1

The Honorable Karen E. Schreier, Chief Judge, United States District Court

for the District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1552 

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United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court for the

v. * District of South Dakota.

*

W.B., *

*

Defendant - Appellant. *

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Submitted: June 13, 2006

Filed: July 12, 2006 

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Before BYE, LAY, and RILEY, Circuit Judges.

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BYE, Circuit Judge.

W.B. appeals his conviction by bench trial of being a juvenile delinquent as a

result of his aggravated sexual abuse of a minor, arguing testimony by a forensic

interviewer concerning the victim’s out-of-court statements should not have been

admitted under Federal Rule of Evidence 807. We affirm the district court.1
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I

W.B., an Indian minor, was charged with being a juvenile delinquent in an

information alleging he committed aggravated sexual abuse on J.D., a minor, between

April 1, 2002, and October 1, 2002, in Indian country, in violation of 18 U.S.C.

§§ 1153, 2241(c). The district court adjudicated the issue and determined W.B. was

a juvenile delinquent. He appeals his conviction arguing testimony from the forensic

interviewer, Lora Hawkins, was improperly admitted. 

Hawkins interviewed J.D. on January 13, 2004, in connection with a separate

and unrelated investigation. At the time, J.D. denied ever having been sexually

abused. Hawkins again interviewed J.D. on January 26, 2005, in connection with the

instant case. She followed the organizational protocols of her employer, the Child

Advocacy Center of the Black Hills in Rapid City, South Dakota, in interviewing J.D.

on both occasions. During the 2005 interview, J.D. stated W.B. put his “d-i-c-k” into

her “peach” when she was eight years old. During the 2005 interview, J.D. had

difficulty recalling precisely when the assault occurred, but did recall the season, her

age, and her grade in school. 

The government provided W.B. with notice pursuant to Federal Rule of

Evidence 807 stating its intention to call Hawkins as a witness to offer J.D.’s

statements during the 2005 interview. In response, W.B. filed a motion in limine

attempting to prevent such testimony, arguing the statements did not meet the

foundational requirements of Rule 807 and would improperly bolster J.D.’s credibility

as prior consistent testimony of J.D.’s anticipated trial testimony. The district court

did not hold a pretrial hearing on the issue, rather deciding to rule on it during trial as

circumstances may then require.
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At trial, J.D. was the government’s first witness. She testified on one occasion,

W.B., her cousin, put the part of his body that goes “pee” into the part of her body that

goes “pee,” hurting her and causing her to bleed. She further testified she had never

been so touched before or after the incident. 

Hawkins was the government’s second witness. The intent was to ask her

specific details of the incident. After answering a few foundational questions

regarding the techniques used during the interview and her qualifications as an

interviewer, she testified to the statements made by J.D. during the 2005 interview.

Hawkins testified J.D. revealed she was molested in W.B.’s bedroom and then

provided the following:

[J.D.] stated that her cousin [W.B.] put his middle – or the other way.

She referred to it was his d-i-c-k into her peach; or as she also called it

and pronounced in this way, her “crouch.” 

. . . 

She clearly indicated that as being the labial-vaginal area of her body;

also identified on a simple anatomical sketch. 

. . .

She expressed that she was eight years old. 

. . .

In conjunction with that I asked her if she knew the seasons of the year.

She name [sic] the four seasons. She specified that it was summer, that

it was hot outside, and also that she was in the second grade as she

described the time frame.
2

The government presented one other witness, a school official, who testified

to the time during which school was in session during the relevant time period. No

other evidence was admitted by the government to corroborate J.D.’s testimony. 

W.B. presented the testimony of three witnesses who recounted incidents when

J.D. denied being sexually abused by W.B. The first witness testified J.D. told her the

allegations against W.B. were false and were fabricated by her mother. The second

witness, J.D.’s aunt, testified she took J.D. to the hospital upon learning of the

allegation, where, in her presence, J.D. denied to a doctor ever having been molested.

The third witness testified J.D. told her and her husband she was molested by someone

other than W.B.

3

W.B.’s Confrontation Clause challenge has been abandoned on appeal. On

appeal, W.B. argues Hawkins’s testimony, as bolstering and cumulative, caused W.B.

unfair prejudice.

