. Phelps, 168 F.3d 1048, 1055 (8th

Cir. 1999). As described by Newcomer, Blue's “condition at the time was such that

the statement was spontaneous, excited or impulsive rather than the product of

reflection and deliberation.” United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.

1980), cert. denied, 450 U.S. 1001 (1981). Therefore, the district court did not abuse

its discretion by admitting Newcomer’s testimony. 
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Nurse Houle testified that, when Blue arrived at the emergency room, Houle

tested her vital signs, which included a highly elevated pulse rate, made an initial

assessment, and reported this information on the Ambulatory Encounter Report.

Houle was then asked what Blue presented as her major complaint. The district court

overruled defense counsel's objection. Although the court should have required the

government to lay additional foundation, Houle's answer -- “she [Blue] stated that she

had been assaulted” -- was clearly admissible under Rule 803(4), the hearsay

exception for statements made for the purpose of obtaining medical diagnosis or

treatment. So long as the identity of the perpetrator is not disclosed, “a patient’s

statement describing how an injury occurred is pertinent to a physician’s diagnosis

and treatment.” United States v. Gabe, 237 F.3d 954, 957-58 (8th Cir. 2001). Thus,

the district court did not abuse its discretion by admitting Blue’s statement to a

medical examiner, Nurse Houle.

B. That brings us to the nub of the appeal, the hearsay testimony of Dr. Erdrich,

who testified immediately after Newcomer and Nurse Houle. Dr. Erdrich first

testified that she had received sexual assault response team training “through the

Department of Justice.” Consistent with that training, when Blue “came that morning

for a sexual assault exam” within 72 hours of the alleged assault, Dr. Erdrich “ask[ed]

the police to bring us a rape kit.” Dr. Erdrich then explained the steps involved in

using the rape kit -- gathering and bagging Blue's undergarments, collecting a DNA

sample from her cheek, putting head and pubic hair samples in an envelope, collecting

relevant debris in small bags, swabbing the vaginal area, interviewing the patient, and

conducting a physical exam. In Blue's case, Dr. Erdrich testified, the physical exam

revealed “a small area of abrasion on her labia and the vulva.” 

This preliminary testimony established that Dr. Erdrich was trained to perform,

and did perform, not only diagnosis and treatment of patient Blue, but also evidencegathering tasks relevant to any criminal prosecution that might ensue. The patient

interview was an important part of Dr. Erdrich’s forensic assignment, as well as her
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role as an emergency room treating physician. After testifying that she conducted a

“long interview” of Blue, Dr. Erdrich was asked:

Q. Do you recall what Cheryl Blue told you concerning the incident that

caused her to be in the emergency room?

[DEFENSE COUNSEL]: Your Honor, I'm going to renew my

objection.

* * * * *

THE COURT: All right. And I will overrule it. You may answer.

THE WITNESS: Yes, I do recall, and I've been able to review my

notes from that night, and may I state it or -- 

Q. ([THE PROSECUTOR] CONTINUING) Yes, you may. What --

what was the complaint that Cheryl came into the emergency room for?

A. She came in appearing extremely emotionally traumatized and stated

that her Uncle Manny [Bercier] had -- had sexually assaulted her, and

she said that he had gone -- gone down on her, and she described in

detail that night, what had happened. 

Q. And what did she tell you happened?

A. She said that he had come in and out of the house that night and had

come back around midnight, and she was playing Nintendo and he came

into a room where there's a TV and beckoned her to sit by him, and that

he started kissing her ear and her breasts and doing gross stuff and that

she -- that he started to have oral sex with her. And she pushed him

away and said no, and that he didn't seem to understand that she was

saying no. And she kept pushing him away, eventually was able to get

him to stop, that she was terrified because he had -- she had known him

to be violent in the past. 
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[DEFENSE COUNSEL]: Excuse me, Your Honor. I'm going to

object again on the basis that that has nothing to do with treatment or

diagnosis. 

THE COURT: Understand. That last statement doesn't add

anything to our picture. Then I will order that last statement stricken. 

Following Dr. Erdrich's testimony, the district court admitted, over defense counsel's

objection, the Ambulatory Encounter Record containing Dr. Erdrich's detailed notes

of what Blue said during the patient interview. The government argues on appeal that

both Dr. Erdrich's testimony and the Ambulatory Encounter Record were admissible

under Rule 803(4). We disagree. 

Statements made by a patient seeking medical diagnosis or treatment are

excluded from the hearsay rule because “a statement made in the course of procuring

medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility.” White v. Illinois,

502 U.S. 346, 356 (1992). Therefore, for a statement to be admissible under Rule

803(4), “the declarant’s motive in making the statement must be consistent with the

purposes of promoting treatment; and . . . the content of the statement must be such

as is reasonably relied on by a physician in treatment or diagnosis.” United States v.

Renville, 779 F.2d 430, 436 (8th Cir. 1985). 

