United States v. Clifton Waters

194 F.3d 926, 52 Fed. R. Serv. 1574, 1999 U.S. App. LEXIS 24653, 1999 WL 809681

Opinions

ROSS, Circuit Judge.

Clifton Waters appeals his conviction for aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c) and 1153. He asserts that the district court¹ erred in certain evidentiary rulings, in refusing to instruct the jury on a lesser included offense, and in denying his motion for a new trial. We affirm.

BACKGROUND

Before indictment, at the government’s request, Waters took a polygraph examination conducted by a special agent of the Federal Bureau of Investigation (FBI). Among other things, the agent asked Waters whether he had placed his fingers in the child’s vagina or touched her “private areas in a sexual way.” He answered “no” to both questions and the agent believed that the answers were not indicative of deception. In April 1998, a grand jury indicted Waters with one count of aggravated sexual abuse of a child in violation of 18 U.S.C. § 2241(c), which, in relevant part, makes it unlawful for a person to engage in a “sexual act” with a child under the age of 12 in a territorial jurisdiction. “Sexual act” is defined, in relevant part, as “penetration, however slight, of the anal or genital opening of another by a hand or finger” or “intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16” with an improper intent. 18 U.S.C. § 2246(2)(C) and (D).

Before trial, Waters sought to admit the results of the polygraph examination and

requested a Daubert² hearing in order to establish the examination’s scientific reliability. In response, the government moved to exclude all evidence relating to the examination and opposed the request for a Daubert hearing, relying on United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In Scheffer, the Supreme Court held that a per se exclusion of polygraph evidence under Military Rule of Evidence 707 was constitutional. Id. at 305, 118 S.Ct. 1261. The district court conditionally granted the government’s motion to exclude, subject to further ruling at trial.

At the September 1998 trial, the victim, who was then nine years old, testified that in December 1996 Waters took her to a house in Manderson, South Dakota (Indian country), and while they were sitting on a couch, he told her to take off her pants. She further testified that after she took off her underpants, Waters touched her “butt” and her “middle,” which she described as the place “you go to the bathroom,” with his hands. She also testified Waters had touched her “in my private places” and had done the “same thing” to her at her house.

On cross-examination, Waters’ counsel asked the victim about prior statements she had given to an FBI agent. The victim testified that she had met with the agent several times and first told the agent that Waters had touched her “private areas over the top of [her] clothing,” but on another occasion told the agent that Waters had put his “entire” hand inside her, and yet on another occasion said he had put three fingers “up inside” of her. The victim also admitted that she had not told the agent about the touching incident at her house. On redirect examination, the victim explained that she did not tell the agent everything because she was scared.

re-cross counsel asked the victim “you didn’t tell the truth when you told [the agent] that [Waters] touched you over the top of your jeans, did you?” She said “no.” She also said “no” when counsel asked “[y]ou didn’t tell the truth when you told [the agent] that there was another incident where he put three fingers into you, did you?” However, she answered “yes” when counsel asked “you didn’t [tell] the truth when you told [the agent] that he put his whole hand up inside of you, did you?” Counsel then asked “[y]ou did tell the truth then?” She replied “no.”

The government also presented the testimony of a pediatrician, who had examined the victim in October and December 1997. The pediatrician testified that the victim had no hymenal tissue, which was highly unusual in a child of that age and was consistent with repeated penetration of the vagina.

Waters testified in his defense. After he denied he had touched the victim in a sexual way either over or under her clothes, his counsel renewed the request for a Daubert hearing regarding admissibility of the polygraph examination. However, he admitted he had no evidence concerning the reliability of the test. Although the district court observed that in Scheffer, 523 U.S. at 309, 118 S.Ct. 1261, the Supreme Court noted the lack of scientific consensus on the reliability of polygraph examinations, the court held that it would “simply” exclude any evidence relating to the polygraph examination under Fed.R.Evid. 403.

In rebuttal, the government presented the testimony of a clinical social worker who specialized in child sexual abuse. The social worker testified that children “rarely tell you everything about an abuse the first time they are asked” and the “more information may come over a period of time.” She also testified that children often leave out details of abuse because they are embarrassed.

At the conference on jury instructions, Waters withdrew previously submitted proposed instructions and handed the court a second set of proposed instructions, including an instruction on the lesser included offense of abusive sexual contact under 18 U.S.C. § 2244(a), which, as relevant here, requires evidence of “intentional touching, either directly or through the clothing, of the genitalia, anus, ... or buttocks” of another person with an improper purpose. 18 U.S.C. § 2246(3). The court “invited counsel to outline the fact scenario” that would permit the jury to find Waters guilty of abusive sexual contact, yet acquit him of aggravated sexual abuse. Waters’ counsel argued if the jury believed “the direct testimony from the alleged victim,” it could find no evidence of “penetration of any kind” and could only return a verdict on abusive sexual contact. The government disagreed, noting that the victim testified Waters had touched her unclothed “middle” and that the jury could also consider the pediatrician’s testimony of an injury consistent with penetration. The court agreed with the government and denied Waters’ request, noting he had professed complete innocence. Waters’ counsel again objected, asserting based bn the victim’s “testimony on direct examination” there was no evidence of aggravated sexual abuse. The court then asked if he was moving for a judgment of acquittal. Counsel indicated he was, and the court denied the motion.

