## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1892

___________ Jerry Lee Olesen, * * Appellant, * * Appeal from the United States
v. * District Court for the * District of South Dakota. Joe Class, Warden, * South Dakota State Penitentiary, * * Appellee.

___________

Submitted: October 23, 1998 Filed: January 4, 1999

___________ Before RICHARD S. ARNOLD, WOLLMAN, and MORRIS SHEPPARD ARN OLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Jerry Lee Olesen was convicted in a South Dakota court on two counts o f unlawful sexual contact

with a child under sixteen, two counts of second-degree rape, and one count of third-degree rape, based on alleged sexual contact with his daughters, three-year-old A.T., five-year-old L.Z., and nineteen-year-old L.S. After hi s convictions were affirmed, see State v. Olesen , 443 N.W.2d 8 (S.D. 1989), and hi s state habeas corpus petition was denied, see Olesen v. Lee , 524 N.W.2d 616 (S.D

. 1994), Mr. Olesen filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254.-2-

The district court denied the petition , see Olesen v. Class , 962 F. Supp. 1556 (D. S.D. 1997), and Mr. Olesen appeals. We affirm in part and reverse in part.

I. L.Z. d id not testify at Mr. Olesen's trial. Dr. Willis Sutliff, a pediatrician , testified, however, that during his examination of L.Z., she identified Mr. Olesen as the individual who had sexually abused her. Mr. Olesen maintains that the admission of L.Z.'s out-of-court statement ide ntifying him as the perpetrator violated his right under the Sixth A mendment to confront the witnesses against him. See U.S. Const

. amend. VI.
A hearsay statement is admissible in a criminal trial, despite the admonitions of the Confrontation Clause, "if it bears adequate 'indicia of reliability.' " Ohio v. Roberts , 448 U.S. 56, 66 (1980), quoting Dutton v. Evans , 400 U.S. 74, 89 (1970) (pluralit y opinion). The reliability requirement is satisfied if the relevant statement falls within a "firmly rooted hearsay exception" or if it is supporte d by "a showing of particularized guarantees of trustworthiness." Roberts , 448 U.S. at 66.

South Dakota maintains that L.Z.'s statement identifying Mr. Olesen falls within the firmly rooted hearsay exception for statements made for purposes of medica l diag nosis or treatment. See S.D. Codified Laws § 19-16-8, the equivalent o f Fed. R. Evid. 803(4) in all pertinent respects. See White v . Illinois , 502 U.S. 346, 355- 56, 355-56 n.8 (1992) (medical di agnosis/treatment exception is firmly rooted hearsay exception). For this propos ition, South Dakota relies on our decision in United States

v. Renville , 779 F.2d 430, 436 (8 Cir. 1985), in which we held that statements by a th child a buse victim to a physician that the abuser was a member of the victim' s immediate family may properly be admitted under this hearsay exception. See als o State v. Olesen , 443 N.W.2d at 9, and State v. Garza , 337 N.W.2d 823, 824-25 (S.D. 1983) ( per curiam ), both relying on Eighth Circuit case law in holding identifications by child abuse victims admissible under S.D. Codified Laws § 19-16-8.-3-

We recognized in Renville and in la ter decisions, however, that such statements

are ad missible only when the prosecution is able to demonstrate that the victim' s mot ive in making the statement was consistent with the purpose of promotin g treatment -- that is, "where the physician makes clear to the victim that the inquiry into the identi ty of the abuser is important to diagnosis and treatment, and the victi m manifests such an understanding." Renville , 779 F.2d at 438. Such a rule is consistent with the rationale underlying the hearsay exception for medical treatment an d diagnosis, because the e xception "is based on the belief that a person seeking medical treat ment is unlikely to lie to a doctor she wants to treat her, since it is in her bes t interest to tell the truth." Ring v. Erickson , 9 83 F.2d 818, 820 (8 Cir. 1993). In other th words, the rule is bottomed upon the premise that a patient's "selfish motive," id. , i n receiving proper treatment guarantees the trustworthiness of t he statements made to her physician. Id. ; see also United States v. White , 11 F.3d 1446, 1449-50 (8 Cir. 1993). th

