The Honorable Frank J. Magill was an active judge at the time this case was

1

submitted and assumed senior status on April l, 1997, before the opinion was filed.

THE HONORABLE RICHARD W. GOLDBERG, Judge, United States Court 2

of International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2978

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of South Dakota.

Willie Wright, *

*

Appellant. *

___________

Submitted: March 12, 1997

 Filed: July 10, 1997

___________

Before MAGILL and MURPHY, Circuit Judges, and GOLDBERG, Judge. 1 2

___________

MAGILL, Circuit Judge.

Willie Wright appeals his conviction for abusive sexual

contact and aggravated sexual abuse. Wright argues that:

(1) the evidence was not sufficient to sustain his
The Honorable Charles B. Kornmann, United States District Judge for the

3

District of South Dakota.

-2-

conviction; (2) the district court abused its discretion 3

in allowing leading questions 
-3-

during the government examination of the victim; (3) the

emergency room physician's testimony as to his sexual

abuse examination was improper bolstering; (4) the

district court both improperly allowed a government

expert to testify as to hearsay and prohibited the

defense from examining the expert regarding the victim's

prior inconsistent statements for the purpose of

impeaching the victim; and (5) he was denied a fair trial

by a juror's misconduct in not disclosing the juror's

relationship to a tribal children's court judge. We

affirm.

I.

This case involves the sexual abuse of a four-yearold girl. The girl, A. Doe, lived with her mother, I.

Doe, and her seven siblings on the Rosebud Indian

Reservation in South Dakota. Wright is the biological

father of I. Doe's youngest child and A. Doe's baby

brother. At the time of the abuse, I. Doe and Wright's

relationship had ended and Wright was not living with the

family. However, during late October and early November

of 1994, Wright babysat the children for I. Doe.

On November 2, 1994, A. Doe first reported the abuse

to a Head Start teacher's aide, Teresa Farmer. A. Doe

protested having to go home, and when Farmer asked A. Doe

why she did not want to go home, A. Doe stated that her

baby brother's dad was mean, used bad words, threw

things, and touched her. Trial Tr. at 40. A. Doe

pointed to her vagina when asked by Farmer where she was

touched. Id.
-4-

Following the initial disclosure, I. Doe, also a Head

Start worker, was summoned, and A. Doe again recounted

the touching to I. Doe. A. Doe told I. Doe that Wright

had "'touched me in a bad place'" and, when asked where,

pointed to her vagina. Id. at 68; see also id. at 87.

On the way home from Head Start, A. Doe also told I. Doe

that "'[h]e touched me with his pee-pee like [T. Doe's]

pee-pee.'" Id. at 73. T. Doe is A. Doe's older brother.

When asked where he touched her, A. Doe told I. Doe, "'On

my pee-pee, on my middle.'" Id.
-5-

Once at home, I. Doe confronted Wright with A. Doe's

accusations. Wright denied the accusations and stated,

"'[o]h, I don't care, nobody is going to believe a little

kid, anyway.'" Trial Tr. at 72 (testimony of I. Doe);

see also id. at 377. 

On November 3, 1994, A. Doe was examined by Dr. Luis

Lopez in the Indian Health Services Hospital Emergency

Room. A. Doe told Lopez that Wright "'went into the room

where she was sleeping, removed the covers, removed her

pants, and touch[ed] her on her pee-pee. She also

refer[ed] that he also put his pee-pee into her pee-pee,

and that she told him that it hurt.'" Id. at 102

(reading from emergency room record); see also id. at 96-

97. Dr. Lopez's medical examination revealed no physical

evidence of abuse.

On November 4, 1994, A. Doe again recounted the abuse

to Joanne Yankton, a State of South Dakota Child

Protection worker. Yankton asked A. Doe if anyone had

hurt her or did a bad touch to her. A. Doe pointed to

the vagina on a picture of a girl and said "'Willie

did.'" Id. at 218-19. At this interview, A. Doe also

stated that three times Wright had stuck two fingers

inside her. Id. at 219. 