About two months after the jury returned a guilty verdict, Waters filed a motion for a new trial based on newly discovered evidence, relying on a sworn statement in which the victim recanted her testimony that Waters had touched her. The court denied the motion, finding that in the circumstances of the case the recantation was not credible.

DISCUSSION

Waters first argues that the district court erred in denying his request for a Daubert hearing. He concedes he has no evidence which establishes the reliability of polygraph examinations, but argues his ability to gather the necessary evidence was hampered by the government’s failure to comply with his discovery requests. We need not address any Daubert or discovery issues. The district court independently excluded the evidence under FecLR.Evid. 403, which provides for exclusion of evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time....” Here, the court stated it would not admit the evidence because it would go to a collateral matter and cause confusion as to the weight of the evidence. The court did not abuse its discretion. In Scheffer, the Supreme Court noted the legitimate “risk that juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise.” 523 U.S. at 313-14, 118 S.Ct. 1261. The Court also noted that “litigation over the admissibility of polygraph evidence is by its very nature collateral,” id. at 314-15, 118 S.Ct. 1261, thereby “prolonging] criminal trials and threatening] to distract the jury from its central function of determining guilt or innocence.” Id. at 315, 118 S.Ct. 1261.

Nor, contrary to Waters’ argument, did the court err. in refusing to admit evidence of his responses to the examination. His reliance on Rothgeb v. United States, 789 F.2d 647 (8th Cir.1986) is misplaced. In Rothgeb, although the results of a polygraph examination were inadmissible, this court held that a district court had not abused its discretion in allowing the government, which did not mention the polygraph examination, to introduce evidence that during an interrogation the defendant had denied committing the charged offense, but held his breath, “pantfed] like a dog” and “sweated profusely during the questioning.” Id. at 651. Rothgeb did not, and could not, overrule the rules of evidence. Fed.R.Evid. 801(d)(2) provides that an out-of-court statement offered “against a party” is not hearsay. In contrast here, Waters, not the government, sought to introduce “a prior statement consistent with his plea of not guilty.” United States v. Greene, 995 F.2d 793, 798 (8th Cir.1993). “Such statements, when offered by the defendant, are hearsay, except in narrow circumstances not present here.” Id.; see also United States v. Chard, 115 F.3d 631, 635 (8th Cir.1997) (defendant’s attempt to introduce out-of-court exculpatory statements properly excluded as hearsay).

Waters also argues the district court abused its discretion in admitting the social worker’s testimony, asserting she improperly “opine[d] as to a child witness’s credibility.” United States v. Rouse, 111 F.3d 561, 571 (8th Cir.), cert denied, — U.S. -, 118 S.Ct. 261, 139 L.Ed.2d 188 (1997). We disagree. The social worker “never gave [her] opinion as to whether [the victim] was telling the truth.” United States v. Running Horse, 175 F.3d 635, 638 (8th Cir.1999). Rather, she merely “ ‘inform[ed] the jury of characteristics in sexually abused children.’” Id. (quoting United States v. Whitted, 11 F.3d 782, 785 (8th Cir.1993)); see also United States v. Johns, 15 F.3d 740, 743 (8th Cir.1994) (psychologist’s testimony properly admitted because it “was circumscribed so as to educate rather than to usurp the role of the jury”). Although on appeal Waters suggests that the testimony did not meet the Daubert standard for reliability,³ because he did not raise this argument in the district court, we do not consider it.

We next address Waters’ argument that the district court erred in refusing his request for a lesser included offense instruction. A “ ‘prerequisite for a lesser included offense instruction [is] that the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.’ ” United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir.1991) (per curiam) (quoting Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), cert. denied, 502 U.S. 1065, 112 S.Ct. 953, 117 L.Ed.2d 121 (1992)). In this case, “[i]t is undisputed that abusive sexual contact is a lesser included offense of aggravated sexual abuse.” Id. (citing United States v. Demandas, 876 F.2d 674, 676 (8th Cir.1989)). However, it is disputed whether “there is some evidence which would justify conviction of the lesser offense.” United States v. Parker, 32 F.3d 395, 400-01 (8th Cir.1994) (emphasis and internal quotation omitted).

On appeal Waters primarily argues there is evidence to support a conviction of abusive sexual contact based on the victims’s testimony on cross-examination that she had told an FBI agent that Waters touched her over her clothing. We do not believe Waters has properly preserved this argument for appeal. “We have repeatedly held that an objection ‘must call attention to the specific fact situation that would require giving the lesser included offense instruction.’” United States v. Oakie, 12 F.3d 1436, 1442 (8th Cir.1993) (quoting United States v. Young, 875 F.2d 1357, 1360 (8th Cir.1989)). On the day of the jury conference Waters filed a memorandum in support of his request for a lesser included offense instruction which relied on the victim’s testimony on cross-examination. However, when the district court asked counsel to set forth the evidence warranting the instruction, counsel based his argument solely on the victim’s direct examination. “Because [Waters] failed to give the district court an opportunity to rule on th[e] theory [raised on appeal], we may only consider it under the plain error standard.” Id.

