*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### OCT 20 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JEREMY JAMES ROSETTA, Defendant-Appellant. No. 97-2023 (D.C. No. CR-96-132-BB) (D. N.M.)

ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges

. Jeremy James Rosetta appeals his conviction and sentence for sexual abuse under 18 U.S.C. §§ 1153 and 2242(1). He contends the victim's out-of-court statements about the assault to her mother, a polic e officer, a community health worker, and a doctor were improperly admitted into evidence, and that a statement by the prosecutor in opening argument was an imperm issible comment on Rosetta's right to remain silent. He also challeng es the restitution imposed as part of his sentence, arguing the district court failed to make findings of fact resolving-2-

his objections to the findings in the presentence r eport as to the victim's monetary loss. We affirm the conviction, but vacate the res titution portion of the sentence and remand to the district court. I. Rosetta contends the district court erred in admitt ing into evidence during redirect examination the victim's testimony that sh e told her mother Rosetta had raped her. Relying on Tome v. United States , 513 U.S. 150 (1995), he argues the statement was inadmissible under Fed. R. Evid. 801( d)(1)(B), which provides that a witness' out-of-court statements are not hearsay if they are consistent with the witness' testimony and are offered to rebut a charg e of recent fabrication or improper influence or motive. In Tome , the Court held consistent statements are admissible under the rule only if they are made bef ore the charge of recent fabrication or improper influence. Id. at 156. Rosetta's defense was that he had consensual sex with the victim. He argues a motive arose to fabricate a rape accusation against him when the victim's husband pu nched her for being out all morning, and that the statement is inadmissible bec ause the victim made her statement to her mother after she was punched. Because the victim's statement to her mother was ma de after the alleged motive arose, it did not satisfy the Tome requirements. However, we conclude the statement was not hearsay for another reason--i t was adopted by the victim-3-

under oath on the witness stand. Although the district court did not rely on this ground, we may affirm for reasons other than those relied on by the district court. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). An evidentiary ruling can be affirmed on any proper gr ound. Sheets v. Salt Lake County , 45 F.3d 1383, 1390 (10th Cir.), cert. denied 116 S. Ct. 74 (1995). The advisory committee note to Fed. R. Evid. 801(d) (1) explains: "If the witness admits on the stand that he made the statem ent and that it was true, he adopts the statement and there is no hearsay proble m." Because the adopted statement is not hearsay, it is substantive evidenc e and need not be limited to impeachment or rehabilitation of the witness. Adop tion of prior statements by a witness will "make the statements a part of the wit ness' present testimony." Tripp v. United States , 295 F.2d 418, 425 (10th Cir. 1961). See also Amarin Plastics, Inc. v. Maryland Cup Corp. , 946 F.2d 147, 153 (1st Cir. 1991). Here, the vic tim testified under oath that she told her mother Rosetta had raped her, and that Rosetta did in fact rape her. She adopted the stat ement made to her mother as her present testimony. Consequently, the statement was not hearsay and was substantive evidence of the rape. Moreover, any error in admitting the statement was harmless. The statement to which Rosetta objects was a bare state ment that the victim told her mother Rosetta had raped her. By the time the vict im gave this testimony on-4-

redirect, she had already testified unequivocally a nd in detail on direct and crossexamination that Rosetta had raped her. By contras t, in Tome , admission of the hearsay statements was not harmless because they we re detailed and the victim's in-court testimony was weak. We conclude the victi m's statement could not have had a substantial effect on the jury's verdict and was therefore harmless. See United States v. Birch , 39 F.3d 1089, 1094 (10th Cir. 1994). II. Rosetta contends the district court erred in admitt ing an officer's testimony that the victim told him she had been raped. Altho ugh the victim made the statement approximately nine hours after the assaul t, the court admitted the testimony under the present sense impression except ion to the hearsay rule, Fed. R. Evid. 803(1), and as non-hearsay offered to prov e not that the rape occurred but to explain why the officer conducted an investi gation. The testimony was not properly admitted under 803(1 ) because a delay of minutes or hours between an event and a statement b ars resort to 803(1). See 4 Christopher B. Mueller and Laird C. Kirkpatrick, Fe deral Evidence § 434, pp. 385-87 (2d ed. 1994). However, the statement was n ot hearsay to the extent it was offered to explain the officer's actions in inv estigating the case rather than as substantive evidence of the rape. See United States v. Wilson , 107 F.3d 774, 780 (10th Cir. 1997); United States v. Freeman , 816 F.2d 558, 563 (10th Cir. 1987);-5-

