United States v. Joseph E. Espinosa, Sr.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-3354
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Joseph E. Espinosa, Sr., *
*
Appellant. *
___________

Submitted: June 11, 2009
Filed: October 26, 2009
___________

Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.
___________

SMITH, Circuit Judge.

A jury convicted Joseph E. Espinosa Sr. of aggravated sexual abuse, in
violation of 18 U.S.C. §§ 1153, 2241(a)(1), 2241(c), and 2246(2)(A) ("Count IV"),
and abusive sexual contact, in violation of §§ 1153, 2244(a)(1), and 2246(3) ("Count
VII").1 The district court sentenced Espinosa to 30 years' imprisonment on the
aggravated sexual abuse conviction and 20 years' imprisonment on the abusive sexual
contact conviction, with the sentences to run concurrently. The court also sentenced

1
Espinosa's motion for judgment of acquittal was granted as to Counts I, II, V,
VI, and VIII. The jury was unable to reach a verdict on Count III, and the district court
dismissed it.
Espinosa to five years of supervised release on each count, with the sentences to run
concurrently. On appeal, Espinosa argues that (1) the evidence was insufficient to
support his conviction; (2) an expert witness improperly bolstered another witness's
credibility; and (3) inadmissible hearsay was improperly admitted. We now affirm
Espinosa's conviction on Count IV and reverse his conviction on Count VII because
insufficient evidence exists as to the victim's age at the time of the offense conduct.

I. Background
Espinosa lived with his girlfriend, Marie Flying, in Rosebud, South Dakota, for
18 years.2 Flying obtained legal custody of her grandniece, T.H.S., when T.H.S. was
an infant and raised T.H.S. in the home that Flying shared with Espinosa.3 T.H.S.
suffers from post-traumatic stress disorder, fetal alcohol syndrome, and mild mental
retardation. At age 12, T.H.S. functioned at a mental level of six or seven years old
and had a full-scale IQ of 50. T.H.S. resided at a school dormitory during the week
and at home with Flying and Espinosa on the weekends.

According to T.H.S., on the weekend of February 25–27, 2007, while she was
staying with Espinosa and Flying, Espinosa entered her bedroom while she was
sleeping and undressed himself and T.H.S. T.H.S. alleged that Espinosa "got on me"
and "stuck his in me." T.H.S. later informed Flying of the incident. Flying called her
son, David Flying, to come and pick up T.H.S. T.H.S. stayed with David Flying for
the remainder of the weekend. While there, T.H.S. told David Flying what Espinosa
did to her. After the weekend, David Flying took T.H.S. back to the dormitory, and
he advised T.H.S. to recount the incident to the dormitory staff.

2
All of the events relevant to this appeal occurred on the Rosebud Sioux Indian
Reservation.
3
Although T.H.S. is Flying's grandniece, Flying referred to T.H.S. as her
granddaughter, and T.H.S. called Flying "Grandma" and Espinosa "Grandpa."

-2-
 At school, T.H.S. notified a member of the staff, who then telephoned the
Rosebud Sioux Tribe Law Enforcement. T.H.S. was transported to Indian Health
Services Hospital in Rosebud, South Dakota. A physical examination at the hospital
revealed redness, swelling, and bruising in her vaginal area. Ruth Thomas, a certified
physician's assistant (PA), testified that part of T.H.S.'s vaginal area, including inside
the vaginal vault, was abraded, sore, raw, "swollen, and it was red, and it was irritated-
looking." Thomas testified that T.H.S. was in pain during the vaginal examination.
She also opined that the injuries that she observed were caused within the past one,
two, or three days. While Thomas attempted to use a speculum during the
examination, she discarded it because "it was too painful." A sexual assault kit did not
reveal any physical evidence.

Later, the Federal Bureau of Investigation interviewed K.H.S., T.H.S.'s sister.
K.H.S. disclosed that Espinosa had previously sexually abused her. She testified that
when she and Espinosa were alone at the house, he chased her around the dining room
table. On one occasion, she said that he cornered her between the wall and the table,
picked her up, and carried her to a nearby couch. He then rubbed her thighs, genitalia,
and breasts through her clothing with his hand, despite her objection. According to
K.H.S., the encounter lasted between five and ten minutes.

Espinosa was indicted on two counts of aggravated sexual abuse of a child, in
violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(A) ("Count I and Count II");
one count of aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153,
2241(c), and 2246(2)(D) ("Count III"); two counts of aggravated sexual abuse of a
child, in violation of 18 U.S.C. §§ 1153, 2241(a)(1), 2241(c), and 2246(2)(A) ("Count
IV and Count V"); one count of aggravated sexual abuse of a child, in violation of 18
U.S.C. §§ 1153, 2241(a)(1), 2241(c), and 2246(2)(C) ("Count VI"); one count of
abusive sexual contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(1), and 2246(3)
("Count VII"); and one count of abusive sexual contact, in violation of 18 U.S.C.
§§ 1153, 2244(a)(3), and 2246(3) ("Count VIII"). Counts I through VI alleged

-3-
offenses involving T.H.S., while Counts VII and VIII alleged offenses involving
K.H.S.

