F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-5145
(D.C. No. 97-CR-51-K)
R.D.A., Jr., a juvenile male, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA and McKAY , Circuit Judges, and BROWN , ** Senior District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
**
Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
Defendant was found guilty, after trial to the bench, 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, in 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 defendant to 18 months’ official
detention for count one, and placed defendant on probation until his twenty-first
birthday for counts two and three. Defendant appeals his judgment and sentence,
arguing that there was insufficient evidence to support the juvenile delinquency
adjudication and that the district court’s refusal to allow testimony regarding
a polygraph test violated his Sixth Amendment rights.
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 inferences drawn therefrom, and
we view the evidence in the light most favorable to the government to determine
whether a reasonable jury could find defendant guilty beyond a reasonable doubt.
See id. The evidence must be substantial and must raise more than a mere
suspicion of guilt. See United States v. Yoakam , 116 F.3d 1346, 1349 (10th Cir.
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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 criminal acts with which he
was charged. He lived near Jimmy, Kimberly and Justin, 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 element of the crime. Our review of
Jimmy’s testimony at trial presents sufficient evidence from which the court
found that Jimmy was incapable of appraising the nature of the sexual act
defendant committed upon him. Reading Jimmy’s testimony in comparison to the
testimony of his two younger siblings, it is obvious that Jimmy was functioning
mentally at a younger age than his physical age. It is readily apparent from
Jimmy’s testimony that he did not understand the difference between a “good
touch” and a “bad touch,” and that he did not understand that there might be
anything objectionable about defendant’s contact. In addition, a clinical
psychologist who had done testing on Jimmy testified that, even though Jimmy
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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 defendant 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. Defendant is six years older than
Kimberly, and she was eight or nine years old at the time. They were not friends
or playmates. Kimberly testified that she pulled her hand back and went home
immediately. She also testified that defendant shot 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 record contains sufficient
evidence to support the district court’s finding of juvenile delinquency on
count two.
Count three also requires proof of defendant’s intent to abuse, humiliate,
harass or degrade. The object of that incident was Kimberly’s twin brother,
Justin. Justin testified that defendant grabbed his “private parts” from behind and
that he told defendant to stop. In addition, Kimberly testified that she saw
defendant pull Justin’s pants down, reach from behind Justin and through his legs,
and grab Justin’s “private parts.” The record contains sufficient evidence
to support the finding of juvenile delinquency on count three.
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Finally, defendant argues that the district court’s refusal to allow testimony
regarding the results of his polygraph test violated his Sixth Amendment rights.
The district court did not invoke a per se rule disallowing testimony regarding
polygraph tests, although we note that the Supreme Court has recently held that
such a per se rule does not necessarily significantly 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 case, the district court questioned
the witness regarding his knowledge of the scientific aspects and opinions of
polygraph results and determined that the witness was not qualified to submit
expert testimony on the subject. The witness was trained in administering
polygraph tests, but he had no knowledge of the scientific accuracy of the results.
Federal Rule of Evidence 702 is the guideline by which 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 the testimony is scientifically
valid and . . . whether that reasoning or methodology properly can be applied to
the facts in issue.” 509 U.S. at 592-93. There was 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,
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it is significant that defendant testified on his own 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 evidence in support of the
district court’s findings of juvenile delinquency on counts one, two, and three.
Further, defendant suffered no violation of his constitutional rights by the district
court’s refusal to allow testimony regarding the results of his polygraph test.
The convictions and sentence are AFFIRMED.
Entered for the Court
Monroe J. McKay
Circuit Judge
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