The Honor able Frank J. Magill was an active judge at the time this case wa s 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 sexua l contact and aggravated sexual abuse. Wright argues that: (1) the evidence was not sufficient to sustain hi sThe Hon orable Charles B. Kornmann, United States District Judge for th e 3 District of South Dakota. -2- conviction; (2) the district c ourt abused its discretion 3 in allowing leading questions-3-

during the government examination of the victim; (3) the emer gencyroom physician's testimony as to his sexua l ab use examination was improper bolstering; (4) th e dis trict court both improperly allowed a governmen t expert to testify as to hearsay and prohibited th e defense fr om examining the expert regarding the victim's prior inconsistent statements for the purpose o f impeaching the victim; and (5) he was denied a fair trial by a ju ror's misconduct in not disclosing the juror' s re lationship to a tribal children's court judge. W e affirm.

I.
This ca se involves the sexual abuse of a four-year

old g irl. The girl, A. Doe, lived with her mother, I
. Doe , and her seven siblings on the Rosebud India n Rese rvation in South Dakota. Wright is the biologica l fat her of I. Doe's youngest child and A. Doe's bab y bro ther. At the time of the abuse, I. Doe and Wright' s relationship had ended and Wright was not liv ing with the family. H owever, 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. Do e protested having to go home, and when Farmer asked A. Doe why she did not want to go home, A. Doe stated that he r babybrother's dad was mean, used bad words, thre w th ings, and touched her. Trial Tr. at 40. A. Do e pointed to her vagina when asked by Farmer where she was touched. Id.-4-

Following the initial disclosure, I. Doe, also a Hea d Star t worker, was summoned, and A. Doe again recounte d the touching to I. Doe. A. Doe told I. Doe that Wrigh t had "'touc hed 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 ol der 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 accu sations. Wright denied the accusations and stated , "'[o]h, I don't care, nobody is going to beli eve 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 Lope z in the Indian Health Services Hospital Emergenc y Room. A. Doe told Lopez that Wright "'went i nto the room where she was sleeping, removed the covers, removed he r pa nts, and touch[ed] her on her pee-pee. She als o refer[ed] that he also put his pee-pee into her pee-pee, and that she told him that it hurt.'" Id. at 10 2 (reading from emergency room record); see als o id. at 96- 97. Dr. Lopez's medical examination revealed no physical evidence of abuse.

On November 4, 1994, A. Doe again recounted the abus e to Joa nne Yankton, a State of South Dakota Chil d Protec tion worker. Yankton asked A. Doe if anyone ha d hurt her or did a bad touch to her. A. Doe pointed t o the v agina on a picture of a girl and said "'Willi e did.' " Id. at 218-19. At this interview, A. Doe als o st ated that three times Wright had stuck two finger s inside her. Id. at 219.

On September 21, 1995, a three-count indictment wa s filed agai nst Wright. Wright was charged with one count of a busive sexual contact and two counts of aggravate d sexual abuse. On October 2, 1995, Wright was arrested , and at his arraignment on October 12, 1995, Wright ple d not guilty to all three counts.-6-

Before trial, on February 24, 1995, and February 9 , 1996, Margaret Pier, a licensed professional counselo r and school psychologist, interviewed A. Doe. A. Doe was referred to Pier by the Federal Bureau of Investigatio n (FBI)
. During the first appointment, A. Doe and Pie r prepa red a picture of A. Doe's family. The picture wa s dra wn by Pier with A. Doe directing Pier. Upon the to p of the dra wing Pier wrote A. Doe's statement, "'He moved because he touched my bad part. I started telling mo m and she started fighting.'" Id. at 312.-7-