At trial, following the government's case-in-chief, the district court granted
Espinosa's motion for judgment of acquittal on Counts I, II, V, VI, and VIII. The jury
returned guilty verdicts on Count IV and Count VII. The jury was unable to reach a
verdict on Count III, aggravated sexual abuse, and the court dismissed it. The district
court imposed concurrent sentences of 30 years' imprisonment on Count IV and 20
years' imprisonment on Count VII. The court also sentenced Espinosa to five years of
supervised release on each count, with the sentences to run concurrently. Espinosa
appeals, raising four primary errors, including sufficiency of the evidence.

II. Discussion
On appeal, Espinosa argues that the district court erred by (1) failing to grant
his motion for acquittal because the evidence presented was insufficient to prove
actual penetration or an attempt at actual penetration; (2) failing to grant his motion
for acquittal because the government did not provide sufficient evidence of the age of
the complaining witness at the time of the alleged offense; (3) denying his motion for
a mistrial after a psychiatrist twice asserted that the complaining witness had been
sexually abused; and (4) allowing the government to introduce inadmissible hearsay
and vouching statements. After review, we affirm the district court.

A. Sufficiency of the Evidence
Espinosa first attacks the sufficiency of the evidence presented by the
government. Specifically, he argues that the government did not prove actual
penetration or an attempt at penetration when trying to prove sexual abuse. He also
argues that the government did not prove the age of K.H.S., the complaining witness.

Federal Rule of Criminal Procedure 29(a) provides, in relevant part, that "[a]fter
the government closes its evidence or after the close of all the evidence, the court on

-4-
the defendant's motion must enter a judgment of acquittal of any offense for which the
evidence is insufficient to sustain a conviction." Espinosa asserts that the district court
erred in not granting his motion for judgment of acquittal based on insufficient
evidence. We review a motion for judgment of acquittal under a de novo standard of
review. United States v. Reddest, 512 F.3d 1067, 1069–70 (8th Cir. 2008).

We employ a strict standard of review regarding denials of motions for
acquittal, viewing the evidence in the light most favorable to the guilty
verdict, resolving all evidentiary conflicts in favor of the government,
and accepting all reasonable inferences supported by the evidence. A
jury verdict will not lightly be overturned and we will reverse only if no
reasonable jury could have found the defendant guilty beyond a
reasonable doubt. When reviewing the sufficiency of the evidence to
support a conspiracy conviction, we will affirm if the record, viewed
most favorably to the government, contains substantial evidence
supporting the jury's verdict, which means evidence sufficient to prove
the elements of the crime beyond a reasonable doubt.

United States v. Thompson, 533 F.3d 964, 970 (8th Cir. 2008) (internal quotations and
citations omitted). In granting or denying the motion, the "district court has very
limited latitude in ruling upon a motion for judgment of acquittal." United States v.
Baker, 367 F.3d 790, 797 (8th Cir. 2004).

1. Sexual Abuse of T.H.S.
Espinosa argues that the evidence was insufficient to prove penetration or an
attempt as required under the statute. To convict a defendant of aggravated sexual
abuse, as charged in Count IV, the government must prove that "(1) the defendant did
knowingly cause and attempt to cause another to engage in a sexual act, (2) by the use
of force or threat of force, (3) the defendant is an Indian, and (4) the offense occurred
in Indian Country." United States v. Youngman, 481 F.3d 1015, 1020 (8th Cir. 2007)
(citing 18 U.S.C. §§ 1153, 2241(a), and 2246(2)). A sexual act requires "contact
between the penis and the vulva or the penis and the anus, and for purposes of this

-5-
subparagraph contact involving the penis occurs upon penetration, however, [sic]
slight." 18 U.S.C. § 2246(2)(A). Because Espinosa only challenges the evidence as to
whether he knowingly caused or attempted to cause the victim to engage in a sexual
act, he necessarily concedes the other elements of the statute.

Espinosa cites Reddest to support his sufficiency argument. In Reddest, we
reversed the defendant's conviction for engaging in a sexual act with a person between
the ages of 12 and 16. 512 F.3d at 1071–72. The victim testified that the defendant
reached inside her underwear and put his finger "'[r]ight in my—almost close to my
[hole].'" Id. at 1072. On appeal, we held that this evidence was insufficient to prove
penetration of the genital opening because it was unclear "where [the defendant's]
finger was or how 'close' it was to the genital opening." Id.

