Appeal from the United States District Court for the District of North Dakota.
The opinion of the court was delivered by: Gruender, Circuit Judge.
Submitted: October 22, 2009
Before RILEY, SMITH and GRUENDER, Circuit Judges.
After a jury trial, Peter James Smith was convicted of two counts of aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153 and 2241(c). Smith appeals, arguing that the district court*fn1 erred by admitting a 40-minute DVD recording of a forensic interview of the child victim and by admitting the lay opinion testimony of the forensic interviewer under Federal Rule of Evidence 701. For the following reasons, we affirm.
In December 2006, Smith and his girlfriend, Priscilla Bear, babysat B.R., then eight years old, at B.R.'s home. Immediately thereafter, B.R. began having nightmares. During the nightmares, B.R. would yell not to touch her. Approximately one month later, B.R. told her mother that Smith had touched her inappropriately when he babysat her. On April 5, 2007, B.R.'s mother reported to Bureau of Indian Affairs Criminal Investigator Donovan Wind that Smith had sexually abused B.R. Investigator Wind contacted a Federal Bureau of Investigation ("FBI") agent who arranged for B.R. to be interviewed by forensic examiner Karen Seviour of the Red River Child Advocacy Center.
On April 10, 2007, Seviour conducted a forensic interview of B.R. B.R. told Seviour that Smith placed his fingers in her vagina on one occasion and that he touched her vaginal area over her clothing on an earlier occasion. Seviour recorded the interview on a DVD.
On January 9, 2008, Investigator Wind and FBI Special Agent Michael Thompson interviewed Smith about the allegations. Smith admitted that he knew B.R. but denied any sexual contact with her. On January 24, 2008, Smith voluntarily met with Special Agent Thompson and FBI Special Agent Kelly Kenser for a second interview. Smith initially denied any sexual contact with B.R., but as the interview progressed Smith admitted that there were two incidents in which his fingers penetrated B.R.'s vagina. The first incident occurred at B.R.'s grandmother's home around Halloween of 2006. Smith claimed that he woke up and found that B.R. had taken his hand and inserted one of his fingers, up to his first knuckle, into her vagina. He did not report the incident to anyone because it "slipped his mind." The second incident occurred on December 26, 2006. Smith claimed that he fell asleep on the toilet and woke up because B.R. had inserted two of his fingers, up to the first knuckle, into her vagina. Smith did not report this incident either.
Smith was charged with two counts of aggravated sexual abuse of a child, in violation of 18 U.S.C. § § 2241(c) and 1153, and one count of abusive sexual contact, in violation of 18 U.S.C. § § 2244(a)(5) and 1153.*fn2 Prior to trial, Smith filed a motion in limine seeking to prohibit the Government from introducing the DVD of B.R.'s forensic interview on the basis that the DVD contained hearsay. The Government responded, arguing that the DVD was admissible under Federal Rule of Evidence 807 and this court's decision in United States v. Thunder Horse, 370 F.3d 745 (8th Cir. 2004). During the final pretrial conference, the district court decided to reserve ruling on the admissibility of the DVD until trial.
At trial, B.R. testified that Smith touched her vagina underneath her clothes on two occasions. The first incident occurred at B.R.'s grandmother's home. While B.R. sat on a bed in the basement, Smith touched her inside her vagina. The second incident occurred when Smith entered B.R.'s bedroom while B.R. was sleeping. B.R. testified that Smith again penetrated her vagina with his fingers. Smith left the room, and B.R. placed suitcases in front of her door to keep Smith from entering again.
Bear testified that she and Smith babysat B.R. at B.R.'s home in December 2006. When Bear saw Smith walking toward B.R.'s bedroom, she asked him what he was doing. Smith then left the home, and Bear went to check on B.R. When Bear reached B.R.'s room, she was unable to open the door because there was luggage in front of the door.
During the defense case, Smith's counsel called Seviour as a witness for the purpose of establishing an apparent inconsistency in B.R.'s testimony and advancing Smith's theory that B.R.'s account of the incidents was the product of influence from her mother and Bear. Seviour testified that, during her forensic interview, B.R. said that Smith touched her once inside her vagina and once in the vaginal area over her clothing. During the Government's cross-examination of Seviour, it sought to introduce the DVD recording of the entire forensic interview. Noting Smith's previous objections to the admission of the DVD, the district court overruled the objections, stating, "I believe that in chambers there [was] an adequate discussion of the constitutional issues, of the beyond-the-scope issues and of the Rule 807 issues." The Government then played the DVD for the jury.
During the Government's cross-examination of Seviour, it also sought to question Seviour about the apparent inconsistency between B.R.'s forensic interview and her testimony at trial. Smith objected on the basis that the question called for expert testimony under Federal Rule of Evidence 702. The parties and the district court discussed the permissible scope of Seviour's testimony, and the district court ruled that Seviour could give her lay opinion based on her experience but not based on research and studies she might have performed for the case. The Government then asked Seviour, "Yesterday [B.R.] testified that [Smith] inserted his finger inside her vagina on two occasions, not just one occasion. In your experience is that an inconsistent statement?" Seviour responded:
In my experience I would not consider it an inconsistent statement and the reason that I wouldn't is kids make disclosures over a period of time. And so when a child comes in and does an interview with me and they do not make a disclosure I may only get a tiny part of it. And then as they are able to mature a little bit if they receive counseling in a supportive environment more ...