The Hon. Charles B. Kornmann, United States District Judge

*

for the District of South Dakota, sitting by designation.

 The Hon. Thomas M. Shanahan, United States District Judge for 1

the District of Nebraska.

 See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

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

___________

Before 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 sexual

abuse in violation of 18 U.S.C. § 2242(2)(A) and (B). The District Court1

sentenced Lovejoy to 121 months imprisonment. Lovejoy claims the District

Court erred in failing to find a violation of the Equal Protection Clause2

when the government exercised a peremptory challenge to exclude a black

person from the jury, in admitting as evidence statements made by the

victim's mother, and in failing to suppress incriminating statements

Lovejoy made to F.B.I. agents. We affirm.
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I. Background

Lovejoy was charged with attempting to engage in a sexual act with

his 13-year-old daughter. 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 with others in any meaningful

fashion. The victim's mother, Lovejoy's common-law wife, must communicate

with others for the victim. 

On the night of the incident the victim went to sleep, as she often

did, on the floor next to the bed of her mother and Lovejoy. Sometime

during the night, the victim's mother placed the victim in the bed in which

Lovejoy was 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 from

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 the

victim's clothing as evidence. The next morning Lovejoy left the home and

did not return.

The day after the incident, the mother reported what she had seen to

the Legal Aid office. She further reported what she had seen to the tribal

prosecutor, a tribal police officer, Child Protective Services, and to

medical personnel who examined the victim.

II. Discussion

A. Batson Claim

Lovejoy argues the District Court erred in denying his Batson claim

because the government exercised one of its peremptory challenges to strike

the only African American person on the jury panel, 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. Brooks, 2 F.3d 838, 840 (8th

Cir. 1993), cert. denied, --- U.S. ---, 114 S.Ct. 1117, 127 L.Ed.2d 427

(1994). The government claims Lovejoy did not establish a prima facie case

of discrimination as required
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for a successful Batson claim. See Id. (defendant who raises a Batson

claim is required to make a prima facie showing that the prosecutor

exercised a peremptory challenge on the basis of race). However, the prima

facie issue is moot if the government offers race neutral reasons for a

strike and the trial court rules on the ultimate question of intentional

discrimination. 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 race

neutral reasons in support of the strike. See United States v. Atkins, 25

F.3d 1401, 1405 (8th Cir.), cert. denied, --- U.S. ---, 115 S.Ct. 371, 130

L.Ed.2d 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 inherent in the stated reason."). To justify its strike, the

government pointed to the testimony of the prospective juror at issue, Ms.

Doris Ray. Ms. Ray stated during voir dire that she had a nephew who was

convicted of molesting a young child. Although she felt he received a fair

trial on the sexual molestation charge, she expressed some skepticism about

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 District Court found the proffered reasons were not pretextual.

This decision 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 stricken. See Davidson, 30

F.3d at 965. Therefore, in determining whether a proffered reason for

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 agree with the District Court that the reasons offered by the

government for striking Ms. Ray were race neutral 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

criminal defendants based upon her nephew's experiences. The District

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 Court

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 after the incident that she

was awakened by sounds coming from the bed in which Lovejoy and the victim

were sleeping, that she saw Lovejoy standing by the victim with an erection

and that the victim's underwear was down and her tee shirt was up. Lovejoy

contends the District Court abused its discretion in admitting the

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 evidence

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 Rule

803(4), the statement must satisfy two tests. First, the declarant's

motive in making the statement must be consistent with the purpose of

promoting treatment. United States v. Longie, 984 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 reasonably

relied upon by health care providers in treatment or diagnosis. Id.

Ms. Lovejoy made the statements while her daughter, who could not

communicate 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 examination 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 and

segregating her clothing for delivery to authorities. The District Court

did not abuse its discretion in deciding the mother's motive in making

these statements was consistent with promoting the treatment of her

daughter. The first test was met.

The statements at issue in this case are similar to the statements

admitted under Rule 803(4) in United States v. Iron 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, that

her clothes, jeans and underwear, were removed and that the man had tried

to force something into her vagina which hurt." Id. We held that it was

not an abuse of discretion to admit this testimony because it was

reasonably pertinent to diagnosis or treatment. Id. at 83-85.

In the case at hand, the mother informed the nurse examining her

daughter that she saw Lovejoy standing over the victim with an erection,

although she did not say she saw him penetrate the victim. She also

informed the nurse that the victim's underwear was down and her tee shirt

was up. This information would aid the medical professionals examining the

victim by "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 evidence to contradict the examining nurse's testimony that

it is important for the nurse to know the nature of the complaint since the

nature of the examination may hinge thereon. A nurse often assists a

physician in taking the history. The District Court did not abuse its

discretion in deciding it was
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reasonably pertinent to the victim's diagnosis and treatment to know the

details surrounding the incident for which the victim was being examined.

The second test was met. 

The District Court did not abuse its discretion in admitting the

mother's statements to the nurse examining the victim.

Even apart from Lovejoy's arguments as to Rule 803(4), the statements

were also clearly admissible under Rule 803(24). As discussed above, the

statements by the mother were trustworthy. The victim's mother's prior

statements testified to by Ms. Hogue were offered as evidence of Lovejoy's

conduct which is a material fact in this case. This testimony was more

probative on the conduct of Lovejoy than any other evidence because the

mother testified differently at trial, the victim 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 following his

arrest was given involuntarily because he was ill, needed medication and

he made the statement under coercive conditions only after being threatened

and then promised with release. We review for clear error the District

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 statement was voluntary. Lovejoy

did not miss any required doses of medication and did not state during the

interview that he was in pain. The agents conducting the interview were

dressed in civilian clothing with their weapons hidden, Lovejoy was

cooperative during the interview, no threats or promises were made during

the interview, the interview lasted approximately one hour and twenty

minutes and Lovejoy never asked that the questioning stop or that he be

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 clearly

erroneous.

We recently explained that, "[t]he appropriate test for determining

the voluntariness of a confession is whether the confession was extracted

by threats, violence, or direct or implied promises, such that the

defendant's will was overborne and his capacity for self-determination

critically impaired." United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.

1995) (citations omitted). Courts must evaluate the totality of the

circumstances in making this determination. Id. Given the factual

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 Court

properly denied Lovejoy's Batson claim, properly admitted the mother's

statements and properly admitted Lovejoy's statements to the F.B.I. The

decision of the District Court is affirmed. We express our thanks to

appointed counsel for diligent public service.

A true copy.

Attest:

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