Espinosa also relies on United States v. Plenty Arrows, which overturned an
aggravated sexual abuse conviction for insufficiency of the evidence. 946 F.2d 62, 65
(8th Cir. 1991). In Plenty Arrows, the defendant was accused of sexual abuse of a
nine-year-old boy. Id. at 63. The victim testified that "while his pants were off, [the
defendant] touched him 'from my back of my behind' and that [the defendant] had
done this 'with his private part.'" Id. at 64. On appeal, the defendant argued that the
victim's testimony was insufficient to establish "that contact occurred between his
penis and the victim's anus." Id. We agreed, holding that the victim's testimony alone
was "too vague to support the inference that contact involving penetration occurred
between the penis and anus" because the "statute is anatomically specific, and the
testimony lacks the necessary specificity." Id. at 65.

Unlike in Reddest and Plenty Arrows, the evidence presented here sufficiently
supported the jury's verdict. At trial, T.H.S. testified that Espinosa removed her
clothes, got on top of her, and "stuck his in me." She stated that his "part" was
touching her body. Using an anatomically correct diagram of an unclothed female,
T.H.S. circled the genital area and stated that he touched her there. She testified that

-6-
her legs were apart when he was on top of her. Then, using an anatomically correct
diagram of an unclothed male, T.H.S. circled the genital area, indicating which "part"
of Espinosa had touched her. She also testified that it hurt when Espinosa got on top
of her.

Moreover, physical evidence gathered following the incident corroborated
T.H.S.'s testimony. Thomas, the PA, examined T.H.S.'s vaginal area and testified that
part of T.H.S.'s vaginal area was abraded, sore, raw, swollen, red, and "irritated-
looking." She also testified that T.H.S. was in pain during the vaginal examination and
opined that the injuries she observed were caused within the past one to three days.
Accordingly, the evidence was sufficient to establish the first element of the
aggravated sexual abuse charge. We affirm the district court's denial of Espinosa's
motion for acquittal.

2. Age of K.H.S.
Next, Espinosa argues that the government failed to prove that K.H.S.'s age was
below 12 when the alleged abusive sexual contact occurred for purposes of Count VII.
In support of his argument, Espinosa points out that the government (1) never
introduced K.H.S.'s birth date into evidence and (2) failed to introduce evidence of a
particular date upon which the alleged sexual contact occurred. According to
Espinosa, the government failed to prove that K.H.S. was under the age of 12 during
the entire period in which the offense conduct could have occurred.

The elements of abusive sexual contact are that Espinosa "(1) knowingly and
intentionally engaged in sexual contact with a person under the age of 12; (2) intended
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person; (3) is an Indian; and (4) committed the act in Indian country." United States
v. Hollow Horn, 523 F.3d 882, 890 (8th Cir. 2008) (18 U.S.C. §§ 1153, 2244(a)(1),
2241(c), and 2246(3)). Espinosa only attacks the first element, arguing that the
government did not prove that K.H.S. was under the age of 12.

-7-
 The Plenty Arrows case contains helpful analysis for determining the
sufficiency of evidence on K.H.S.'s age. In Plenty Arrows, "[t]he victim testified that
[the defendant] put his penis in the victim's mouth, but was unable to state when that
occurred." 946 F.2d at 65. When asked whether the incident occurred over Christmas
vacation, the victim responded, "I don't know." Id. On appeal, the defendant argued
that the evidence was insufficient to support his conviction for aggravated sexual
abuse under 18 U.S.C. § 2245(2)(B) because the government failed to prove that "the
aggravated sexual abuse occurred 'on or about' December 28, 1988, as alleged in the
indictment." Id. In response, the government maintained that the jury could have
concluded "that the abuse occurred on any date between October 1986 and July
1990—the only period of time that [the defendant] had access to the victim—and that
any date during that period would be reasonably near the December 1988 date in the
indictment." Id.

With regard to the time span alleged in the indictment, we acknowledged that

[i]f the date is not a material element of the crime charged, "a variance
between the date in the indictment and the proof is not fatal if the proof
shows that the acts charged were committed on a date within the statute
of limitations and prior to the return date of the indictment."

Id. (quoting United States v. Joyner, 539 F.2d 1162, 1164–65 (8th Cir. 1976)
(emphasis added in Plenty Arrows). But in Plenty Arrows, "[t]he indictment was
returned on September 20, 1989," and "[t]he victim's testimony provided no limitation
as to the period of time when the oral sodomy occurred." Id. As a result, "the act could
have occurred . . . at any time up until the trial in July 1990 if [the defendant] had
access to the victim during that time." Id. The government conceded that the victim
was, in fact, around the defendant "up until the time of trial." Id.

We held that "[a] verdict cannot be based on an act that could have occurred
after the return of the indictment, and the jury had no basis for inferring that the act

-8-
occurred before that date." Id. Thus, insufficient evidence existed to support the
defendant's conviction for aggravated sexual abuse. Id. at 65–66.

