United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3064
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Bruce Thunder Horse, *
*
Appellant. *
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Submitted: March 12, 2004
Filed: June 4, 2004 (Corrected: 06/17/04)
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Before MURPHY, SMITH, and COLLOTON, Circuit Judges.
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SMITH, Circuit Judge.
A jury convicted Bruce Thunder Horse of abusive sexual contact with K.L., a
ten-year-old girl, in violation of 18 U.S.C. §§ 1153, 2244(a)(1), and 2244(c). The
district court1 sentenced him to twenty-seven months of incarceration, thirty-six
months of supervised release, restitution in the amount of $296, and a $100 special
assessment. On appeal, Thunder Horse contends that the district court abused its
1
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
discretion in admitting the testimony of forensics interviewer Lora Hawkins. We
affirm.
I.
The factual summary is based on the presentence report adopted by the district
court. In August 2001, Thunder Horse lived with his sister, Roberta Thunder Horse,
Roberta's ten-year-old niece, K.L., and other members of the family in Wounded
Knee, South Dakota. At approximately 6:00 a.m. on August 4, 2001, Thunder Horse
returned to Roberta's residence intoxicated. When Thunder Horse entered the home,
K.L. was sleeping on the couch in the living room. Thunder Horse picked up K.L.,
carried her downstairs to his sleeping area, and laid her on his mattress. Thunder
Horse instructed K.L. to move over. Thunder Horse positioned himself so that his
front was against her back and proceeded to rub her buttocks and genital area over her
clothing.
K.L. pulled away from Thunder Horse and ran upstairs crying. She told her
cousin, Roberta's twelve-year-old son, that Thunder Horse had touched her. Roberta
was awakened and told of the incident. Thunder Horse was confronted by family
members from the residence, who hit him, accused him of the abuse, and told him to
get out of the house.
Roberta reported the incident to the Indian Health Services on August 10,
2001. K.L. was scheduled for a forensic interview at the Child Advocacy Center
("CAC") of the Black Hills on August 21, 2001, with Lora Hawkins. K.L. told
Hawkins that while sleeping in the living room on the couch, "Uncle Bruce" picked
her up, took her to the basement, laid her on the mattress, covered her up, and rubbed
her "peach" and "the area around her butt where poop comes out." She also stated that
"Uncle Bruce" rubbed himself on her "butt cheeks." K.L. stated that the touching
occurred outside her clothing. During the interview, K.L. circled on an anatomical
drawing the body regions that "Uncle Bruce" had touched. Although CAC used a
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video camera to record the interview, the camera malfunctioned during K.L.'s
interview. Also, the anatomical drawing that K.L. circled, identifying each area that
Thunder Horse touched, was mistakenly destroyed.
On August 27, 2001, FBI agents interviewed Thunder Horse. Thunder Horse
stated that he recalled being awakened by Roberta's daughters who were beating him
and accusing him of abusing K.L. Thunder Horse admitted that he carried K.L.
downstairs, laid her on his mattress, and laid down with her. He stated that he may
have touched her inappropriately in her private parts like the chest or groin, and if he
did, he was sorry.
On November 13, 2002, a single-count indictment was filed in the district court
charging Thunder Horse with abusive-sexual contact in violation of 18 U.S.C. §§
2244(a), 2244(c), and 1153. On November 18, 2002, Thunder Horse was arrested. On
December 18, 2002, after the detention review hearing, Thunder Horse was released
on a personal recognizance bond with pretrial supervision. He was ordered to reside
at the City/County Drug and Alcohol Program clinic, and complete substance abuse
treatment. However, on April 25, 2003, Thunder Horse was terminated from the
program because he failed to follow the program's rules and regulations.
Consequently, Thunder Horse's bond was revoked, and he was detained pending trial.