We believe that

the prosecution in this case failed to establish that L.Z.'s frame of mind at the time of Dr. Sutliff's examination was that of a patient seeking medical trea tment. Dr. Sutliff testified only that he explained to L.Z. "what was going t o happen," presumably an explanation of the physical examination itself. There is n o evidence in the record that he explained to L.Z. that his que stions regarding the identity of her abuser were important to diagnosis or treatment, or that L.Z., who was only five year s old at the time, understood the medical significance of being truthful i n identifying her abuser to her doc tor. Because the prosecution failed to establish L.Z.'s strong motive to tell the truth to Dr. Sutliff in order to promote treatment, under ou r case law L.Z.'s statement to Dr. Sutliff was not properly admitted.

II. SouthDakota also maintains that L.Z.'s statement to Dr. Sutliff identifyin g Mr. O lesen as her abuser possessed sufficient "particularized guarantees o f trustworthiness," Roberts , 448 U.S. at 66, to surv ive a Confrontation Clause objection. In determining whether L.Z.'s statement was properly admitted on this ground, we-4-

examine its trustworthiness in light of the totality of the circumstances that surrounded it s making, without regard to other evidence in the record that might corroborate th e statement. See Idaho v. Wright , 497 U.S. 805, 822-23 (1990).

South Dako ta directs our attention to certain facts that it believes tend t o establish the trustworthiness of L.Z.'s state ment. First, it points out that Dr. Sutliff had expertis e in the diagnosis of child abuse and that he did not use leading questions i n eliciti ng L.Z.'s statement. Second, it points to Dr. Sutliff's testimony that L.Z. had a better knowledge of human anatomy than the average five-year- old and that she did not
waver in her statement identifying Mr. Olesen as her abuser. Third, it contends tha t L.Z.'s young age suggests that she lacked any reason to accuse Mr. Olesen falsely and therefore provide s further evidence of the trustworthiness of her statement identifying him as her abuser.

In supp ort of its position, South Dakota cites several cases in which we hav e reli ed on similar facts in holding that hearsay statements by child victims identifyin g their ab users possessed sufficient guarantees of trustworthiness to overcome a Confrontation Clause objection to their admission. See United States v. N.B. , 59 F.3d 771, 775 (8 Cir. 1995); United States v. Grooms , 978 F.2d 425, 428 (8 Cir. 1992);

th th Dana v. Dep't of Corrections , 958 F.2d 237, 239 (8 Cir. 1992), ce rt. denied , 505 U.S. th 1225 (1992); and McCafferty v. Leapley , 944 F.2d 445, 451-52 (8 Cir. 1991), cert. th denied , 503 U.S. 911 (1992). We believe, however, that the hearsay statements i n those cases were significantly more trustworthy an d raised fewer Confrontation Clause concerns than L.Z.'s statement identifying Mr. Olesen.

Fir st, the child victims in N.B. and Grooms testified at trial, so the defendant s in those cases had the opportunity to confront and cross-examine their accusers. See N.B. , 59 F .3d at 775, and Grooms , 978 F.2d at 427-28. We have recognized that the Confro ntation Clause is generally satisfied when the child victims whose hearsa y statements have been admitted actually appear in court and testify in person. See , e.g. ,-5-

United States v. Spotted War Bonnet , 933 F.2d 1471, 1473 (8 Cir. 1991), cert. denied , th 502 U.S. 1101 (1992). In Mr. Olesen's case, however, L.Z. did not testify at trial, and the Confrontation Claus e of course presents far greater obstacles to admitting hearsay statements in such circumstances. See id.