Regarding the issue of K.H.S.'s age, the present case is substantially similar to
Plenty Arrows. The indictment alleged that the events occurred "[o]n or about between
the 1st day of August, 2002, and the 28th day of September, 2003." On April 16,
2008, K.H.S. testified that she was 16 years old.4 When asked whether she
remembered how old she was when the alleged sexual abuse occurred, she replied, "I
don't know." Nor could she recall what grade she was in when the offense conduct
occurred. Therefore, K.H.S.'s testimony did not establish how old she was at the time
the alleged sexual abuse occurred.

But K.H.S. did testify that Flying had a red car when the offense conduct
occurred. The government attempted to establish K.H.S's age by relying on Flying's
testimony. According to the government, Flying's testimony shows that the offense
conduct occurred during the time frames alleged in the indictment—August 1, 2002
to September 28, 2003—because Flying testified that she once owned a red Ford
Mustang that was repossessed either (1) by August 1, 2002, or (2) in the summer of
2003.

Flying testified that she remembered owning a red Mustang. On direct
examination, she said that she purchased the car in "2002." When asked during what
period of time she owned the car, she replied, "I don't know. I think it was 2000. I only
had it for like three years." While still on direct examination, she reaffirmed that she
purchased the car in 2002 and owned it for three years. When asked if she had the car
up until 2005, she replied, "Somewhere in there, yeah."

4
K.H.S's birth date, which was never presented at trial, is September 29, 1991.
The government concedes that Espinosa could not have been convicted of this crime
if the act occurred after September 28, 2003, because K.H.S. turned 12 years old on
September 29, 2003.

-9-
 On cross examination, Flying was asked whether she was "absolutely sure"
when she bought the car; she replied, "No. Actually, I did. It was 2000." She then said
that she was "for sure" that she got the car in 2000. Additionally, she testified that she
had the car for "about three years." When asked if she could have had the car for
"maybe two years," she replied, "Well, like I said, at the most three years. I'm not too
sure." (Emphasis added.) According to Flying, it was possible that the car had already
been taken by August 1, 2002. She said, "For sure, I know they took it by the
summertime." When the district court tried to clarify with Flying when she bought the
car and when it was repossessed, she said that she bought it in 2000 and that it was
repossessed in the summer, but she could not remember "of what year." On further
cross-examination, she said that she had the car for "approximately about almost three
years." When the court clarified with her that she had the car "almost three years," she
replied, "Almost three years." When she was again asked when she bought the car, she
stated that she could not remember when she bought the car. When asked when the
car was repossessed, she said, "I can't remember that. It was almost summertime
then." (Emphasis added.) Then, defense counsel asked, "But it was summertime?"
Flying replied, "Yes, almost." When asked whether it was before July 4th "in that
summer," she replied, "I can't remember." (Emphasis added.) Then, she was again
asked if she had "the car two years," and she answered, "At the most."

On redirect examination, she clarified that, to her best recollection, she bought
the car in 2000. She said that she had the car "about two years," 'two to three years at
the most." She reconfirmed that the car was repossessed in the summertime. Then,
counsel asked, "Okay. So if you bought it in 2000 and repossessed it in the
summertime, the latest they would have repossessed it is the summer of 2003,
correct?" Flying answered, "Yes. I think so. Yeah. Like I said, I can't remember when
they came after it." Id. at 322. She was then asked, "But that's your best recollection;
is that right?" And Flying responded, "Yes, yeah. I just can't remember." (Emphasis
added.)

-10-
 On re-cross examination, Flying was asked whether it was possible that she
only had the car two years, and it was the summer of 2002, to which she responded,
"Like I said, I can't remember. At the most, like I say, two to three years. Yeah."
(Emphasis added.)

As a threshold matter, Flying's testimony as to when she owned the red Ford
Mustang is no better than speculative and thus an insufficient basis for concluding
when the alleged abuse occurred. Repeatedly, throughout her testimony, she stated
that she could not remember and was not sure of when the car was repossessed. "We
cannot sustain a conviction based on mere suspicion or the possibility of guilt." United
States v. Kenyon, 481 F.3d 1054, 1068 (8th Cir. 2007) (internal quotations and citation
omitted) (holding that the evidence was insufficient to support conviction on one of
two counts alleging aggravated sexual abuse of a child on basis of contact between
defendant's penis and victim's mouth, as victim's testimony that such contact occurred
"twice maybe" was immediately followed by her statement that she did not know
whether it happened once or twice, and there was no independent evidence of such
encounters).