In any event, we find no error, much less plain error. Waters offered the victim’s testimony concerning her prior statement that he had touched her over her clothes only for impeachment purposes, not as substantive evidence for the truth of the matter asserted. Indeed, the court instructed the jury that “[t]he credibility of a witness may be attacked by introducing evidence that on some former occasion the witness made a statement on a matter of fact or acted in a manner inconsistent with his or her • testimony,” but cautioned the jury it “must not consider any such prior statement as establishing the truth of any fact contained in that statement.” At oral argument before this court, Waters suggested that the prior statement could be considered as substantive evidence because on re-cross examination, he asked the victim if the statement was true. We disagree. Waters’ closing argument to the jury makes clear that he was not asking the victim to adopt the statement as true, but shows quite the opposite. Waters argued that the victim was not credible because “she admitted to you in her testimony that she had lied about what she had told the FBI agent in the past.” In particular, counsel pointed out that the victim “said she had lied to the agent about [Waters] touching her over her clothing.”

Waters also argues, as he did in the district court, that there was evidence to support an instruction on abusive sexual contact based on the victim’s direct examination, relying on her testimony that Waters had touched her “butt.” We disagree. As the direct court found, this testimony was isolated and when considered in the context of all the evidence, including the victim’s testimony that in addition to touching her “butt,” Waters had touched her “in [her] private places,” and the doctor’s testimony, we do not believe a rational jury could find the that all Waters did was touch the victim’s buttocks. See United States v. Harrison, 55 F.3d 163, 167 (5th Cir.) (“This testimony, when considered in isolation, arguably might support a lesser-included offense instruction ... but, when considered in the context of the other evidence, it does not.”), cert. denied, 516 U.S. 924, 116 S.Ct. 324, 133 L.Ed.2d 225 (1995). This court has “never held ... that a defense [instruction] must be submitted to the jury even when it cannot be said that a reasonable person might conclude the evidence supports the defendant’s position.” United States v. Kabat, 797 F.2d 580, 591 (8th Cir.1986) (internal quotation omitted), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987). “ ‘[W]hile a judge cannot prevent a jury from rejecting the prosecution’s entire case, he [or she] is not obligated to assist the jury in coming to an irrational conclusion of partial acceptance and partial rejection of the prosecutor’s case.’” United States v. Mansaw, 714 F.2d 785, 792 (8th Cir.) (quoting United States v... Cady, 495 F.2d 742, 748 (8th Cir.1974)), cert, denied, 464 U.S. 964, 104 S.Ct. 403, 78 L.Ed.2d 343 (1983).⁴

Last, Waters argues the district court abused its discretion in denying his motion for a new trial based on the victim’s recantation. “Courts look upon recantations with suspicion.” United States v.. Miner, 131 F.3d 1271, 1273 (8th Cir.1997). Moreover, “skepticism about recantations is especially applicable in cases of child sexual abuse where recantation is a recurring phenomenon....’” Id. (quoting United States v. Provost, 969 F.2d 617, 621 (8th Cir.1992), cert. denied, 506 U.S. 1056, 113 S.Ct. 986, 122 L.Ed.2d 139 (1993)). Here, the district court carefully considered all the circumstances of the case in concluding the recantation was not credible, and we will not reverse its decision.

CONCLUSION

Accordingly, we affirm the judgment.

1 . The Honorable Richard H. Battey, Senior Judge, United States District Court for the District of South Dakota.

2 . In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court held that "[f]aced with a proffer of expert scientific testimony,” a district court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”

3 . We note in Kumho Tire Co. v. Carmichael, - U.S. -, -, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999), the Supreme Court extended Daubert to "testimony based on ‘technical’ and 'other specialized' knowledge."

4 . Waters points out that a defendant's claim of innocence does not necessarily preclude the giving of a lesser included offense instruction, as long as there is evidence to support the instruction. United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir.1991). Contrary to Waters’ argument, this case is unlike Plenty Arrows. In Plenty Arrows, this court held the victim’s testimony that the defendant had "touched him on the 'back' of [his] behind’ ” was insufficient evidence of aggravated sexual abuse, but was sufficient evidence of abusive sexual contact. Id. at 67. Here, although we believe there was sufficient evidence of penetration of the victim’s vagina, the victim’s testimony that after she took off her underpants Waters touched her "in [her] private places” and touched her "middle” where "you go to the bathroom” was "sufficient to establish that she was the victim of a ‘sexual act’ which the statute defines as intentional touching of the unclothed genitalia.” United States v. Eagle, 137 F.3d 1011, 1014 (8th Cir.1998). Rather, this case is similar to United States v. Two Bulls, 940 F.2d 380 (8th Cir.1991), cert. denied, 502 U.S. 1065, 112 S.Ct. 953, 117 L.Ed.2d 121 (1992), in which this court held that the district court did not err in refusing to give a lesser included offense instruction on abusive sexual contact. In that case, the victim's testimony established aggravated sexual abuse and because the defendant had “professed complete innocence ... his testimony could not support a conviction on any offense.” Id. at 382.