South Dakota's reliance on Dana and McCafferty is lik ewise misplaced. In both of those cases, we found the children's statements trustworthy in part because th e childr en provided graphic, detailed descriptions of the alleged abuse, thereby lending credibility to their statements identifying their abusers. See Dan a , 958 F.2d at 239, and McCafferty , 944 F.2d at 450-52. By contrast, Dr. Sutliff's testimony at trial indicates that L.Z. said

very little during the interview and communicated primarily by nodding her head in response to Dr. Sutliff's questions:

I asked [L.Z.] if she had ever been hurt around her bottom, and sh e replied tha t her daddy had hurt her. I then asked her where and sh e pointed to the vaginal area. I then asked if s omeone had, if her father had put his fingers in her and she nodded affirmatively. I then asked if it hurt andshe again indicated affirmatively that it had hurt. ... I asked her i f she had, if he had placed [his penis] in her and she indicated affirmatively again. ... She did not el aborate in detail, it was just, she did say that she had bee n hurt and when asked about the area, indicated ... her vagina l area and nodded as I asked the questions.

We believe that this account of Dr. Sutliff's conv ersation with L.Z. falls far short of the "particularized g uarantees of trustworthiness," Roberts , 448 U.S. at 66, demonstrated in our earlier cases.

South Dakota calls our attention to a number of other cases discussing th e admissibility of hearsay statements by child victims identifying their abusers. Thos e
cases a re inapposite, however, either because the defendants in those cases did no t raise a claim based on the Confrontation Clause, see, e.g. , Lovejoy v. United States ,-6-

92 F.3d 628, 6 31-32 (8 Cir. 1996), and Renville , 779 F.2d at 435-41, or because we th held that the hearsay statements at issue fell within a firmly rooted hearsay exception and thus did not violate the Confrontation Clause, see, e.g. , United States v. Balfany , 965 F.2d 575, 580 (8 Cir. 1992). In addition, several of the earlier cases that South th Dakota r elies on are of dubious value after the Supreme Court's decision in Wright , 497 U. S. at 822-23, because they "did not subject the statements in question to th e rigorous and carefully structured Confrontation Clause analysis that is now require d under Wright ." Spotted War Bonnet , 933 F.2d at 1473; see also United States v

. Dor ian , 803 F.2d 1439, 1444-45, 1447 (8 Cir. 1986) (relying on corroboratin g th evidence now impermissible under Wright ).
In short, after carefully reviewing the record in this case, we believe that L.Z.'s statement to Dr. Sutliff lacked sufficient guarant ees of trustworthiness to be admissible

un der Wright. The evidence produced by South Dakota demonstrates, at most, tha t L.Z. was a v ictim of sexual abuse; it does not ensure that her statement identifyin g Mr. Olese n as the abuser was itself sufficiently trustworthy to be admitted in the face of a Confrontation Clause objecti on. The admission of this statement at trial therefore violated Mr. Olesen's constitutional rights.

III. While we have concluded that Mr. Olesen's rights under the Confrontatio n Clause were violated, he is not entitled to relief if the error in admitting the offending statement was harmless. See Delaware v. Van Arsdall , 475 U.S. 673, 681-84 (1986). Inmost habeas corpus cases, we review the record to decide "whether the error 'had substantial and i njurious effect or influence in determining the jury's verdict.' " Brecht

v. Abraham son , 507 U.S. 619, 637 (1993), quoting Kotteakos v. United States , 32 8 U.S. 750, 776 (1946). In this case, however, because the state courts did not review the admis sion of L.Z.'s statement for harmless error, we review the constitutiona l vio lationunder the standard set forth in Chapman v. California , 386 U.S. 18, 2 4 (1967). See Orndorff v. Lockhart , 998 F.2d 1426, 1430 (8 Cir. 1993), cert. denied , th-7-

511 U.S. 1060, 1063 (1994). Under Chapman , 386 U.S. at 24, the error in admitting L.Z.'s statement identifying Mr. Olesen was harmless only if it is clear beyond a reasonable doubt that its admission did not contribute to the jury's guilty verdict. " 'The question is whether there is a reasonable possibility that the evidence complained o f might have contributed to the conviction.' " Id. at 2 3, quoting Fahy v. Connecticut , 375 U.S. 85, 86-87 (1963). If so, the error in admitting the evidence was not harmless.
The jury, as we have said, convicted Mr. Olesen of five separate offenses: one

cou nt of unlawful sexual contact with L.Z., one count of unlawful sexual contact with A.T., two counts of second-degree rape of L.S., and one count of third-degree rape of L.S. I n determining whether the admission of L.Z.'s statement identifying Mr. Olesen
was harmles s error, we consider separately the impact of that statement on the jury' s verdict for each of these offenses.