Flying seemed to settle on the summer of 2003 as the repossession date.
However, accepting that as the probable date of repossession, in light of the evidence
provided to the jury as to K.H.S.'s probable age, K.H.S. would have already turned 12
years old. On April 16, 2008, K.H.S. testified that she was 16 years old. But she could
have turned 17 years old the very next day—April 17, 2008. As a result, she could
have turned 12 years old on April 17, 2003, or anytime during the following year
through April 16, 2004. By the time that the car was repossessed in the summer of
2003, K.H.S. would have already turned 12 years old.

Relying on Plenty Chief, the government appears to argue that a failure to prove
the age element may be ignored if it demonstrates "that the acts charged were
committed on a date within the statute of limitations and prior to the return date of the

-11-
indictment." 946 F.2d at 65 (internal quotations and citation omitted). The government
points out that Flying testified to owning the car not only in the summer of 2003, but
also in 2000, 2001, and 2002—periods of time in which K.H.S. would have been
under the age of 12. Therefore, the government concludes that the jury had before it
evidence that the offense conduct occurred during the time frames alleged in the
indictment—August 1, 2002 to September 28, 2003. However, the government misses
the point. Its proof failed to establish that K.H.S. was under the age of 12 during the
entire period in which the offense conduct could have taken place. Flying's testimony
indicated that she owned the red Ford Mustang until at least the summer of 2003;
therefore, she necessarily owned it both before and after April 17, 2003—the earliest
date that K.H.S. could have turned 12 years old. The government presented no
evidence to the jury from which it could infer that the offense conducted occurred
prior to April 17, 2003.

Finally, the government asserts that the jury could have drawn an inference
from the district court's recitation of the indictment allegations during jury selection
and from the prosecutor's opening statement as to K.H.S.'s age. But "[i]ndictments, of
course, are not evidence." United States v. Logan, 210 F.3d 820, 825 n.3 (8th Cir.
2000). Nor are "statements of counsel" evidence. United States v. Smith, 508 F.3d 861,
866 (8th Cir. 2007).

Accordingly, we hold that the evidence was insufficient to establish alleged
abusive sexual contact occurred for purposes of Count VII.

B. Psychiatrist Testimony
Next, Espinosa argues that his motion for mistrial should have been granted
after the psychiatrist improperly bolstered T.H.S.'s credibility. We review a motion
for mistrial under an abuse of discretion standard. United States v. Street, 548 F.3d
618, 624 (8th Cir. 2008).

-12-
 An abuse of discretion occurs when a relevant factor that should have
been given significant weight is not considered, when an irrelevant or
improper factor is considered and given significant weight, or when all
proper and no improper factors are considered, but the court in weighing
those factors commits a clear error of judgment.

United States v. West, 28 F.3d 748, 750 (8th Cir. 1994) (internal quotations and
citation omitted).

"It is generally within the discretion of the district court to decide whether the
fairness of a trial has been compromised by prejudicial testimony . . . ." United States
v. Brandon, 521 F.3d 1019, 1026 (8th Cir. 2008). "To determine whether a curative
instruction or a mistrial is the proper response . . . , the court must consider whether
an inference about the [improper testimony] may be critical in assessing the witness'[s]
credibility and whether the witness'[s] credibility is vital to the case." Street, 548 F.3d
at 628 (internal quotations, alterations in Street, and citation omitted). "The district
court has broad discretion to grant or deny a motion for mistrial because it is in a far
better position to weigh the effect of improper testimony, and because less drastic
measures such as a cautionary instruction are generally sufficient to alleviate prejudice
flowing from improper testimony." United States v. Davidson, 122 F.3d 531, 538 (8th
Cir. 1997). "Admission of a prejudicial statement is normally cured by striking the
testimony and instructing the jury to disregard the remark." Brandon, 521 F.3d at
1026. "We assume that the jury followed the district court's instruction." United States
v. Fletcher, 322 F.3d 508, 516 (8th Cir. 2003). "When the evidence of guilt is
substantial, we may find that the allegedly improper testimony was harmless."
Brandon, 521 F.3d at 1026.

During direct examination of Dr. Tamara Vik, a child and adolescent
psychiatrist who worked directly with T.H.S., the government asked Dr. Vik about her
diagnostic impressions of T.H.S. Dr. Vik answered that T.H.S. suffers from
"[p]osttraumatic stress disorder." Then, the government asked Dr. Vick about her

-13-
diagnostic impressions of T.H.S. "with respect to fetal alcohol syndrome." Dr. Vick
answered that T.H.S. had "partial fetal alcohol syndrome with confirmed exposure"
and that "[t]here is also mild mental retardation and [that T.H.S. is the] victim of
physical and sexual abuse." Espinosa's counsel objected to the answer, and the district
court advised the jury that it "should disregard that last opinion as to the fact that
the—that T.H.S. is a victim of sexual and physical abuse. Disregard that."

