                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 26 2000
                                TENTH CIRCUIT
                           __________________________                PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 99-2363
                                                        (D. N.M.)
 RICHARD KING, JR.,                             (D.Ct. No. CR-98-933-MV)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and BRORBY, Circuit Judges.
                    _____________________


      Richard King, Jr. appeals his convictions on two counts of sexual abuse of

a minor in violation of 18 U.S.C. § 2243(a), by means of oral and anal copulation

as defined in 18 U.S.C. § 2246(2)(A) and (B). 1 The district court had jurisdiction

      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      1
        18 U.S.C. § 2243(a) criminalizes the sexual abuse of a minor, and
provides:

      Whoever, in the special maritime and territorial jurisdiction of the United
      States or in a Federal prison, knowingly engages in a sexual act with
      another person who –
             (1) has attained the age of 12 years but has not attained the age
in this case under 18 U.S.C. § 3231. We exercise jurisdiction under 28 U.S.C. §

1291, and affirm.




      of 16 years; and
             (2) is at least four years younger than the person so engaging;
      or attempts to do so, shall be fined under this title, imprisoned not
      more than 15 years, or both.

The definition section of the sexual abuse chapter of the United States Code is
found at 18 U.S.C. § 2246. The term “sexual act” is defined as:

      (A) contact between the penis and the vulva or the penis and the
      anus, and for purposes of this subparagraph contact involving the
      penis occurs upon penetration, however, slight;
      (B) contact between the mouth and the penis, the mouth and the
      vulva, or the mouth and the anus.

18 U.S.C. § 2246(2)(A), (B).

      These provisions were applicable to Mr. King pursuant to 18 U.S.C.
§ 1153(a), which provides:

       Any Indian who commits against the person or property of another
       Indian or other person ... an assault against an individual who has
       not attained the age of 16 years, ... within the Indian country, shall
       be subject to the same law and penalties as all other persons
       committing any of the above offenses, within the exclusive
       jurisdiction of the United States.
       ...


                                          2
I.    BACKGROUND

      The events at issue in this case occurred on the Navajo Reservation in New

Mexico. Mr. King and the victim, Michael W., are residents of Shiprock, New

Mexico, which is located on the Navajo Reservation, and both are members of the

Navajo Nation. Michael has a learning disability for which his family receives

Social Security benefits. At the time of the incident that forms the basis of Mr.

King’s convictions, Michael was fifteen years old and Mr. King was twenty-five

years old.



      Michael considers Mr. King his uncle. In actuality, Michael’s mother was

once married to Mr. King’s brother, who is now involved in a relationship with

Michael’s sister. Michael lives with his mother and one of his brothers in one of

five homes located in close proximity to one another and occupied by Michael’s

extended family. Michael and Mr. King grew up together in this extended family

compound. Although Mr. King did not live in the compound at the time of the

assault, his mother’s trailer was parked just across from Michael’s trailer home,

and Mr. King spent a considerable amount of time in the compound area. This

family compound became the site of a family tragedy. The testimony presented at

trial is briefly summarized as follows.




                                          3
      Michael was drinking beer with some friends late in the afternoon of

October 23, 1998. At about 5:30 p.m., Michael returned to his home to change

clothes and pick up a radio. No one else was home. Shortly after Michael arrived

at his home, Mr. King entered the trailer without knocking, as was frequently his

practice. Michael testified Mr. King approached him, and asked Michael if he

wanted to have sex. Mr. King then pulled off his pants and underwear and asked

Michael to do the same. Michael complied with this request, and Mr. King then

made Michael bend over and pushed his penis into Michael’s anus. Michael got

scared, pulled up his pants and left the home. Michael then went back to his

friends and told them Mr. King had raped him. Michael drank more beer and

passed out in the back of his friend’s truck.



      Michael’s mother was expecting Michael to meet her at 11:30 p.m. that

night when she finished her shift at a restaurant. When Michael did not show up,

she became concerned and went looking for him, eventually finding him around

midnight. She assisted Michael out of the truck and drove him home. When they

got home, Michael started fighting with his brother. After his mother interceded

and stopped the fight, and the older son left the room, Michael told her Mr. King

had tried to rape him.