After carefully reviewing the record in this case, we cannot say that th e admi ssion of L.Z.'s statement was harmless beyond a reasonable doubt with regard to Mr. Olesen's convictio n for unlawful sexual contact with her. We believe, in fact, that it is clear that L.Z.’s statement was important evidence in th e prosecution’s case against Mr. Olesen and that the statement very lik ely contributed to his conviction for unlawful sexual contact with her.
The only other testimony at trial identifyin g Mr. Olesen as L.Z.'s abuser was that of L .S., who testified that Mr. Olesen had sexually abused her on three occasions and th at she had witnessed him sexually abusing her younger sisters on one occasion. On cross-examination, however, L.S. admitted that her testimony at trial differed from the account of sexual abuse that she had offered in her grand jury testimony, and she stated that her grand jury testimony was only “half-way truth.” L.S.’s testimony during th e trial, moreover, was internally inconsistent: She initially testified that on May 20, 1985, she had accompanied her father to a bar in a nearby town and that he had raped her on the way home that evening. After several defense witnesses testified that L.S. had-8-

attended a fourth sister’s junior high school graduation with other family members that evening, however, L.S. took the stand again and testified that the rape had in fac t occurred the next day.

In addition to pointing out the inconsistencies in L.S.’s testimony, moreover , Mr. Olesen's trial counsel attacked L.S.’s credibility by introducing evidence of he r drug and alcohol abuse, numerous suicide attempts, and several hospital stays fo r psychiatri c care. Numerous witnesses, including Mr. Olesen’s wife and three of hi s other children, denied that any sexual abuse had occurre d and attacked L.S.'s credibility and reputation for veracity.

In short, we believe that it is clear from the record that the credibility of L.S. , who presented the only evidence of Mr. Olesen's abuse of L.Z. other than that i n Dr. Sutl iff's testimony, was in question throughout this trial. L.Z.'s statemen t identifying Mr. Olesen as her abuser was therefore powerful evidence against him. The state, mor eover, evidently understood the weight that the jurors would likely give t o L.Z. 's statement, because the prosecutor relied heavily on that statement in closin g argument.

South Dako ta maintains that the jury could have convicted Mr. Olesen o f unl awful sexual contact with L.Z. on the strength of L.S.'s testimony alone, absen t L.Z.'s co rroborating statement identifying Mr. Olesen as her abuser. We agree tha t L.S.'s te stimony alone would have been sufficient, as a matter of law, to obtai n Mr. Olesen 's conviction for unlawful sexual contact with L.Z. When we revie w constitutional violations for harmless error, however, the test is not “whether there was sufficientevidence on which the petitioner could have been convicted without th e evidence complain ed of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy , 375 U.S. at 86-87.-9-

We th ink, for the reasons already indicated, that L.Z.’s statement identifyin g Mr

. Olesen as her abuser was important evidence that significantly strengthened th e prosecution’s case against him, and thus we cannot conclude beyond a reasonable doubt that the jury did not rely upon L.Z.'s s tatement in returning a guilty verdict on the count withrespect to L.Z. The error in admitting the statement was therefore not harmless, and Mr . Olesen is entitled to a writ of habeas corpus on his conviction for unlawfu l sexual contact with L.Z.

We are of t he view, however, that the erroneous admission of L.Z.'s hearsa y statement had no appreciable effect on the jury's guilty verdicts on the four othe r counts. In her conversation with Dr. Sutliff, L.Z. stated only that Mr. Olesen ha d

sexua llyabused her; she made no mention of the alleged sexual abuse of her sisters

. L.Z.'s h earsay statement identifying Mr. Olesen as her abuser was therefore irrelevant to the charges against Mr. Olesen for the sexual abuse of A.T. and L.S.

