### The Hon. Charles B. Kornmann, United States District Judg e * 

### for the District of South Dakota, sitting by designation. The Hon. Thomas M. Shanahan, United State s District Judge for 1 

### the District of Nebraska.

See B atson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 9 0 2 

### L.Ed.2d 69 (1986). ___________ No. 96-1294

___________ Henry Lovejoy, Sr., * * Appellant, * Appeal From the United States * District Court for the v. * District of Nebraska * United States of America, * * Appellee. *

___________ Submitted: June 12, 1996 Filed: August 7, 1996

___________ Bef ore RICHARD S. ARNOLD, Chief Judge, F. GIBSON, Senior Circuit Judge , and KORNMANN, District Judge. *

___________ KORNMANN, District Judge. Appellant, Henry Lovejoy, Sr., was convicted of attempted sexua l abuse in violation of 18 U.S.C. § 224 2(2)(A) and (B). The District Court 1 sentenced Lovejoy to 121 months imprisonment. L ovejoy claims the District Court erred in failing to find a viol ation of the Equal Protection Clause 2 whe n the government exercised a peremptory challenge to exclude a blac k person fro m the jury, in admitting as evidence statements made by th e vi ctim's mother, and in failing to suppress incriminating statement s Lovejoy made to F.B.I. agents. We affirm.

### -2- I. Background Lovejoy was charged with attempting to engage in a sexual act wit h his 13-year-old daugh ter. The victim is partially blind and cannot speak more than a few words . She cannot write, read braille, or communicate by sign language. She is unable to communicate wit h others in any meaningful fashion. The victim's mother, Lovejoy's common- law wife, must communicate with others for the victim. On the ni ght of the incident the victim went to sleep, as she often did, on the floor next to the bed of her mother and Lovejoy. Sometim e during the night, the victim's mother placed the victim in the bed in whic h Lovejoywas sleeping because it was hot on the floor and the mother then slept on the floor. The victim's mother was awakened by noises coming fro m the bed. She halted Lovejoy's assault on the victim by punching Lovejoy in the stomach. She removed the victim from the room and preserved th e victim's clothing as evidence. The next morning Lovejoy left the home and did not return. The day after the incident, the moth er reported what she had seen to the Legal Aid office. She further reported what she had seen to the triba l prosec utor, a tribal police officer, Child Protective Services, and t o medical personnel who examined the victim. II. Discussion A. Batson Claim Lovejoy a rgues the District Court erred in denying his Batson claim because the government exercised one of its peremptory challenges to strik e the only African American person on the jury pan el, in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We review

the District Court's decision on a Batson claim under the clearly erroneous standard. United States v. Br ooks , 2 F.3d 838, 840 (8th Cir. 1993 ), cert. denied, --- U.S. ---, 114 S.Ct. 1117, 127 L.Ed.2d 42 7 (1994). The government claims Lovejoy did not establish a prima facie cas e of discrimination as required

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for a successful Batson claim. See Id. (defendant who raises a Batso n claim is required to make a prima facie showing that the prosecuto r exercised a peremptory challenge on the basis of race). However, the prim a facie iss ue is moot if the government offers race neutral reasons for a strike and the trial court rules on the ultimate question of intentional discr imination. Davidson v. Harris , 30 F.3d 963, 965 (8th Cir. 1994) , cert. denied, --- U.S . ---, 115 S.Ct. 737, 130 L.Ed.2d 639 (1995) (citing Brooks , 2 F.3d at 840). In this case, the District Court found the government offered rac e neutral reasons in support of the strike. See U nited States v. Atkins , 25 F.3d 1401, 1405 (8th Cir.), cert. denied, --- U. S. ---, 115 S.Ct. 371, 130 L.Ed.2 d 322 (1994) (explaining that "[a] prosecutor's explanation for a strike is considered race neutral if the explanation is facially based on something other than the juror's race, i.e., if discriminatory intent is not inhe rent in the stated reason."). To justify its strike, th e government pointed to the testimony of the prosp ective juror at issue, Ms. Doris Ray. Ms. Ray s tated during voir dire that she had a nephew who was convicted of molesting a young child. Although she felt he received a fai r trial on the sexual molestation charge, she expressed some skepticism abou t the fairness of his trial in a subsequent prosecution that resulted in a life sentence; she thought additional evidence should have been admitted during his trial. The Distr ict Court found the proffered reasons were not pretextual. This deci sion is supported by the fact that the government struck a similarly situated white male, Donald Petermann. Like Ms. Ray, Mr

. Petermann had a relative who had been convicted and sentenced for sexual abuse. We recently explained that a race neutral reason can be shown to be pretextual if the characteristics of a stricken minority panel member are shared by a white panel member who was not s tricken. See Davidson , 30 F.3d at 965. Therefore, in determining whether a proffered reason fo r striking a minority prospective juror is pretextual, courts may

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consider whether a similarly situated white prospective juror was stricken

. Id. We agr ee with the District Court that the reasons offered by th e government for striking Ms. Ray were race neutra l and not pretextual. Ms. Ray may have had some reservations about rules of evidence which exclude certain evidence in criminal trials and she may have had some sympathy for crimin al defendants based upon her nephew's experiences. The Distric t Court's denial of Lovejoy's Batson claim was not clearly erroneous. B. Claimed Hearsay Statements Pursuant to Federal Rule of Evidence 803(4), the District Cour t admitted statements made by Christine Lovejoy (victim's mother) to a nurse