Statements to a medical professional concerning the cause of an injury -- “I was

assaulted” -- are usually admissible under Rule 803(4). But statements identifying the

assailant are “seldom, if ever,” sufficiently related to diagnosis or treatment to be

admissible. Iron Shell, 633 F.2d at 84. Such statements may be admissible if the

identity of the abuser is relevant to treating the victim’s emotional or psychological

injuries. But the government must demonstrate that (i) the physician made clear to the

victim that inquiry into the abuser’s identity was essential to diagnosis and treatment,

and (ii) “the victim manifest[ed] such an understanding.” Renville, 779 F.2d at 438,
1

For example, Dr. Erdrich conducted a vaginal examination because Blue said

she had been digitally penetrated, but did not administer a pregnancy test or treat Blue

for sexually transmitted diseases because Blue said there was no intercourse. 

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followed in Gabe, 237 F.3d at 958, and in United States v. Turning Bear, 357 F.3d

730, 738 (8th Cir. 2004). 

Here, the government did not offer Dr. Erdrich's testimony and hospital notes

under Rule 803(4), so there was no foundation establishing that Dr. Erdrich told Blue

that the lengthy interview inquiring into the identity of the assailant and the details of

what happened were essential to her diagnosis and treatment. Nor was there evidence

Blue manifested such an understanding. Moreover, while some statements by Blue

to Dr. Erdrich were clearly relevant to diagnosis and treatment,1

 Dr. Erdrich’s

testimony and, to an even greater extent, her notes in the Ambulatory Encounter

Record related statements having no evident relationship to diagnosis and treatment,

strongly suggesting that the purposes of the interview went far beyond Dr. Erdrich's

role as a treating physician. The presence of law enforcement officers at the hospital

questioning Blue near the time of Dr. Erdrich's interview reinforce that inference. We

discern no relationship between diagnosis and treatment and Blue's detailed

description of the encounter to Dr. Erdrich. The physician's testimony relating that

hearsay simply bolstered Blue's earlier account of the same events. Finally, the

government offered no evidence establishing that the identity of Blue's assailant was

pertinent to Dr. Erdrich’s diagnosis and treatment. For these reasons, much of Dr.

Erdrich's testimony and notes relating what Blue said in the interview were not

admissible under Rule 803(4). As this evidence did not fall within another hearsay

exception, the district court abused its discretion by admitting it. Fed. R. Evid. 802.

A non-constitutional error admitting hearsay testimony “that does not affect

substantial rights must be disregarded.” Fed. R. Crim. P. 52(a); see United States v.

Chapman, 345 F.3d 630, 635 (8th Cir. 2003), cert. denied, 541 U.S. 955 (2004). An

error is harmless under Rule 52(a) “if the reviewing court, after viewing the entire
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record, determines that no substantial rights of the defendant were affected, and that

the error did not influence or had only a very slight influence on the verdict.” United

States v. Cortez, 935 F.2d 135, 140 (8th Cir. 1991), cert. denied, 502 U.S. 1062 (1992)

(quotation omitted). Evidence erroneously admitted is frequently found to be

harmless if it was cumulative, that is, if “other evidence to the same effect was

properly before the jury.” United States v. White, 11 F.3d 1446, 1451 (8th Cir. 1993)

(quotation omitted). Prior consistent statements of a trial witness are necessarily

cumulative -- they reiterate the witness’s trial testimony. Thus, we have held in more

than one case that admitting prior consistent statements that “merely bolstered a

witness’s credibility by repeating testimony already in evidence” was harmless error.

But we have recognized “[t]here could be circumstances, however, where that extra

helping of evidence can be so prejudicial as to warrant a new trial.” United States v.

Ramos-Caraballo, 375 F.3d 797, 802-03 (8th Cir. 2004) (quotation omitted); see

White, 11 F.3d at 1451. We conclude this is such a case. 

The improperly admitted testimony by Dr. Erdrich is strikingly similar to the

hearsay testimony of a physician’s assistant that we concluded was not harmless error

in Kenyon, 397 F.3d at 1082. As in Kenyon, the testimony of Blue, the victim,

buttressed by her prior consistent out-of-court statements to Newcomer and Houle,

was the sole basis for conviction; her testimony that the sexual acts were nonconsensual “was uncorroborated by physical evidence or witnesses to the alleged

abuse.” As in Kenyon, Bercier presented testimony that, if believed, contradicted

Blue’s account of the events leading up to the alleged assault, and he directly

challenged Blue’s testimony that the sexual acts were non-consensual. And as in

Kenyon, the hearsay recorded in the Ambulatory Encounter Record augmented Blue's

trial testimony by relating her prejudicial accusations that Bercier had a history of

violence and substance abuse, after the district court struck Dr. Erdrich's testimony

that Blue had accused Bercier of violence “in the past.” 
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The determinative factors for us in this case are, first, that the prosecution

turned on the credibility of Blue and Bercier, and second, that the hearsay testimony

and notes of Dr. Erdrich, a neutral health professional, confirmed Blue’s description

of the alleged sexual assault and events leading up to the assault, and added Blue's

prejudicial accusations that Bercier had a history of violence and substance abuse.

Much of this hearsay had no medical significance and was contradicted by Bercier.