                                          4
      Michael’s mother took him to the emergency room where Patricia Smith,

the emergency room nurse, interviewed him. Michael was still intoxicated when

he arrived at the hospital. Nurse Smith recorded Michael’s statement in her

report as follows: “My uncle, Richard King tried to rape me. He took my clothes

off. He wanted me to suck his dick. He tried to put it in. I don’t know how my

lip got hurt.” Michael repeated these accusations to Dr. Water, the doctor who

examined him in the emergency room. Dr. Water discovered physical evidence of

anal penetration and noted Michael’s throat was swollen, red, irritated, and there

was some white mucus-like material at the back of his throat. However, no semen

was found in his throat. Dr. Water testified Michael tried to induce vomiting

while in the emergency room by putting his finger down his throat. Although the

redness and irritation of Michael’s throat could have been caused by this attempt

to induce vomiting, Dr. Water testified this behavior was consistent with someone

who has been forced to perform oral copulation. Dr. Water also testified Michael

told her the injuries to his face occurred while he was being “forced.” Both Dr.

Water and Nurse Smith testified Michael was upset and angry while he was in the

hospital.



      Michael was discharged from the hospital at 4:00 a.m. At trial, Michael

could not remember what he had said to the hospital personnel concerning the


                                         5
oral copulation. He stated that after drinking the second quart of beer, he blacked

out and could not remember what he told his mother, brother and sister when he

got home. Michael also testified concerning a prior encounter between Mr. King

and Michael when Mr. King propositioned Michael for oral sex.



      The jury acquitted Mr. King of the counts alleging aggravated sexual abuse

(Counts I and II), but convicted him of two counts of sexual abuse of a minor in

violation of 18 U.S.C. § 2243(a), by means of anal penetration (Count III, 18

U.S.C. § 2246(2)(A)) and oral copulation (Count IV, 18 U.S.C. § 2246(2)(B)).

Mr. King filed a timely appeal. On appeal, Mr. King asserts the evidence was

insufficient to convict him of Count IV, sexual abuse of a minor through oral

copulation, and thus the district court erred by denying his motion for judgment of

acquittal. Mr. King also contends the trial court erred by allowing Michael’s

mother to testify concerning Michael’s statement to her accusing Mr. King of

rape, by allowing Dr. Water and Nurse Smith to testify concerning Michael’s

statements to them in the emergency room, and by allowing Michael to testify

about the prior incident when Mr. King asked Michael for sex.




                                         6
II    DISCUSSION

      A.     Sufficiency of the Evidence

      We first address Mr. King’s argument concerning the sufficiency of the

evidence to sustain his conviction for sexual abuse of a minor by means of oral

copulation, and the district court’s denial of his motion for judgment of acquittal.

      Sufficiency of the evidence to support a jury’s verdict is a legal issue
      that is reviewed de novo. On appeal, we ask only whether taking the
      evidence – both direct and circumstantial, together with the
      reasonable inferences to be drawn therefrom – in the light most
      favorable to the government, a reasonable jury could find the
      defendant guilty beyond a reasonable doubt. In conducting this
      review we may neither weigh conflicting evidence nor consider the
      credibility of witnesses. It is for the jury, as the fact finder, to
      resolve conflicting testimony, weigh the evidence and draw
      inferences from the facts presented. When reviewing the denial of a
      motion for judgment of acquittal based on insufficient evidence, this
      court conducts the same analysis, reviewing the judgment of the
      district court de novo.

United States v. Jackson, 213 F. 3d 1269, 1283 (10th Cir. 2000) (quotation marks

and citations omitted).



      In concluding the evidence was sufficient for the jury to find Mr. King

engaged in oral copulation with Michael, the district court noted Michael’s throat

was irritated when he was examined at the hospital on the night in question. The

district court also pointed out Michael told the examining physician and nurse Mr.

King forced him to engage in oral copulation. The district court concluded this


                                           7
evidence, “as well as the other evidence presented at trial, [was] sufficient to

allow a reasonable jury to conclude, beyond a reasonable doubt, that [Mr. King]

had engaged in ... oral copulation with [Michael].” We agree.