. Although Ms. Lovejoy testified at trial and recanted her allegations, she told the nurse examining the victim a few days a fter the incident that she was awakened by sounds coming from the bed in wh ich Lovejoy and the victim
were sleeping, that she saw Lovejoy standing by the victim with an erectio n and that the victim's underwear was down and her tee shirt was up. Lovejo y conten ds the District Court abused its discretion in admitting th e statements Ms. Lovejoy made to the nurse. Lovejoy claims the statements were not reasonably pertinent to diagnosis or treatment. We evaluate first the District Court's decision to admit evidenc e under Rule 803(4) under the abuse of discretion standard. United States

v. Yellow , 18 F.3d 1438, 1442 (8th Cir. 1994). To be admissible under Rul e 803(4), the statement must satisfy two tests. First, the declarant' s motive in making the statement must be consistent with the purpose o f promoting treatment. United States v. Longie , 9 84 F.2d 955, 959 (8th Cir. 1993 ) (citing United States v. Renville , 779 F.2d 430, 436 (8th Cir

. 1985)). Second, the content of the statement must be such as is reasonabl y relied upon by health care providers in treatment or diagnosis. Id. Ms. L ovejoy made the statements while her daughter, who could no t
commun icate orally or in writing on her own, was being examined by a medical professional in connection with allegations of sexual

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abuse. The examinati on was done a few days after the incident. That the mother was concerned about what she observed during the night in question is shown by her actions in removing her daughter from the bedroom an d segregating her cloth ing for delivery to authorities. The District Court did n ot abuse its discretion in deciding the mother's motive in makin g these statements was consistent with promoting the treatment of he r daughter. The first test was met. The sta tements at issue in this case are similar to the statement s admitted under Rule 803(4) in United States v. I ron Shell , 633 F.2d 77, 82 (8th Cir. 1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). In Iron Shell , the treating physician was allowed to repeat statements which the victim made to him during a physical examination. Id

. The physician repeated that the victim "had been drug into the bushes, tha t her clothes, jeans an d underwear, were removed and that the man had tried to force something in to her vagina which hurt." Id. We held that it was not an a buse of discretion to admit this testimony because it wa s reasonably pertinent to diagnosis or treatment. Id. at 83-85. In the case at hand, the mother informed the nurse examining he r daughter that she saw Lovejoy standing over the victim with an erection, although s he did not say she saw him penetrate the victim. She als o informed the nurse th at the victim's underwear was down and her tee shirt

was up. This information would aid the medical professionals examining th e victimby "pinpointing areas of the body to be examined more closely and by narrowing [the] examination by eliminating other areas." Id. at 84

. "Discovering what is not injured is equally as pertinent to treatment and diagnosis as finding what is injured." Id. Furthermore, Lovejoy did not introduce any evidenc e to contradict the examining nurse's testimony that it is important for the nurse to know the nature of the complaint since th e nat ure of the examination may hinge thereon. A nurse often assists a physician in taking the history. The District Court did not abuse it s discretion in deciding it was

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reasonablypertinent to the victim's diagnosis and treatment to know the details surrounding t he incident for which the victim was being examined. The second test was met. Th e District Court did not abuse its discretion in admitting th e mother's statements to the nurse examining the victim. Even apart from Lovejoy's arguments as to Rule 803(4), the stat ements were also clearly adm issible under Rule 803(24). As discussed above, the sta tements by the mother were trustworthy. The victim's mother's prio r statements testified to by Ms. Hogue were offere d as evidence of Lovejoy's conduct which is a material fact in this case. This testimony was mor e probative on the conduct of Lovejoy than any other evidence because th e mother testified differently at trial, the victi m could not testify and no other persons witnessed the attempted assault. Furthermore, the general purposes of the Rules of Evidence and the interests of justice will best be served by admission of the testimony into evidence. C. Admission of Defendant's Statement Lovejoy contends his written statement to F.B.I. agents followi ng his arrest was given involuntarily because he was ill, needed medication and he made the statement under coercive conditions only after being threatene d and then promised with release. We review for clear error the Distric t Court' s underlying factual determinations as to the voluntariness of a confession. United States v. Magness , 69 F.3d 872, 874 (8th Cir. 1995). Whether the confession was voluntary is a question of law and is subject to de novo consideration. Id. The District Court found Lovejoy's s tatement was voluntary. Lovejoy did not miss any required doses of medication an d did not state during the interview that he was in pain. The agents conducting the interview were dresse d in civilian clothing with their weapons hidden, Lovejoy wa s cooperative during th e interview, no threats or promises were made during the in terview, the interview lasted approximately one hour and twent y minutes a nd Lovejoy never asked that the questioning stop or that he b e allowed

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to consult with an attorney. Our review of the record demonstrates that these factual determinations by the District Court are not clearl y
erroneous. We recent ly explained that, "[t]he appropriate test for determining the voluntariness of a confession is whether the confession was extracted by threa ts, violence, or direct or implied promises, such that th e defe ndant's will was overborne and his capacity for self-determinatio n critically impaired." United States v. Kilgore , 58 F.3d 350, 353 (8th Cir

. 1995 ) (citations omitted). Courts must evaluate the totality of th e circumstances in making this determination. Id. Given the factua l findings made by the District Court, we conclude that Lovejoy's statement

was voluntary in that his "will was [not] overborne and his capacity for self-determination [was not] critically impaired." Id.

III. Conclusion For the reasons stated herein, we conclude the District Cour t prop erlydenied Lovejoy's Batson claim, properly admitted the mother' s statements and properly admitted Lovejoy's statements to the F.B.I. The dec ision of the District Court is affirmed. We express our thanks t o appointed counsel for diligent public service.
A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT