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United States v. Kootswatewa

United States Court of Appeals, Ninth Circuit

March 23, 2018

United States of America, Plaintiff-Appellee,
v.
Theodore Kootswatewa, Defendant-Appellant.

          Argued and Submitted September 13, 2017 San Francisco, California

          Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding D.C. No. 3:15-cr-08034-DLR-1

          Michael L. Burke (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellant.

          Helen H. Hong (argued), Special Attorney for the United States, Office of the United States Attorney, San Diego, California, for Plaintiff-Appellee.

          Before: J. Clifford Wallace and Paul J. Watford, Circuit Judges, and W. Louis Sands, [*] District Judge.

         SUMMARY [**]

         Criminal Law

         The panel affirmed a conviction for sexually abusing K.C., a developmentally delayed 11-year-old girl.

         The panel held that the district court properly exercised its discretion in admitting under Fed.R.Evid. 803(4) K.C.'s statements to a nurse practitioner concerning the nature of the abuse and the identity of her abuser. The panel observed that the statements were made for purposes of medical diagnosis or treatment, were reasonably pertinent to that subject, and described the inception or general cause of K.C.'s past or present symptoms. Rejecting the defendant's contention that the government failed to lay an adequate foundation, the panel held that the government presented ample evidence establishing that a reasonable person in K.C.'s situation would have understood that the nurse practitioner was seeking information for purposes of diagnosis or treatment.

         The panel held that the district court properly exercised its discretion in admitting under Fed.R.Evid. 801(d)(1)(B)(i) K.C.'s statements to a law enforcement officer in order to rebut defense counsel's suggestion that K.C.'s in-court testimony had been tainted by her mother's alleged coaching. The panel held that K.C.'s prior statements to the officer were consistent with her in-court testimony, as required under Rule 801(d)(1)(B).

         The panel held that the prosecutor's brief and accurate recitation of trial testimony concerning what K.C. told others about the offense did not constitute misconduct. The panel concluded that the prosecutor's misstatement of the record-that K.C. told the officer that the defendant had "lured" her into a trailer rather than "took" her into the trailer-amounted to harmless error.

          OPINION

          WATFORD, CIRCUIT JUDGE.

         Theodore Kootswatewa was convicted following a jury trial of sexually abusing K.C., a developmentally delayed 11-year-old girl. On appeal, Kootswatewa challenges two of the district court's evidentiary rulings. Over Kootswatewa's hearsay objections, the court allowed a nurse practitioner and a law enforcement officer to testify about statements K.C. made to them during interviews conducted shortly after the abuse occurred. We conclude that the district court properly exercised its discretion in admitting the testimony of both ...


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