The government then asked Dr. Vik "whether T.H.S.'s posttraumatic stress
disorder would be consistent or inconsistent with her being sexually abused." After
the district court overruled a defense objection, Dr. Vik replied that her opinion was
"[t]hat [T.H.S.] has suffered sexual abuse." After Espinosa's counsel objected, the
district court stated to the jury:

The answer is stricken. The jury should disregard that. That's not up to
her to tell you that, nor is it up to me to tell you that or anybody else.
That's entirely up to you, and so that's invading the province of the jury,
and the answer is stricken. The question is—it's also not responsive. The
question was whether it's consistent or inconsistent.

After the government concluded its direct examination of Dr. Vik, Espinosa moved
for a mistrial. Noting that Dr. Vik's opinion was not necessarily tied to sexual abuse
by Espinosa, the court observed, outside the hearing of the jury:

I would declare a mistrial were there not—had the Court not permitted
the defendant to go into this evidence of other sexual abuse of the
defendant. So that mitigates it. And I think there is not sufficient grounds
for a mistrial, given the Court's immediate corrective action, and I may
instruct the jury further on that. So that motion will be denied.

Espinosa suggests that Dr. Vik's improper assertions of knowledge that T.H.S.
suffered sexual abuse critically undermined the jury's ability to fairly evaluate T.H.S.'s
credibility. But the district court clearly and promptly admonished the jury to

-14-
disregard that part of Dr. Vik's testimony that could be construed as having invaded
the province of the jury, and we have repeatedly held that jurors are presumed to
follow the court's instructions. See Fletcher, 322 F.3d at 516. After having heard the
entirety of the evidence, the district court again admonished the jury, stating that the
"[t]estimony and questions that I struck from the record, or told you to disregard, are
not evidence and must not be considered." After the district court instructed the jury,
Espinosa's counsel stated, "I appreciate that the Court gave a curative instruction, and
the Court's demeanor and tone was very firm in addressing the jury."

Moreover, the district court explained that its ruling was based on "the fact that
there is going to be evidence that the alleged victim has made statements as to other
sexual abuse . . . . So it's not tied to the victim necessarily." Later, T.H.S. testified to
several other allegations she had made in the past concerning sexual abuse that she
had suffered, none of which involved Espinosa.

We have also held that where the evidence is substantial, we will find the
improper testimony harmless. Brandon, 521 F.3d at 1026. Here, the jury could have
disregarded Dr. Vik's testimony and nonetheless found that T.H.S. had been abused.
T.H.S. testified that Espinosa "stuck his in me." Thomas, the PA, testified that T.H.S.'s
vaginal area was abraded, sore, raw, swollen, red, and "irritated-looking." Thomas
also testified that the injury she observed had occurred within the last few days. Any
error by the district court in failing to grant a mistrial was harmless. Id. In sum, based
on the evidence presented at trial and the district court's curative instructions as to Dr.
Vik's testimony, the district court did not abuse its discretion in denying Espinosa's
motion for a mistrial.

C. Inadmissible Hearsay
Finally, Espinosa argues that the district court abused its discretion by admitting
hearsay statements over his objection. He asserts that the government introduced
multiple prejudicial statements from witnesses attesting to T.H.S.'s alleged prior

-15-
consistent statements accusing Espinosa of abuse. "Evidentiary rulings are reviewed
for abuse of discretion, and we afford deference to the district judge who saw and
heard the evidence."5 United States v. Davidson, 449 F.3d 849, 853 (8th Cir. 2006)
(internal quotations and citation omitted). In addition to showing an error, Espinosa
must establish that the error was not harmless. United States v. Eagle, 498 F.3d 885,
888 (8th Cir. 2007). "An error is harmless if we conclude that no substantial rights of
the defendant were affected and that the error did not influence or had only a very
slight influence on the verdict." Id. (internal quotations and citation omitted). Rule 801
defines "hearsay" as "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Fed. R. Evid. 801(c). Hearsay is inadmissible unless it falls within an
established exception. Fed. R. Civ. 802. Espinosa argues that the district court abused
its discretion by allowing multiple witnesses to testify to out-of-court statements in
violation of the hearsay rules. He argues that the cumulative effect of this testimony
was to improperly bolster T.H.S.'s credibility. We disagree.

Espinosa first argues that the district court erred when it allowed the
government to elicit testimony from Marie Flying implying that T.H.S. had accused
Espinosa of an abusive act. The testimony went as follows:

Q. And what did you say to him?

A. I just asked him if it was true.

Q. And what was his response?

5
In its brief, the government advocated a plain error standard of review. But the
government did not set out which statements were not objected to before the district
court. Espinosa contends that all of the statements with which he takes issue were
properly objected to below. We agree with Espinosa and, therefore, apply the abuse-
of-discretion standard rather than the more deferential plain error standard.

-16-
 MS. MINER: Objection. Hearsay.

THE COURT: Overruled.

Q. (BY MR. SEILER) You may answer. What was the defendant's
response after you asked him if it was true what [T.H.S.] said?

