* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 7 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. R.D.A., Jr., a juvenile male,

Defendant-Appellant. No. 97-5145 (D.C. No. 97-CR-51-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA and McKAY , Circuit Judges, and BROWN , ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Defendant was found guilty, after trial to the benc h, on three counts of a seven-count information: sexual abuse of another who is incapable of appraising the nature of the conduct, within Indian country, i n violation of 18 U.S.C. §§ 2242(2)(A), 1151, 1153, and 5032; and two counts of abusive sexual contact with children within Indian country, involving two different children, in violation of 18 U.S.C. §§ 2244(a)(1), 1151, 1153, and 5032. The district court entered a finding of juvenile delinquency and sentenced def endant to 18 months’ official detention for count one, and placed defendant on pr obation until his twenty-first birthday for counts two and three. Defendant appea ls his judgment and sentence, arguing that there was insufficient evidence to sup port the juvenile delinquency adjudication and that the district court’s refusal to allow testimony regarding a polygraph test violated his Sixth Amendment right s. We review the record de novo to determine whether there is sufficient evidence to support the convictions. See United States v. Voss , 82 F.3d 1521, 1524-25 (10th Cir.), cert. denied , 117 S. Ct. 226 (1996). We consider both direct and circumstantial evidence and the reasonable infe rences drawn therefrom, and we view the evidence in the light most favorable to the government to determine whether a reasonable jury could find defendant guil ty beyond a reasonable doubt.
See id. The evidence must be substantial and must raise m ore than a mere suspicion of guilt. See United States v. Yoakam , 116 F.3d 1346, 1349 (10th Cir.-3-

1997). “We do not use this evaluation as a chance to second-guess the [court’s] credibility determinations, nor do we reassess the [court’s] conclusions about the weight of the evidence presented.” Id. (quotation omitted). Guided by these standards, we affirm. Defendant was a juvenile at the time of the crimina l acts with which he was charged. He lived near Jimmy, Kimberly and Jus tin, siblings who were also juveniles at the time of the alleged acts. Jimmy and defendant were frequent playmates, and all four children spent considerable time together. Count one involved an act of anal sodomy with Jimmy. Defendant argues that the government failed to present sufficient evidence of Jimmy’s incapability to appraise the nature of the act, a necessary elementof the crime. Our review of Jimmy’s testimony at trial presents sufficient evid ence from which the court found that Jimmy was incapable of appraising the nature of the sexual act defendant committed upon him. Reading Jimmy’s test imony in comparison to the testimony of his two younger siblings, it is obviou s that Jimmy was functioning mentally at a younger age than his physical age. I t is readily apparent from Jimmy’s testimony that he did not understand the di fference between a “good touch” and a “bad touch,” and that he did not under stand that there might be anything objectionable about defendant’s contact. In addition, a clinical psychologist who had done testing on Jimmy testifie d that, even though Jimmy-4-

was capable of saying “no” in general, he did not understand that the sexual penetration by defendant was inappropriate. Count two requires the government to prove that def endant intended to abuse, humiliate, harass or degrade Kimberly. See 18 U.S.C. §§ 2244(a)(1), 2246(3). Kimberly testified that defendant pulled his pants down, grabbed her hand, and forced her to touch his penis. Defendantis six years older than Kimberly, and she was eight or nine years old at th e time. They were not friends or playmates. Kimberly testified that she pulled h er hand back and went home immediately. She also testified that defendant sho t her with a BB gun because she told on him when he pulled his pants down on a previous occasion and that she was afraid that he might hurt her again. The r ecord contains sufficient evidence to support the district court’s finding of juvenile delinquency on
count two. Count three also requires proof of defendant’s inte nt to abuse, humiliate, harass or degrade. The object of that incident was Kimberly’s twin brother, Justin. Justin testified that defendant grabbed hi s “private parts” from behind and that he told defendant to stop. In addition, Kimbe rly testified that she saw defendant pull Justin’s pants down, reach from behi nd Justin and through his legs, and grab Justin’s “private parts.” The record cont ains sufficient evidence to support the finding of juvenile delinquency on c ount three.-5-

Finally, defendant argues that the district court’s refusal to allow testimony regarding the results of his polygraph test violate d his Sixth Amendment rights. The district court did not invoke a per se rule dis allowing testimony regarding polygraph tests, although we note that the Supreme Court has recently held that such a per se rule does not necessarily significant ly impair presentation of a defense in violation of constitutional rights. See United States v. Scheffer , 118 S. Ct. 1261, 1266, 1268-69 (1998). In this cas e, the district court questioned the witness regarding his knowledge of the scientif ic aspects and opinions of polygraph results and determined that the witness w as not qualified to submit expert testimony on the subject. The witness was trained in administering polygraph tests, but he had no knowledge of the sci entific accuracy of the results. Federal Rule of Evidence 702 is the guideline by wh ich the district court must assess the admissibility of expert testimony. See Daubert v. Merrell Dow Pharm.,
Inc. , 509 U.S. 579, 589-95 (1993). Daubert requires a two-part determination: “whether the reasoning or methodology underlying th e testimony is scientifically valid and . . . whether that reasoning or methodolo gy properly can be applied to the facts in issue.” 509 U.S. at 592-93. There wa s no abuse of discretion in the district court’s finding that the witness was not qualified to provide expert testimony regarding the scientific accuracy of the results of the polygraph test.
See United States v. Davis , 40 F.3d 1069, 1075 (10th Cir. 1994). In addition ,-6-

it is significant that defendant testified on his o wn behalf. He was permitted to tell his story, and the district court’s refusal to allow the polygraph testimony did not impair that right in any manner. See Scheffer , 118 S. Ct. at 1269. The record in this case contains substantial eviden ce in support of the district court’s findings of juvenile delinquency o n counts one, two, and three. Further, defendant suffered no violation of his con stitutional rights by the district court’s refusal to allow testimony regarding the re sults of his polygraph test. The convictions and sentence are AFFIRMED.

Entered for the Court

Monroe J. McKay Circuit Judge