At tri al, the jury heard A. Doe testify that Wrigh t touched her: Q[the prosecutor] When you were home wit h Willi e when he was baby-sitting, did he d o 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 pictur e of a girl, and she's maybe a litt le bigger than you are , which has been marked as Exhibit 4. An d I'm going to ask you to pretend that this gir l is you. Can yo u take this magic marker and mark o n Exhibit 4 where Willie touched you?
A (Witness marking exhibit). Q Okay
. Make a black mark there where yo u 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. S EILER [the prosecutor]: Your Honor , we'd ask the record to reflect that the witness, on Exhibit 4, has made a black mark in th e vag inal area, and we would offer Government' s Exhibit 4.
Id. at 185-86.
The ju ry also heard A. Doe testify that Wrigh t touched his penis and her vulva: Q[the pro secutor] Okay. Did he touch yo u down there with his pee-pee? A[A. Doe] Yeah. Q I' mgoing to show you another drawing, [A
. Doe], which has been marked as Governmen t Exhibit 3. And I'm going to ask you to pretend that this is Willie.
Can you take this magic marker and put a circl e around the part that Willie touched yo u with?
A (Witness marking exhibit)
MR. S EILER [the prosecutor]: Your Honor , we' d ask the record to reflect that the chil d has c ircled the penis of the anatomicall y 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 verdic t on C ount I abusive sexual contact (intentional touchin g of ge nitalia with hand) and on Count III aggravate d sexual-11-

ab use (contact between penis and vulva). Wright wa s fo und not guilty of Count II aggravated sexual abus e (penetrati on of genitalia with finger). Wright's motion for a new trial was denied, and he was sentenced to 18 9 months. Wright appeals.

II. Wright first argues that the evidence was no t sufficient to convict him. Wright's two pron ged argument can be sum

marized as follows: (1) because of the lack of phys ical or other evidence, the government's case rest s on th e testimony of A. Doe, who cannot be believed; an d (2) because the jury acquitted Wright on Count I I (pen etration of genitalia with finger) it is logicall y inco nsistent to convict him on count I (touchin g genitalia with hand). We disagree.
The Federal Constitution's Due Process Claus e prot ects "the accused against conviction except upo n proof beyond a reasonable doubt of every fact necessar y to constitute the crime with which he is char ged." In re Winship , 397 U.S. 358, 364 (1970). Our task in reviewing a claim of insufficiency of the evidence is to determine "whe ther, after viewing the evidence in the light mos t favorable to the prosecution, anyrational trier of fact co uld have found the essential elements of the crim e beyond a reasonable doubt." Jackson v. Virginia , 44 3 U. S. 307, 319 (1979). We will draw all reasonabl e 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 tha t the jury erred in weighing credibility. Wright assert s that the jury did not properly consider both A. Doe' s suggestibility after being repeatedly questioned i n unrec orded interviews and A. Doe's inconsistencies i n remembering such details as whether or not sh e had school on the day of the abuse or what time of day the abus e took place. However, despite Wright's assertion tha t

"' nobodyis going to believe a little kid, anyway,' " Trial Tr. at 72 (testimony of I. Doe); see also id. a t 377, the jury was free to do just that.-13-

Th is Court has repeatedly made clear that "[i]t i s the sole province of the jury to weigh the cr edibility 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 State s v. Gordon , 974 F.2d 97, 100 (8th Cir. 1992); Unite d States v. Fortenberry , 973 F.2d 661, 664 (8thCir. 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 th e su ggestibility of children. See Trial Tr. at 338-4 2 (tes timonyof the defense's expert Dr. Steven Manlove) ; id. at 288-90 (testimony of the government's exper t Margaret P ier). The jury also heard testimony regarding A. D oe's inconsistencies in remembering such details a s whether or not she had school on the day of the abuse or what time of day the abuse took place. See id. at 18 7 (testim onyof A. Doe that the touching took place afte r school whe n the rest of the kids were at school); id. at 96, 102 (testimony of Dr. Lopez that A. Doe t old him that Wright touched her Friday morning, a day when there wa s no school); cf. id. at 191 (testimony of A. Doe that i t happened a round 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 sol e witn ess against Wright, it would have been perfectl y prop er for the jury to credit A. Doe's testimony an d convict Wright. See id. ; cf. People v. McGra vey , 14 F.3d-14-