A. He was too busy to even do things like that.

* * *

Q. (BY MR. SEILER) When you say you had faith in him, that he
wouldn't do it, you don't know whether he did it or he didn't do it,
do you?

MS. MINER: Objection, Your Honor. Improper question, not
relevant, and invades the province of the jury.

THE COURT: Overruled. She may answer . . . .

A. No . . . .

Q. And when you confronted him about the allegations, with respect
to [T.H.S.], he didn't deny them, did he?

A. No.

Second, Espinosa objects to Flying's testimony regarding conversations she had
with T.H.S. about Espinosa, Flying's description of T.H.S.'s appearance, and Flying's
statement that she wanted T.H.S. to get out of the house for T.H.S.'s safety.

Third, Espinosa objects to the district court's ruling regarding David Flying's
testimony during direct examination:

-17-
A. I asked [T.H.S.] what happened and she told me, same thing about
what my mom told me.

MS. MINER: Objection, Your Honor, as to what was said to him.
Calls for hearsay.

THE COURT: Well, he hasn't said yet. Overruled.

Q. (BY MR. SEILER) So after you got to your residence, you did
have a conversation with [T.H.S.]?

A. Yes.

Q. And what she told you, was that consistent with what your mom
told you [T.H.S.] said?

MS. MINER: Your Honor, I would object. It doesn't necessarily
call for hearsay, but it goes towards vouching for what one person
apparently said in connection with another person. It's an
improper question.

THE COURT: Overruled.

Q. (BY MR. SEILER) You may answer, sir.

A. What was the question?

Q. If what [T.H.S.] told you when you got back to your residence
was consistent with what your mom said [T.H.S.] told her?

MS. MINER: Same objection.

A. Yes.

THE COURT: Overruled.

-18-
Q. Now, when you went over to the Espinosa residence after you
were called by your mother, did your mother indicate if [T.H.S.]
made accusations with respect to the defendant concerning
[T.H.S.]?

MS. MINER: Objection. Hearsay.

THE COURT: Overruled. Just answer that yes or no, sir.

Q. (BY MR. SEILER) Did your mother tell you if [T.H.S.] made
accusations regarding the defendant?

A. Yeah.

Q. Okay. And did she repeat those to you?

A. Yeah.

MS. MINER: Objection. Hearsay.

THE COURT: Same ruling. Overruled. Again, you may have a
standing objection.

Q. (BY MR. SEILER) And describe her demeanor in terms of – as
she was telling you this, as your mother was telling you this,
describe her demeanor . . . .

A. She was crying and kind of upset a little bit but mostly crying . . . .

Q. When your mother told you about the accusation, if you know,
was the defendant in the area, in the vicinity?

Q. (BY MR. SEILER) You are in the house, Mr. Flying, and your
mother has told you about the accusation. Where was the
defendant?

A. On the couch in the living room.

-19-
 Q. Okay. And where were you and your mother standing when she
told you about the accusations?

A. In the living room by the door.

Q. Okay. How far from the defendant?

A. About a foot.

Q. Okay. Did she say it loud enough for the defendant to hear?

A. Yeah. She was crying.

Fourth, Espinosa argues that the following testimony of Cecilia Spotted Tail,
T.H.S.'s dormitory counselor, constituted inadmissible hearsay:

Q. [BY MR. SEILER] And what was the nature of the contact you
had with [T.H.S.]? You said she came to your office?

A. [CECILIA SPOTTED TAIL] Yes . . . .

Q. Okay. And if you know, did the special ed coordinator bring her
to your office?

A. Yes, she did.

Q. Okay. And again, if you know, was that based upon disclosures
that [T.H.S.] had made to her?

A. Yes.

MS. MINER: Objection. It calls for—it's based on hearsay.

THE COURT: Overruled.

Q. (BY MR. SEILER) Your answer is yes?

-20-
A. Yes.

Q. Okay. And what was the purpose of the special education
coordinator bringing [T.H.S.] to your office?

A. For her to tell me what she had told her.

Q. Okay. And at that point did [T.H.S.] make disclosures to you?

A. Yes, she did.

Q. Okay.

MS. MINER: Your Honor, I would object again. The answer is
based on hearsay from [T.H.S.].

THE COURT: Overruled.

Q. (BY MR. SEILER) And based on these disclosures, what did you
do?

A. I took [T.H.S.] into my office and she was upset by them . . . .

Q. And was it at that point she made additional disclosures to you?

A. Yes.

MS. MINER: Objection, Your Honor. It goes to hearsay
statements from [T.H.S.].

THE COURT: Overruled.

MS. MINER: I would object to the Government's use of the word
"disclosures." That has specific prejudicial overtones to it. If he is
going to ask if [T.H.S.] said something to her, that's one thing, but
the Government characterizing it as "disclosures," is—well, it's
prejudicial.