      In arguing the evidence on this count was insufficient, Mr. King focuses on

the fact Michael did not mention oral sex during his trial testimony. He asserts

the medical evidence was inconclusive and argues Michael’s statements to

medical personnel were unreliable because he was so intoxicated at the time he

made them. He also asserts the physical evidence was inconclusive. However,

Mr. King had the opportunity to cross-examine the medical personnel concerning

Michael’s level of intoxication at the time Michael made his accusations

concerning oral sex. It was for the jury to decide whether Michael’s statements at

the hospital were worthy of credence. Mr. King likewise was able to cross-

examine Dr. Water concerning the physical evidence of oral copulation. Although

the physical evidence did not conclusively prove Michael had engaged in oral sex,

Dr. Water did not rule out the possibility these injuries were due to oral

copulation. Furthermore, we do not consider Michael’s failure to testify

concerning oral copulation to be fatal to the government’s case. Cf. United States

v. Beers, 189 F.3d 1297, 1301-02 (10th Cir. 1999) (holding there was sufficient

evidence to sustain a conviction of kidnaping where the child victim was not


                                          8
called to testify concerning his willingness to go with the defendant, but the

testimony of other witnesses indicated the victim was unwilling to accompany the

defendant), cert. denied, 120 S. Ct. 1696 (2000). Viewing the evidence in the

light most favorable to the government, we conclude the evidence was sufficient

to support the jury’s verdict.



      B.      Evidentiary Issues

      Mr. King contends the district court erred by admitting Michael’s out-of-

court statements to his mother and to medical personnel, and Michael’s testimony

concerning a prior incident when Mr. King asked Michael for oral sex. “We

review the admission of evidence at trial for abuse of discretion.” United States

v. McHorse, 179 F.3d 889, 901 (10th Cir.), cert. denied, 120 S. Ct. 358 (1999).

“Because hearsay determinations are particularly fact and case specific,” our

review of those decisions is especially deferential. United States v. Trujillo, 136

F.3d 1388, 1395 (10th Cir.), cert. denied, 525 U.S. 833 (1998). Nevertheless,

when evaluating the district court’s interpretation of the rules of evidence, we

exercise de novo review. United States v. Guardia, 135 F.3d 1326, 1328 (10th

Cir. 1998).




                                          9
             1.    Admission of Statements Made to Victim’s Mother

      Mr. King contends the district court violated his Sixth Amendment right to

confront the witnesses against him by allowing Michael’s mother to testify

concerning Michael’s out-of-court statement accusing Mr. King of attempted

rape. The district court admitted the testimony pursuant to Federal Rule of

Evidence 803(2), the exception to the hearsay rule for “excited utterances.” The

“admission of a hearsay statement does not violate the [Sixth Amendment]

Confrontation Clause ‘if it bears adequate “indicia of reliability.”’” Paxton v.

Ward, 199 F.3d 1197, 1207 (10th Cir. 1999) (quoting Ohio v. Roberts, 448 U.S.

56, 66 (1980)). “‘Reliability can be inferred without more in a case where the

evidence falls within a firmly rooted hearsay exception.’” Id. (quoting Roberts,

448 U.S. at 66). See also United States v. Gomez, 191 F.3d 1214, 1220 (10th Cir.

1999) (“Hearsay statements are deemed sufficiently reliable to allow their

admission without the benefit of cross-examination when the statements (1)

‘fall[] within a firmly rooted hearsay exception,’ or (2) contain ‘adequate indicia

of reliability.’” (Quoting Roberts, 448 U.S. at 66)). The Federal Rules of

Evidence provide such a firmly rooted exception to the hearsay rule for an

“excited utterance,” defined as “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by

the event or condition.” Fed. R. Evid. 803(2). See also White v. Illinois, 502


                                         10
U.S. 346, 356 & n.8 (1992); Paxton, 199 F.3d at 1207. Therefore, if the district

court correctly categorized Michael’s statement as an excited utterance, Mr.

King’s Sixth Amendment right to confrontation was not violated. We now turn to

our analysis of whether the district court correctly determined this statement

qualified as an excited utterance.