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Tr. at 83. During cross-examination, Hawkins noted J.D.’s denial of molestation

during the 2004 interview and stated young children disclose abuse when they are

ready to do so.2

W.B. objected to Hawkins’s testimony on Confrontation Clause, Rule 807,

improper bolstering, and cumulative grounds.3

 In ruling on W.B.’s Rule 807

objection, the district court noted the five foundational requirements for admissibility

and determined the statements admissible under Rule 807. The district court

concluded Hawkins’s testimony was more probative than any other evidence which

could reasonably be procured by the government, citing United States v. Peneaux, 432

F.3d 882 (8th Cir. 2005), because J.D.’s testimony was inconsistent and unclear. The

district court reserved ruling on the foundational elements establishing the

circumstantial guarantees of trustworthiness until it had reviewed the videotape. At

the close of evidence, the district court concluded its Rule 807 analysis and

determined the videotape established a proper foundation for Hawkins’s testimony.

The district court then received such testimony into evidence. At the close of

evidence, W.B. moved for a judgment of acquittal and to dismiss the information.
4

Before the district court, W.B. argued Hawkins’s testimony did not relate to

a material fact, was not the most probative evidence on the issue, and was not

supported by the circumstantial guarantees of trustworthiness required by Rule 807.

Although we have considered the issue of trustworthiness sua sponte, Peneaux, 432

F.3d at 892 (“Although Peneaux has not argued that these statements are

untrustworthy, we nevertheless consider the issue, for as the trustworthiness of a

statement increases, the justification for excluding it decreases.”) (internal quotation

omitted), we decline to do so in the instant case because, as discussed below, we find

the district court’s justifications for admitting the testimony proper whether the out-ofcourt statements are wholly trustworthy or just trustworthy enough to support

admission under Rule 807.

5

For purposes of Rule 807, our precedent holds a material fact is a fact which

is relevant. Peneaux, 432 F.3d at 892 (“The materiality requirement in Rule 807 is

merely a restatement of the general requirement that evidence must be relevant.”)

(internal quotation omitted). 

6

The government argues it sought admission of Hawkins’s testimony for the

limited purpose of establishing the time frame within which the abuse occurred. We

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Both motions were denied. The district court then found W.B. guilty. W.B. now

appeals his conviction.

II

W.B.’s appeal presents one issue: whether the district court erred in admitting

the testimony of Hawkins under Rule 807 because the evidence was not the most

probative reasonably available evidence regarding the alleged abuse.4

 Hawkins’s

testimony goes to two issues of material fact:5

 the timing of the incident and the

details of the incident. W.B. contests the admission of the testimony as to both issues,

arguing Hawkins’s testimony added nothing which J.D.’s testimony did not already

provide and, to the extent Hawkins provided testimony not already before the district

court, such testimony was not the most probative evidence on the issue.6
find the government’s argument on this point a meritless post hoc rationalization. 

The government presented Hawkins’s testimony for the purpose of testifying

generally to the details of the abuse and the district court, in admitting the testimony,

did not limit the testimony for any particular purpose. Indeed, the district court, in

ruling on the materiality of Hawkins’s proferred testimony, noted the testimony was

material because it would “identify the type of abuse that’s been allegedly inflicted

upon [J.D.], and that is relevant and material to this case.” Tr. at 78. 

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We review a district court’s decision to admit testimony under Rule 807 for

abuse of discretion. United States v. Thunder Horse, 370 F.3d 745, 747 (8th Cir.

2004). In order to admit testimony under Rule 807, 

there must be a showing that (1) the statement has equivalent

circumstantial guarantees of trustworthiness to the other hearsay

exceptions; (2) the statement is offered as evidence of a material fact; (3)

the statement is more probative on the point for which it is offered than

any other evidence which the proponent can procure through reasonable

efforts; (4) the general purposes of the rules and the interests of justice

will best be served by its admission; and (5) adequate notice must be

given to the opposing party.

Peneaux, 432 F.3d at 891 (citations omitted); Fed. R. Evid. 807. 