On September 21, 1995, a three-count indictment was

filed against Wright. Wright was charged with one count

of abusive sexual contact and two counts of aggravated

sexual abuse. On October 2, 1995, Wright was arrested,

and at his arraignment on October 12, 1995, Wright pled

not guilty to all three counts.
-6-

Before trial, on February 24, 1995, and February 9,

1996, Margaret Pier, a licensed professional counselor

and school psychologist, interviewed A. Doe. A. Doe was

referred to Pier by the Federal Bureau of Investigation

(FBI). During the first appointment, A. Doe and Pier

prepared a picture of A. Doe's family. The picture was

drawn by Pier with A. Doe directing Pier. Upon the top

of the drawing Pier wrote A. Doe's statement, "'He moved

because he touched my bad part. I started telling mom

and she started fighting.'" Id. at 312.
-7-

At trial, the jury heard A. Doe testify that Wright

touched her:

Q[the prosecutor] When you were home with

Willie when he was baby-sitting, did he do

something to you that you didn't like?

A[A. Doe] Yeah.

Q Can you remember what he did to you?

A Unh-unh.

Q Did he touch you anyplace?

A Yeah.

Q Where did he touch you?

A In the private.

Q In your private parts?

A Yeah.

Q [A. Doe], I'm going to show you a picture of

a girl, and she's maybe a little bigger than you

are, which has been marked as Exhibit 4. And

I'm going to ask you to pretend that this girl

is you.

Can you take this magic marker and mark on

Exhibit 4 where Willie touched you?

A (Witness marking exhibit).

Q Okay. Make a black mark there where you

just touched.

A (Witness marking exhibit).
-8-
-9-

Q And what do you call the part where you just

made the mark?

A Middle.

MR. SEILER [the prosecutor]: Your Honor,

we'd ask the record to reflect that the witness,

on Exhibit 4, has made a black mark in the

vaginal area, and we would offer Government's

Exhibit 4.

Id. at 185-86.

The jury also heard A. Doe testify that Wright

touched his penis and her vulva:

Q[the prosecutor] Okay. Did he touch you

down there with his pee-pee?

A[A. Doe] Yeah.

Q I'm going to show you another drawing, [A.

Doe], which has been marked as Government

Exhibit 3. And I'm going to ask you to pretend

that this is Willie.

Can you take this magic marker and put a

circle around the part that Willie touched you

with?

A (Witness marking exhibit)

MR. SEILER [the prosecutor]: Your Honor,

we'd ask the record to reflect that the child

has circled the penis of the anatomically

correct drawing, and we would offer Government's

Exhibit 3 at this time.

Id. at 186-87; see also id. at 188-89.
-10-

On April 24, 1996, the jury returned a guilty verdict

on Count I abusive sexual contact (intentional touching

of genitalia with hand) and on Count III aggravated

sexual 
-11-

abuse (contact between penis and vulva). Wright was

found not guilty of Count II aggravated sexual abuse

(penetration of genitalia with finger). Wright's motion

for a new trial was denied, and he was sentenced to 189

months. Wright appeals.

II.

Wright first argues that the evidence was not

sufficient to convict him. Wright's two pronged argument

can be summarized as follows: (1) because of the lack of

physical or other evidence, the government's case rests

on the testimony of A. Doe, who cannot be believed; and

(2) because the jury acquitted Wright on Count II

(penetration of genitalia with finger) it is logically

inconsistent to convict him on count I (touching

genitalia with hand). We disagree.

The Federal Constitution's Due Process Clause

protects "the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary

to constitute the crime with which he is charged." In re

Winship, 397 U.S. 358, 364 (1970). Our task in reviewing

a claim of insufficiency of the evidence is to determine

"whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt." Jackson v. Virginia, 443

U.S. 307, 319 (1979). We will draw all reasonable

inferences from the evidence in favor of the prosecution.

See United States v. Larson, 110 F.3d 620, 624 (8th Cir.