1344, 1346-47 (9th Cir. 1994) (upholding jury instruction that no corroboration of minor victim's testimony i s necessary if the victim is believed beyond a reasonabl e doubt); Sullivan v. Minnesota , 818 F.2d 664, 666 (8t h Ci r. 1987) (holding that victim's testimony, whic h included d etailed description of incident, demonstration of a ct with anatomically correct dolls, and thir d parties' testimony that victim exhibited masturbator y behavior following alleged incident was sufficien t evidence to supported defendant's state conviction fo r first-degree intra familial sexual abuse involvin g 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 a spect. See United -15- Second, Wright argues that he could not have used hi s hand t o commit the act charged in Count I (intentiona l touching of genitalia with hand) without also using hi s fingers as charged in Count II (penetration of genitalia with finger). We cannot agree. 4States 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 o n Count I and an acquittal on Count II are not logicall y inco nsistent. Wright could have touched with his han d without penetrating with his fingers.
Follo wing our review of the record, we hold that a rationa l trier of fact could have found the essentia l elements of the crime beyond a reasonable doubt.

III. Wright next argues that, considering children' s general suggestibility and the lack of a spec ific showing of necessity or reluctance to testify, the di strict court abused its discretion by allowing the government to as k leading questions of A. Doe pursuant to Federal Rule o f Evidence 611(c). We disagree.
Based on the record, we see no reason to second-gues s the district court's evaluation of A. Doe's ability t o testif y. See United States v. Rossbach , 701 F.2d 713 , 718 (8th Cir. 1983) (approving use of leading question s whe re fifteen- and seventeen- year-old victims wer e hesi tant to answer questions and had been threatened) ; Unit ed States v. Nabors , 762 F.2d 642, 651 (8th Cir
. 198 5) ("The trial court's ruling deserves deferenc e becaus e the court was in the best position to evaluat e th e emotional condition of the child witness and hi s hesi tancyto testify."); United States v. McGovern , 49 9-17-

F.2d 1140, 1142 (1st Cir. 1974) ("[L]eading question s sometimes must be tolerated if what the witness knows is ever to become available: the witness' memory may b e temporaril y exhausted; the witness may be disoriented or incapable of concentration; the witness may m isunderstand what the questioner wants to know.").

IV.-18-

Wrigh t argues that the district court permitte d impr oper bolstering of the child's allegations. Thi s allegedly took place when the government asked Dr. Lopez what he had written on the emergency room form as hi s diag nosis. Dr. Lopez responded to this questio n regarding his diagnosis by stating, "Sexual molestatio n exam." Wright asserts that, because Dr. Lopez found n o phys ical evidence of abuse, his diagnosis, or medica l conclusion, could only be based on A. Doe's s tory. Thus, Wright concludes that applying the term "diag nosis" to A. Doe' s story improperly bolsters the truthfulness of he r account. We disagree. First, Wright made no objection to the admission o f Dr. Lopez's testimony at trial. Therefore, i ts admission is re viewed 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 opinio n as to whether A. Doe was telling the truth. Cf. Unite d States v. Azure , 801 F.2d 336, 339-341 (8th Cir. 1986 ) (hold ing that it is an abuse of discretion to allow a doctor to give his opinion on the believability of th e victim's s tory); United States v. Whitted , 11 F.3d 782, 785-8 6 (8th Cir. 1993) (holding that a doctor may no t pass judgment on the victim's truthfulness in guise o f medical opinion, because it is the jury's function t o decide credibility). Instead, Dr. Lopez mere ly testified that he conducted a "Sexual molestation exam" and that in his op inion the lack of medical evidence was no t inconsistent with molestation. Whitted , 11 F.3d at 78 5 ("A doctor can also summarize the medical evidence an d express an opinion that the evidence is consistent o r-19-

inco nsistent with the victim's allegations of sexua l abuse.").

V. Wright has two objections with regard to th e testimonyof the government's psychological expert , Margare t Pier. First, after the district court rule d that A. Doe's account of her abuse to Pier wa s inadmissable hearsay, Wright argues that the district-20-

court erre d 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 tha t the district court erred in denying Wright's motion fo r the limite d admission of Pier's testimony, under Federal Rule o f Evidence 105, for the purpose of impeaching A
. Doe with prior inconsistent statements and showing A
. Doe's suggestibility. We disagree.