On May 6, 2003, a jury trial commenced. At trial, the government called
Hawkins, who recounted the statements that K.L. made to her during the interview
at CAC. Thunder Horse raised a hearsay objection to the contents of Hawkins's
testimony, but the court overruled the objection and admitted Hawkins's testimony
under the residual-hearsay exception. Thunder Horse argues that this ruling is
reversible error. We disagree.
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II.
The district court is entitled to some deference in deciding whether to admit
hearsay evidence under Fed. R. Evid. 807, formerly 803(24),2 and we will affirm the
court's ruling unless the court abused its discretion. United States v. Cree, 778 F.2d
474, 477 (8th Cir. 1985). A statement having circumstantial guarantees of
trustworthiness can be admitted under Rule 807, if the court determines that:
(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered
than any other evidence the proponent can procure through reasonable
efforts; and
(C) the general purposes of these rules and the interests of justice must
best be served by admission of the statement into evidence;
Fed. R. Evid. 807. This 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." United States v. Renville, 779 F.2d 430,
439 (8th Cir. 1985).
Thunder Horse contends that Hawkins's testimony lacks circumstantial
guarantees of trustworthiness as required under Rule 807. Specifically, Thunder
Horse urges that Hawkins's testimony is untrustworthy because K.L. did not repeat
the same facts consistently including: (1) K.L.'s statement to Roberta that Thunder
Horse had touched her "middle," and not that he had touched her "peach"; (2) K.L.'s
alleged statements to Nicole, K.L.'s friend, stating that Thunder Horse had never
touched her and that she was sorry3; (3) K.L.'s alleged statements to Stan Zakinski,
2
The content of Rule 803(24) has been transferred to Rule 807 of the Federal
Rules of Evidence.
3
This argument goes against Thunder Horse's defense theory of accidentally
touching K.L. in an inappropriate manner.
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Thunder Horse's private investigator, in January 2003, indicating that Thunder Horse
did not touch her "peach" or "rub her butt." In cases involving the admissibility of a
sexually abused child's hearsay statements under Rule 807, we must assess the
trustworthiness and reliability of an out-of-court statement "in light of the
circumstances at the time of the declaration and the credibility of the declarant."
United States v. Dorian, 803 F.2d 1439, 1444 (8th Cir. 1986) (quoting Renville, 779
F.2d at 440).
We consider a wide range of factors in determining whether this type of
hearsay testimony is sufficiently trustworthy, including: the training and experience
of the interviewer; whether the child was interviewed using open-ended questions;
the age of the child and whether the child used age-appropriate language in
discussing the abuse; the length of time between the incident of abuse and the making
of the hearsay statement; and whether the child repeated the same facts consistently
to adults. United States v. NB, 59 F.3d 771, 776 (8th Cir. 1995). "No single factor is
dispositive; we examine the factors to determine if there are sufficient positive signs
of trustworthiness." Id.
In the instant case, several circumstantial guarantees of trustworthiness are
present. First, the proximity of the statement to the alleged acts–Hawkins's interview
was conducted at the CAC only seventeen days after the incident, while Zakinski's
interview was conducted at a motel room almost six-months later. Second, experience
of the interviewer–Hawkins has twenty years of experience interviewing child
victims. Hawkins testified that she asked the victim open-ended questions rather than
leading questions. Third, the victim was ten years old and discussed the incident of
sexual abuse in a childlike way. "A declarant's young age is a factor that may
substantially lessen the degree of skepticism with which our Court views her motives,
and mitigates in favor of the trustworthiness and admissibility of her declarations."
Dorian, 803 F.2d 1445. Lastly, K.L. denied on cross-examination telling Nicole
anything about the night of the incident. The jury had the opportunity to weigh K.L.'s
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statements made to Hawkins and accord the statements whatever weight it deemed
appropriate.
We hold that K.L.'s statements to Hawkins contained sufficient guarantees of
trustworthiness to satisfy Rule 807. Therefore, we conclude that the admission of
Hawkins's testimony was not an abuse of the district court's discretion.
We affirm the district court's judgment.
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