It i s, of course, the duty and responsibility of the jury to keep separate th e evidence regarding the offenses with which a defendant is charged. In fact, the tria l court in Mr. O lesen's case instructed the jury on this duty, and "juries are presumed to foll ow their instructions." Richardson v. Marsh , 481 U.S. 200, 211 (1987). W e therefor e must assume that the jury did not consider L.Z.'s statement identifyin g Mr . Olesen when it returned guilty verdicts on the counts of sexual abuse of A.T. and L.S. and that it conv icted Mr. Olesen on those counts based solely on the testimony of L.S., as it was of course permitted to do. We conc lude, accordingly, that the admission of L.Z.'s hearsay statement did not contribute to the jury's verdicts on the four counts with respect t o A.T. and L.S., and its admission was thus harmless error as to thos e counts.

IV. Mr. Olesen raises several claims of ineffective assistance of counsel. First, h e maintains that he was prejudiced by his trial counsel's failure to object to the opinion-10-

testimo ny of the prosecution's rebuttal witness, Angini Tapscott, a psychologist wh o had counseled L.S. M s. Tapscott was allowed, without objection, to offer her opinion that L.S. would not fabricate a story involving sexual abuse. Mr. Olesen contends that his trial counsel should have objected to this testimony because it impermissibl y infringed upon the jury' s exclusive function of determining L.S.'s credibility. See State

v. Thomas , 381 N.W.2d 232, 239 (S.D. 1986); see also United States v. Azure , 80 1 F.2d 336, 339-41 (8 Cir. 1986). th
We agree with Mr. Olesen that given the state of South Dakota's evid entiary rules and case law at the time of his trial, a reasonably prudent lawyer would have objected to Ms. Tapscott's opinion testimony. We do not believe, however, that that deficien t performance by Mr. Olesen 's trial counsel rendered "the result of the trial unreliable or the proceed ing fundamentally unfair," as is required before we can set aside a conviction on ineffective assistance of counsel grounds. Lockhart v. Fretwell , 506 U.S. 364, 372 (1993).

Ms. Tapsco tt's opinion as to L.S.'s credibility was offered on rebuttal after th e de fense had introduced a parade of witnesses who attacked L.S.'s credibility

. Ms. Tapscott's testimony was quite brief, and Mr. Olesen's trial counsel effectivel y cross-examined her. Ms. Ta pscott's testimony concerning L.S.'s credibility, moreover,
was not mentioned by either the prosecution or the defense in closing arguments, and the trial court inst

ructed the jury that it was the sole judge of the witnesses' credibility. We co nclude that the failure of Mr. Olesen's trial counsel to object to Ms. Tapscott' s opini on testimony did not render the trial and verdict unfair or unreliable, an d Mr. Olesen therefore is not entitled to relief on this ground.

Mr. Ol esen raises two additional claims of ineffective assistance of counsel

. Fir st, he contends that his trial counsel was constitutionally ineffective because h e failed to contact potential defens e witnesses and adequately to prepare those witnesses who were called to testify on Mr. Olesen's behalf. Second, he maintains that his trial-11-

counsel did not adequately cross-examine L.S. about the inconsistencies between her testim ony before the grand jury and her testimony at trial. After carefully reviewin g the re cord, we believe that trial counsel's deficient performance, if any, did not render "the result of the trial unreliable or the proceeding fundamentally unfair," id

. Mr. Olesen therefore is not entitled to habeas relief on these ineffective assistance o f counsel claims.

V. For the foregoing reasons, we rever se the district court's denial of habeas corpus relief and remand with instructions to grant Mr. Olesen's petition for a writ of habeas corpus on h is conviction with respect to unlawful sexual contact with L.Z., and w e affirm the district court's denia l of habeas corpus relief as to the remaining counts. We remand the case to the district court for the entry of a proper judgment.
A true copy.

Attest:

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