-21-
 THE COURT: Overruled.

Q. (BY MR. SEILER) And based upon the information that you
received from [T.H.S.] what did you do?

A. She just started telling me what she—what had happened to her.

MS. MINER: Objection. That's hearsay.

THE COURT: Overruled. . . . .

Q. (BY MR. SEILER) Did you call anybody? What did you do?

A. Yes. I contacted my supervisor.

Q. Okay. And do you know, were the police called?

A. Yes . . . .

Q. (BY MR. SEILER) And are you a mandatory reporter when it
comes to child abuse or child sexual abuse?

A. Yes, I am.

Finally, Espinosa disputes the admission of the following testimony of
Melissa Isham:

Q. Without saying what [T.H.S.] did, did [T.H.S.] tell you about
things that happened between her and [Espinosa]?

MS. MINER: Objection. That calls for hearsay.

THE COURT: Overruled.

Q. (BY MR. SEILER) You can answer.

-22-
 THE COURT: Just answer that yes or no.

A. Yes.

Q. (BY MR. SEILER) Okay. On how many different times did she
tell you?

MS. MINER: Your Honor, I would like a standing objection to
this line of questioning. It calls for hearsay.

THE COURT: Overruled. She may answer.

Q. (BY MR. SEILER) Did she tell you about it more than once?

A. Yes.

Espinosa argues that the cumulative effect of these statements undermined his
credibility and improperly vouched for T.H.S.'s credibility. He relies on Tome v.
United States, 513 U.S. 150 (1995), for the proposition that prior consistent statements
are not admissible for bolstering purposes. But this case is distinguishable from Tome.
In Tome, six witnesses were allowed to tell the jury what the victim had told them
regarding specific, detailed accounts about how the defendant had sexually abused the
victim. Id. at 154. These witnesses were allowed to "recount [the complaining
witness's] detailed out-of-court statements to them." Id. at 165. The Supreme Court
held that the victim's hearsay statements about the alleged assault were inadmissible
as prior consistent statements. Id. at 166–67. But, in the instant case, the district court
never allowed the witnesses to repeat any of T.H.S.'s out-of-court statements. The
statements were presented, not for the truth of the matter asserted, but merely to show
that the witnesses had conversations with T.H.S. and the witnesses' subsequent
actions.

Espinosa also relies on United States v. Bercier, 506 F.3d 625 (8th Cir. 2007),
for the proposition that the government may not introduce hearsay statements to

-23-
bolster the credibility of the complaining witness. In Bercier, after the defendant was
convicted of aggravated sexual abuse and abusive sexual contact, he appealed, arguing
that the district court abused its discretion in admitting hearsay testimony. Id. at 627.
At trial, after the victim's testimony, the victim's physician testified to exactly what
the victim told her after the assault. Id. at 631. The physician testified that "[the
victim] stated that [the defendant] had—had sexually assaulted her, and she said that
he had gone—gone down on her . . . ." Id. The physician also testified that the victim
said that "[the defendant] started kissing her ear and her breasts and doing gross stuff
and that she—that he started to have oral sex with her. And she pushed him away and
said no, and that he didn't seem to understand that she was saying no." Id. On appeal,
we held that the only purpose for this testimony "was to bolster [the victim's] trial
testimony." Id. at 633. Because the entire case turned on the credibility of the victim,
this bolstering "tipped the scales unfairly." Id. We held, therefore, that the district
court's error in allowing the testimony was not harmless, and we ordered a new trial.
Id. But this case is distinguishable from Bercier because, here, the district court did
not allow the witnesses to repeat the content of what T.H.S. had said. See United
States v. Two Elk, 536 F.3d 890, 900 (8th Cir. 2008) (holding that the testimony was
permissible and did not amount to inadmissable hearsay where the declarant did not
repeat the out-of-court statements but only answered "yes" or "no" to the questions).
Instead, each witness, in response to questions regarding their knowledge of the abuse,
only answered "yes" or "no." The witnesses did not recount the statements that T.H.S.
made to them.

Moreover, Espinosa has not shown that any alleged error that may have
occurred was not harmless. The jury heard testimony from the victim who reported
the abuse immediately. Evidence was presented that T.H.S. suffered an injury to her
genital area, which was consistent with sexual abuse. Therefore, Espinosa has not
shown that any error had more than "a very slight influence on the verdict." Eagle,
498 F.3d at 888. The district court did not abuse its discretion in allowing the
testimony.

-24-
 III. Conclusion
For the foregoing reasons, we affirm Espinosa's conviction on Count IV and
reverse his conviction on Count VII because insufficient evidence exists as to K.H.S.'s
age at the time of the offense conduct. We remand the case for entry of a judgment of
acquittal on Count VII and for further proceedings consistent with this opinion.
______________________________

-25-