1997).
-12-

 Wright's first argument amounts to an assertion that

the jury erred in weighing credibility. Wright asserts

that the jury did not properly consider both A. Doe's

suggestibility after being repeatedly questioned in

unrecorded interviews and A. Doe's inconsistencies in

remembering such details as whether or not she had school

on the day of the abuse or what time of day the abuse

took place. However, despite Wright's assertion that

"'nobody is going to believe a little kid, anyway,'"

Trial Tr. at 72 (testimony of I. Doe); see also id. at

377, the jury was free to do just that.
-13-

This Court has repeatedly made clear that "[i]t is

the sole province of the jury to weigh the credibility of

a witness." United States v. Martinez, 958 F.2d 217, 218

(8th Cir. 1992); see also United States v. Robinson, 110

F.3d 1320, 1323-24 (8th Cir. 1997); United States v.

Smith, 104 F.3d 145, 148 (8th Cir. 1997); United States

v. Gordon, 974 F.2d 97, 100 (8th Cir. 1992); United

States v. Fortenberry, 973 F.2d 661, 664 (8th Cir. 1992);

United States v. Thompson, 972 F.2d 201, 203 (8th Cir.

1992); Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir.

1992). The jury heard testimony regarding the

suggestibility of children. See Trial Tr. at 338-42

(testimony of the defense's expert Dr. Steven Manlove);

id. at 288-90 (testimony of the government's expert

Margaret Pier). The jury also heard testimony regarding

A. Doe's inconsistencies in remembering such details as

whether or not she had school on the day of the abuse or

what time of day the abuse took place. See id. at 187

(testimony of A. Doe that the touching took place after

school when the rest of the kids were at school); id. at

96, 102 (testimony of Dr. Lopez that A. Doe told him that

Wright touched her Friday morning, a day when there was

no school); cf. id. at 191 (testimony of A. Doe that it

happened around the 4th of July with loud explosions and

fireworks going on around). Nevertheless, after hearing

all of the testimony, the jury was free to give whatever

weight they chose to A. Doe's testimony. See Martinez,

958 F.2d at 218. 

Moreover, had A. Doe been the government's sole

witness against Wright, it would have been perfectly

proper for the jury to credit A. Doe's testimony and

convict Wright. See id.; cf. People v. McGravey, 14 F.3d
-14-

1344, 1346-47 (9th Cir. 1994) (upholding jury instruction

that no corroboration of minor victim's testimony is

necessary if the victim is believed beyond a reasonable

doubt); Sullivan v. Minnesota, 818 F.2d 664, 666 (8th

Cir. 1987) (holding that victim's testimony, which

included detailed description of incident, demonstration

of act with anatomically correct dolls, and third

parties' testimony that victim exhibited masturbatory

behavior following alleged incident was sufficient

evidence to supported defendant's state conviction for

first-degree intra familial sexual abuse involving

four-year-old victim).
To bolster this argument, Wright points to A. Doe's in-court testimony in which 4

she states that Wright did not touch her with his fingers:

Q[the prosecutor] When he touched you, [A. Doe], down there, how

did he touch you? What did he touch you with?

A[A. Doe] I don't know.

Q Did he touch you down there with his fingers?

A. Unh-unh.

Q Okay. Did he touch you down there with his pee-pee?

A Yeah.

Trial Tr. at 186. Again A. Doe testified:

Q And he touched you with his pee-pee?

A Yeah.

Q Did he touch you with his fingers down around your middle?

A Unh-unh.

Id. at 189.

We note that the jury was free to credit any specific aspect of A. Doe's

description of the abuse while simultaneously discounting any other aspect. See United

-15-

Second, Wright argues that he could not have used his

hand to commit the act charged in Count I (intentional

touching of genitalia with hand) without also using his

fingers as charged in Count II (penetration of genitalia

with finger). We cannot agree. 4
States v. NB, 59 F.3d 771, 779 (8th Cir. 1995); cf. United States v. St. John, 851 F.2d

1096, 1099 (8th Cir. 1988) (upholding conviction where child at times denied and at

times acknowledged abuse).