In United States v. Balfany, 965 F.2d 575 (8th Cir. 1992), we concluded the

testimony of a child victim’s aunt regarding the victim’s out-of-court statements was

inadmissible under the residual hearsay exception of Rule 803(24) (now Rule 807)

because the aunt’s testimony was not “information of a kind or to a degree that [the

child’s] live testimony or the testimony of the other hearsay witnesses could not”

provide. Id. at 582. We noted “the district court could have (and probably should

have) required the prosecution to establish that such information was unavailable from

any other witness before permitting [the aunt] to testify.” Id. Accordingly, we held
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the aunt’s testimony was not the most probative evidence. Id. at 581-82. Similarly,

in Peneaux, we noted “[w]here testifying adults are able to provide information that

the victim is unwilling or unable to give [in the courtroom setting], this testimony may

come in under Rule 807.” 432 F.3d at 893.

As we noted in Balfany, a child’s in-court statements are generally more

probative than a child’s out-of-court statements. 965 F.2d at 582. However, we agree

with Peneaux and Balfany when a child is unable or unwilling to testify in a

courtroom setting, a child’s out-of-court statements may be the most probative

evidence on an issue. Whether such out-of-court statements are the most probative

evidence and are necessary to properly develop an issue, however, requires careful

scrutiny, because hearsay testimony should only be admitted under Rule 807 in

exceptional circumstances. United States v. Renville, 779 F.2d 430, 439 (8th Cir.

1985) (The residual exception rule “was necessary to permit courts to admit evidence

in exceptional circumstances where the evidence was necessary, highly probative, and

carried a guarantee of trustworthiness equivalent to or superior to that which underlies

the other recognized exceptions.”). We agree such exceptional circumstances

generally exist when a child victim of sexual abuse is unable or unwilling to testify

to a material issue regarding the abuse. See, e.g., Peneaux, 432 F.3d at 893; United

States v. N.B., 59 F.3d 771, 776 (8th Cir. 1995); United States v. Grooms, 978 F.2d

425, 427 (8th Cir. 1992). 

As in our prior cases admitting a child victim’s out-of-court statements to an

adult, J.D. was unable or unwilling to recall specific details regarding the abuse during

her in-court testimony, including the time frame of the abuse. J.D. testified to W.B.

inserting the area from where he goes “pee” into the area she uses to go “pee,” causing

her to bleed, but could not recall whether W.B.’s pants were on or off. Regarding the

time frame, J.D. was unable to recall whether the incident occurred during the spring

or summer or whether it was hot or cold outside. We therefore agree with the district
7

W.B. argues Hawkins’s testimony did not add anything to the testimony

provided by J.D. and therefore was not “information of a kind or to a degree that [the

child’s] live testimony could not” provide. However, we believe Hawkins’s

testimony, though similar in nature to J.D.’s testimony regarding the details of the

abuse, served to clarify the type of abuse alleged as well as the time frame within

which the abuse occurred.

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court’s conclusion J.D.’s testimony was at times unclear and inconsistent. Given

J.D.’s reticence in providing details of the abuse and her stated belief she could be hurt

by testifying against W.B. in court, we believe the district court had ample reason to

believe J.D. was unable or unwilling to testify further or more clearly regarding the

details of the abuse. Accordingly, the district court did not abuse its discretion by

concluding J.D.’s out-of-court statements to Hawkins were the most probative

evidence available under Rule 807.7

 

III

Because we conclude the district court did not err in admitting Hawkins’s

testimony, we need not conduct a harmless error analysis. We note, however, even

if the district court erred in admitting Hawkins’s testimony, such error would be

harmless. W.B. argues he suffered prejudice by the admission of Hawkins’s

testimony because the testimony served only to bolster J.D.’s testimony and was

cumulative. The district court conducted a bench trial and in such a situation, we find

little prejudice in the admission of cumulative evidence or testimony which

improperly bolsters a prior witness. See United States v. J.H.H., 22 F.3d 821, 829

(8th Cir. 1994). As we stated in First American State Bank v. Continental Insurance

Co., 897 F.2d 319 (8th Cir. 1990), 

a judgment in a bench trial would not be reversed on the grounds that

incompetent evidence was admitted, unless the competent evidence
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provided insufficient support for the judgment or the incompetent

evidence precipitated a finding that the trial court would not otherwise

have made. . . [and] the admission of incompetent evidence is usually

harmless because there is a presumption that the trial court considered

only competent evidence in making findings.

Id. at 328. J.D.’s testimony, standing alone, would have been sufficient to convict

W.B. of the crime charged in the information. Accordingly, any error in the course

of the bench trial was harmless.

IV

For the foregoing reasons, we affirm the district court.

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