At tria l, Wright made no objection to the admissio n of t he hearsay statement; therefore, we review it s admission for plain error only. See Roach , 28 F.3d a t 732. Furthermore, Wright opened the door to th e admi ssion of the statement. The statement, "'He move d because he touched my bad part. I started telling mo m and s he started fighting,'" was made by A. Doe an d written by Pier on the top of a drawing of A. Doe' s family. Trial Tr. at 312. Although admitted by th e gove rnment, Wright had previously made extensive use o f the drawing while cross-examining both A. Doe and Pier
. Id. at 202-03, 291, 294-95, 307-08. At the close o f Wright's cross-examination of Pier, the trial court asked Wright, "You did quite a bit of reference to a drawin g that ne ither side has offered in evidence. Does eithe r side wish to offer that?" Id. at 308. The governmen t acce pted the court's invitation and the drawing wa s admit ted, without objection, as Defendant's Exhibit A durin g the government's redirect examination of Pier
. Id. at 311. Once admitted, Pier read the hearsa y state ment from the exhibit. Id. at 312. With this i n mind , and considering the other evidence of Wright' s guilt , we hold that the hearsay admission was at mos t harmles s error. See United States v. DeAngelo , 13 F.3 d-21-

1228, 1233 (8th Cir. 1994) (holding that harmless erro r when admission did not affect substantial rights o f def endant and had at most a slight influence on th e verdict).

Sec ond, the district court properly denied Wright' s moti on to examine Pier regarding A. Doe's prio r inconsistent statements because, when A. Doe testifie d prior to P ier, Wright did not give A. Doe an opportunity to e xplain or deny the inconsistent statements a s require d by Federal Rules of Evidence 613(b). Unite d States v. Roulette ,-22-

75 F.3d 418, 423 (8th Cir.) ("Extrinsic evide nce of prior in consistent statements may not be used to impeach a witness un der Federal Rule of Evidence 613(b) unless the witness is given the opportunity to explain or deny th e stat ements."), cert. denied , 117 S. Ct. 147 (1996)
. Furthermor e, the interests of justice do not necessitate that we excuse Wright's compliance with this requirement. See Fed. R. Evid. 613(b).

La stly, by limiting Pier's testimony, the distric t court did not improperly deny Wright the opportunity t o pres ent expert testimony on children's memory and it s suggestibi lity. Instead, Wright was allowed to call his own ex pert, 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 exper t testimonyregarding suggestibility was harmless erro r becau se the jury had an informed basis for ultimat e credibilitydeterminations, particularly the jurors ha d heard lengthy testimony about expert's theory o f implanted memory, interviewing techniques, and socia l influe nces on children at the time they made th e accusation s); Bachman v. Leapley , 953 F.2d 440, 442 (8th Cir. 1992) ("[G]eneral testimony about a vict im's ability to separate truth from fantasy, the expression of a n opinion on the similarities between a victim's claim and the evidence, and the comparison of behavioral an d test imonial patterns of a particular victim with th e behavioral patterns observed in victims in ge neral, [are] all admissible in certain circumstances.").

VI.-23-

Finally, Wright argues that, because a juror, Jerr y Chasing Hawk, failed to disclose that he was the nephe w of a triba l children's court judge, Wright was unable to assess the impartiality of or challenge Chasing Hawk and thu s Wright's due process right to a fair trial wa s violated. We disagree.-24-

"[T]o ob tain a new trial . . . a party must firs t de monstrate that a juror failed to answer honestly a materia l question on voir dire , and then further sho w that a correct response would have provided a valid basis for a challenge for cause." McDonough Power Equip., Inc. v. Gr eenwood , 464 U.S. 548, 556 (1984). Wright has no t demonstrated that Chasing Hawk failed to answ er 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 coul d have honestly believe that a tribal children's cour t judge was not a law enforcement officer. Bec ause Chasing Hawk "responded truthfully to the question as ked, we find no deli berate concealment on [his] part." See Bolin v
. Black , 875 F.2d 1343, 1350 (8th Cir. 1989) (junior wit h son on probation did not respond to question asking i f family member was now incarcerated).

VII. Accordingly, the judgment of the district court i s affirmed.
A true copy.

Attest:

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