-16-

Notwithstanding Wright's argument, a conviction on

Count I and an acquittal on Count II are not logically

inconsistent. Wright could have touched with his hand

without penetrating with his fingers. 

Following our review of the record, we hold that a

rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.

III.

Wright next argues that, considering children's

general suggestibility and the lack of a specific showing

of necessity or reluctance to testify, the district court

abused its discretion by allowing the government to ask

leading questions of A. Doe pursuant to Federal Rule of

Evidence 611(c). We disagree.

Based on the record, we see no reason to second-guess

the district court's evaluation of A. Doe's ability to

testify. See United States v. Rossbach, 701 F.2d 713,

718 (8th Cir. 1983) (approving use of leading questions

where fifteen- and seventeen- year-old victims were

hesitant to answer questions and had been threatened);

United States v. Nabors, 762 F.2d 642, 651 (8th Cir.

1985) ("The trial court's ruling deserves deference

because the court was in the best position to evaluate

the emotional condition of the child witness and his

hesitancy to testify."); United States v. McGovern, 499
-17-

F.2d 1140, 1142 (1st Cir. 1974) ("[L]eading questions

sometimes must be tolerated if what the witness knows is

ever to become available: the witness' memory may be

temporarily exhausted; the witness may be disoriented or

incapable of concentration; the witness may misunderstand

what the questioner wants to know.").

IV.
-18-

Wright argues that the district court permitted

improper bolstering of the child's allegations. This

allegedly took place when the government asked Dr. Lopez

what he had written on the emergency room form as his

diagnosis. Dr. Lopez responded to this question

regarding his diagnosis by stating, "Sexual molestation

exam." Wright asserts that, because Dr. Lopez found no

physical evidence of abuse, his diagnosis, or medical

conclusion, could only be based on A. Doe's story. Thus,

Wright concludes that applying the term "diagnosis" to A.

Doe's story improperly bolsters the truthfulness of her

account. We disagree.

First, Wright made no objection to the admission of

Dr. Lopez's testimony at trial. Therefore, its admission

is reviewed for plain error only. See United States v.

Roach, 28 F.3d 729, 732 (8th Cir. 1994). 

Second, Dr. Lopez did not express an improper opinion

as to whether A. Doe was telling the truth. Cf. United

States v. Azure, 801 F.2d 336, 339-341 (8th Cir. 1986)

(holding that it is an abuse of discretion to allow a

doctor to give his opinion on the believability of the

victim's story); United States v. Whitted, 11 F.3d 782,

785-86 (8th Cir. 1993) (holding that a doctor may not

pass judgment on the victim's truthfulness in guise of

medical opinion, because it is the jury's function to

decide credibility). Instead, Dr. Lopez merely testified

that he conducted a "Sexual molestation exam" and that in

his opinion the lack of medical evidence was not

inconsistent with molestation. Whitted, 11 F.3d at 785

("A doctor can also summarize the medical evidence and

express an opinion that the evidence is consistent or
-19-

inconsistent with the victim's allegations of sexual

abuse.").

V.

Wright has two objections with regard to the

testimony of the government's psychological expert,

Margaret Pier. First, after the district court ruled

that A. Doe's account of her abuse to Pier was

inadmissable hearsay, Wright argues that the district 
-20-

court erred by allowing a portion of A. Doe's account to

be admitted when the government questioned Pier about a

drawing of A. Doe's family. Second, Wright argues that

the district court erred in denying Wright's motion for

the limited admission of Pier's testimony, under Federal

Rule of Evidence 105, for the purpose of impeaching A.

Doe with prior inconsistent statements and showing A.

Doe's suggestibility. We disagree.

At trial, Wright made no objection to the admission

of the hearsay statement; therefore, we review its

admission for plain error only. See Roach, 28 F.3d at

732. Furthermore, Wright opened the door to the

admission of the statement. The statement, "'He moved

because he touched my bad part. I started telling mom

and she started fighting,'" was made by A. Doe and

written by Pier on the top of a drawing of A. Doe's

family. Trial Tr. at 312. Although admitted by the

government, Wright had previously made extensive use of

the drawing while cross-examining both A. Doe and Pier.