Boyfriend Newcomer and Nurse Houle previously testified that, immediately after the

incident, Blue said she was sexually assaulted and named the assailant. The only

purpose in having Dr. Erdrich testify to the non-medical information gathered during

her interview, when she was acting as a de facto criminal investigator as well as a

health professional, was to bolster Blue’s trial testimony. In a case that turned entirely

on the credibility of Blue, this tipped the scales unfairly. We cannot conclude that

such an error was harmless. Bercier is entitled to a new trial. 

III. A Double Jeopardy Issue

Depending on the circumstances, aggravated sexual contact may be a lesserincluded offense of aggravated sexual abuse. See United States v. No Neck, 472 F.3d

1048, 1054 (8th Cir. 2007). Bercier argues that his convictions for both offenses

violated the Fifth Amendment’s Double Jeopardy Clause, invoking the familiar

principle that a defendant may not be convicted of both a greater and a lesser included

offense. “[T]he lesser offense . . . requires no proof beyond that which is required for

conviction of the greater . . . . The greater offense is therefore by definition the ‘same’

for purposes of double jeopardy as any lesser offense included in it.” Brown v. Ohio,

432 U.S. 161, 168 (1977). Bercier did not raise this issue in the district court, so our

review is for plain error. United States v. Honarvar, 477 F.3d 999, 1001 (8th Cir.

2007). 

The problem with this contention is that, while abusive sexual contact may be

a lesser included offense when a single criminal event is involved, aggravated sexual
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abuse is a different crime, and each may be violated during a series of distinct criminal

acts. Here, Blue’s testimony, which we must assume the jury credited for these

purposes, established that Bercier engaged in conduct that violated each statute during

the alleged assault. Touching and kissing Blue’s breast to gratify his sexual desire

was “sexual contact” that constituted abusive sexual contact when done by force or

threat. See 18 U.S.C. §§ 2244(a)(1), 2246(3). Digital and oral sex were “sexual acts”

that constituted aggravated sexual abuse when done by force or threat. See 18 U.S.C.

§§ 2241(a)(1), 2246(2)(B) and (C). The real question in these circumstances is one

that Bercier does not address -- were the two counts multiplicitous. In other words,

how many sex crimes does a defendant commit when he inflicts a series of distinct

sexual offenses on the victim during a single incident? See generally Gore v. United

States, 357 U.S. 386 (1958). 

We addressed this question in United States v. Chipps, 410 F.3d 438, 447-49

(8th Cir. 2005), which involved the crime of simple assault. The question turned, we

explained, on “whether Congress intended the facts underlying each count to make up

a separate unit of prosecution.” Id. at 447. To answer that question, we looked to

whether Congress intended to punish assault “as a course of conduct, such that the

first bit of assaultive conduct . . . is of a piece with the second bit . . . or whether

Congress sought to punish separately individual acts within an assaultive episode.”

Id. at 448. Our decision turned on an analysis of the statutory language, the statutory

scheme, and any relevant legislative history. After concluding that simple assault was

a course of conduct offense, we then applied the “impulse test” which “treat[s] as one

offense all violations that arise from that singleness of thought, purpose or action,

which may be deemed a single ‘impulse.’” Id. at 449, quoting United States v.

Universal C.I.T. Credit Corp., 344 U.S. 218, 224 (1952).

In this case, the district court instructed the jury, without objection, that Bercier

was charged with two offenses and that it must separately consider the evidence

pertaining to each offense. A number of cases have held that state court convictions
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for multiple sex offenses did not violate the Double Jeopardy Clause if, under state

law, “a defendant may receive multiple punishments for numerous sex offenses

rapidly committed with the sole aim of sexual gratification.” Rhoden v. Rowland, 10

F.3d 1457, 1462 (9th Cir. 1993); see Holdren v. Legursky, 16 F.3d 57, 62 (4th Cir.),

cert. denied, 513 U.S. 831 (1994); State v. James, 643 S.E.2d 34, 37-38 (N.C. Ct. App.

2007); State v. Cleveland, 614 N.W.2d 543, 550-51 (Wis. Ct. App. 2000). We have

not found a case thoroughly addressing this question in the context of the federal

sexual assault offenses here at issue. Cf. United States v. Torres, 937 F.2d 1469,

1471, 1475 (9th Cir. 1991); Pinson v. Morris, 830 F.2d 896, 897 (8th Cir. 1987), cert.

denied, 488 U.S. 829 (1988). As there was sufficient evidence that Bercier committed

two distinct sex offenses during the assault, there was no plain error. However, we

leave the question open for further development on remand. 

V. Prosecutorial Misconduct Issues

Bercier argues that the district court abused its discretion by denying his request

for a mistrial following two improper comments during the prosecutor’s rebuttal

closing argument. We have examined the brief comments in question. When defense

counsel objected to the first, the court responded, “Leave that one,” which was surely

an adequate caution. We doubt the second comment was error, and it certainly was

not error warranting grant of defense counsel’s tardy request for a mistrial. As the

comments were made during rebuttal, neither is likely to recur. We decline to

consider them further.

The judgment of the district court is reversed and the case is remanded for

further proceedings not inconsistent with this opinion.

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