Federal Evidence § 387, p. 87. In United States v. Cass , __ F.3d ____, 1997 WL 634174 (1997), we held hearsay statements offered t o explain the course of an investigation were inadmissible because the stateme nts were also used as substantive evidence of the crime and were so numer ous and pervasive that they presented a danger of prejudice. Here, by contrast , the officer's brief statement that the victim reported a rape was not offered as substantive evidence and did not present the same risk of prejudice as those in Cass

. Moreover, this court may affirm for reasons other than those relied on by the district court, see Sandoval , 29 F.3d at 542 n.6, and an evidentiary ruling can be affirmed on any proper ground, see Sheets , 45 F.3d at 1390. Even if offered as substantive evidence of the rape, the victim's stat ement to the officer fit within the excited utterance exception to the hearsay rule , Fed. R. Evid. 803(2). A statement made hours after a stressful event may fi t within the excited utterance exception if the declarant was still under stress c aused by the event. See United States v. Farley , 992 F.2d 1122, 1126 (10th Cir. 1993); Federal Evi dence § 425, p. 400. The doctor who treated the victim seven hours afterthe assault testified she was "acutely traumatized" and was in a "panic state ." The doctor stated it was not unusual for a rape victim to be unable to function or make decisions for a period of time. The officer testified that when he interv iewed the victim, she was in an-6-

emotional state, was crying, and would not look him in the face. Because there was evidence the victim was still under stress fromthe assault, her statement to the officer was properly admissible under 803(2). Even if admission of the statement was in error, any error in admitting the officer's brief testimony that the victim told her she was raped was harmless in lightof the victim's unequivocal and detailed testimony that Rosetta had raped her. III. Rosetta contends the district court erred in admitt ing into evidence the victim's statements to the community health represe ntative and to the doctor who treated her. Although the statements may not have been admissible as prior consistent statements of a witness under 801(d)(1)( B), they were admissible as statements for purposes of medical diagnosis or tre atment under Fed. R. Evid. 803(4). See Tome , 61 F.3d at 1449-50. The advisory committee note to 803(4) provides: "Under the exception the statement need n ot have been made to a physician. Statements to hospital attendants, ambu lance drivers, or even members of the family might be included." See id. at 1451. IV. Rosetta also contends the prosecutor improperly com mented on Rosetta's right to remain silent when she stated in opening a rgument:-7- As a matter of common sense, you, being the judges of the fact, think about who is actually going to be a wit ness in a rape case. It usually happens not in a public place, usually h appens only between two people, primarily behind closed doors. And so this case, as in most--all rape cases, it just has to be true that the most important witness the Government is going to bring to you is the complaining witness, the woman who reported this rape, the woman who is going to tell you she was raped by Jeremy Ro setta. Append. VI at 51. The test for determining whether a statement is an impermissible comment on defendant's right to remain silent is "'whether the language used was manifestly intended or was of such character that t he jury would naturally and necessarily take it to be a comment' on the defenda nt's right to remain silent." United States v. May , 52 F.3d 885, 890 (10th Cir. 1995) (quoting UnitedStates v. Mora , 845 F.2d 233, 235 (10th Cir. 1988)). The languag e here did not refer to Rosetta and was not a comment on his right to remai n silent. It was a comment on the fact that almost always the only persons pre sent at a rape are the victim and the assailant and that the victim will be the p rosecution's most important witness. The language was not manifestly intended as, or of such character that the jury could naturally and necessarily take it to be, a comment on Rosetta's right to remain silent.-8- V. Rosetta contends the district court erred in requir ing him to pay $4,700 in restitution because the court failed to make specif ic findings of fact resolving his objections to the findings in the presentence report as to the victim's monetary losses. Fed. R. Crim. P. 32(c)(1) provides that, at sentencing, the district court, "[f]or each matter controverted, . . . must make ei ther a finding on the allegation or a determination that no finding is necessary bec ause the controverted matter will not be taken into account in, or will not affe ct, sentencing." This court has repeatedly held that "a district court may not sati sfy its obligation by simply adopting the presentence report as its findings." United States v. Farnsworth , 92 F.3d 1001, 1011 (10th Cir.), cert. denied117 S. Ct. 596 (1996). Because the district court failed to make specific findings res olving Rosetta's objections to the findings in the presentence report, the restitution portion of the sentence must be set aside and the case remanded for further finding s on the restitution issue. VI. The judgment of conviction is AFFIRMED. The restitution portion of the sentence is VACATED and the case REMANDED for furth er findings on the restitution issue. Entered for the court Mary Beck Briscoe Circuit Judge