Id. at 202-03, 291, 294-95, 307-08. At the close of

Wright's cross-examination of Pier, the trial court asked

Wright, "You did quite a bit of reference to a drawing

that neither side has offered in evidence. Does either

side wish to offer that?" Id. at 308. The government

accepted the court's invitation and the drawing was

admitted, without objection, as Defendant's Exhibit A

during the government's redirect examination of Pier.

Id. at 311. Once admitted, Pier read the hearsay

statement from the exhibit. Id. at 312. With this in

mind, and considering the other evidence of Wright's

guilt, we hold that the hearsay admission was at most

harmless error. See United States v. DeAngelo, 13 F.3d
-21-

1228, 1233 (8th Cir. 1994) (holding that harmless error

when admission did not affect substantial rights of

defendant and had at most a slight influence on the

verdict).

Second, the district court properly denied Wright's

motion to examine Pier regarding A. Doe's prior

inconsistent statements because, when A. Doe testified

prior to Pier, Wright did not give A. Doe an opportunity

to explain or deny the inconsistent statements as

required by Federal Rules of Evidence 613(b). United

States v. Roulette, 
-22-

75 F.3d 418, 423 (8th Cir.) ("Extrinsic evidence of prior

inconsistent statements may not be used to impeach a

witness under Federal Rule of Evidence 613(b) unless the

witness is given the opportunity to explain or deny the

statements."), cert. denied, 117 S. Ct. 147 (1996).

Furthermore, the interests of justice do not necessitate

that we excuse Wright's compliance with this requirement.

See Fed. R. Evid. 613(b).

Lastly, by limiting Pier's testimony, the district

court did not improperly deny Wright the opportunity to

present expert testimony on children's memory and its

suggestibility. Instead, Wright was allowed to call his

own expert, Dr. Steven Manlove, for that purpose. Cf.

United States v. Rouse, 111 F.3d 561, 570-72 (8th Cir.

1997) (holding that the exclusion of additional expert

testimony regarding suggestibility was harmless error

because the jury had an informed basis for ultimate

credibility determinations, particularly the jurors had

heard lengthy testimony about expert's theory of

implanted memory, interviewing techniques, and social

influences on children at the time they made the

accusations); Bachman v. Leapley, 953 F.2d 440, 442 (8th

Cir. 1992) ("[G]eneral testimony about a victim's ability

to separate truth from fantasy, the expression of an

opinion on the similarities between a victim's claim and

the evidence, and the comparison of behavioral and

testimonial patterns of a particular victim with the

behavioral patterns observed in victims in general, [are]

all admissible in certain circumstances.").

VI.
-23-

Finally, Wright argues that, because a juror, Jerry

Chasing Hawk, failed to disclose that he was the nephew

of a tribal children's court judge, Wright was unable to

assess the impartiality of or challenge Chasing Hawk and

thus Wright's due process right to a fair trial was

violated. We disagree.
-24-

"[T]o obtain a new trial . . . a party must first

demonstrate that a juror failed to answer honestly a

material question on voir dire, and then further show

that a correct response would have provided a valid basis

for a challenge for cause." McDonough Power Equip., Inc.

v. Greenwood, 464 U.S. 548, 556 (1984). Wright has not

demonstrated that Chasing Hawk failed to answer honestly.

Wright cites to the jury questionnaire which asked jurors

if they were related to a "law enforcement officer."

Juror Questionnaire, reprinted in Appellant's Addendum at

B. In making his negative response, Chasing Hawk could

have honestly believe that a tribal children's court

judge was not a law enforcement officer. Because Chasing

Hawk "responded truthfully to the question asked, we find

no deliberate concealment on [his] part." See Bolin v.

Black, 875 F.2d 1343, 1350 (8th Cir. 1989) (junior with

son on probation did not respond to question asking if

family member was now incarcerated).

VII.

Accordingly, the judgment of the district court is

affirmed.

A true copy.

Attest:

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