      Mr. King contends Michael’s statement to his mother does not qualify as an

“excited utterance” under Rule 803(2) because Michael had ample time for

reflection before he made the statement, and by the time he made the statement

the stress of the assault had dissipated. In support of this argument, Mr. King

points out that after the incident at his house, Michael went back to his friends,

continued drinking, passed out for at least an hour, and seven hours passed before

he told his mother Mr. King had tried to rape him.



      In denying Mr. King’s motion in limine to exclude the statement, the

district court reasoned Michael’s statement to his mother qualified as an excited

utterance because, despite the delay between the incident and the statement,

Michael “was still under the influence of the excitement from the event.” In

support of this conclusion, the district court cited Michael’s testimony at the

hearing on the motion in limine, his age, the fact he made the statement upon his


                                          11
first contact with his mother after the incident occurred, and the fact he made the

statement after consuming alcohol when “one might have expected the effect of

alcohol to cause him to not discuss it.” In its memorandum opinion denying Mr.

King’s motions for judgment of acquittal and for a new trial, the district court

repeated these reasons for allowing the statement, and in addition cited Michael’s

agitated state, Michael’s limited mental abilities, and the startling nature of the

event.



         We find no fault with the reasoning of the district court, and conclude it did

not err by determining Michael’s statement was made while he was still under the

stress of the incident. Although there was a lapse of time between the incident

and Michael’s statement to his mother, this does not dispose of the issue. See

United States v. Farley, 992 F.2d 1122, 1123, 1126 (10th Cir. 1993) (noting a

statement by a young child made the day following molestation could have been

admitted as an excited utterance where the child was described as frightened and

on the verge of tears at the time of the disclosure); see also United States v.

Rivera, 43 F.3d 1291, 1296 (9th Cir. 1995) (holding a statement made a half hour

after an assault occurred qualified as an excited utterance and stating “[r]ather

than focusing solely on the time a statement was made, we consider other factors,

including the age of the declarant, the characteristics of the event and the subject


                                            12
matter of the statements.”); United States v. Iron Shell, 633 F.2d 77, 85-86 (8th

Cir. 1980) (holding the amount of time between the startling event and the

statement is only one factor to be weighed by the court in determining whether the

excited utterance exception to the hearsay rule applies), cert. denied, 450 U.S.

1001 (1981). Rule 803(2) rests on the theory the agitated mind is much less likely

to engage in conscious fabrication than is the reflective mind. See Fed. R. Evid.

803(2) advisory committee’s note; see also Paxton, 199 F.3d at 1209 (quoting

Idaho v. Wright, 497 U.S. 805, 820 (1990)). There is no precise amount of time

between the event and the statement beyond which the statement cannot qualify as

an excited utterance. “[T]he standard of measurement is the duration of the state

of excitement.” Fed. R. Evid. 803(2) advisory committee’s note. “[T]he

character of the transaction or event will largely determine the significance of the

time factor.” Id. Thus, in deciding whether a statement qualifies as an excited

utterance, the court may take into account the nature of the stressful event, the

age of the declarant, and other factors indicating the declarant was still under the

stress of the incident when he or she made the statement. See Farley, 992 F.2d at

1126; see also Rivera, 43 F.3d at 1296.



      In this case, the trauma was severe. Michael was sodomized by his uncle.

It is reasonable to believe the stress of this event could last several hours, and the


                                          13
record supports the court’s finding that it did. Several witnesses testified Michael

was agitated for hours after the event. Although Michael continued drinking and

passed out for one hour after the incident, it is reasonable to assume a person

might drink to the point of passing out after such a traumatic event, and wake up

still upset and agitated. Moreover, during the time he was intoxicated, it is

unlikely Michael was engaging in conscious fabrication. While he was passed

out, Michael was certainly not reflecting upon the incident. Furthermore, we

conclude the district court did not err by taking into account Michael’s age and

limited mental abilities. It is proper for a court to consider the age of the

declarant when determining whether a statement qualifies as an excited utterance

under Rule 803(2). See Farley, 992 F.2d at 1126; see also Rivera, 43 F.3d at

1296; Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir. 1988); Iron Shell, 633 F.2d

at 86. Although Michael was older than many child sexual abuse victims, he was

still only fifteen years old at the time of the assault. See Rivera, 43 F.3d at 1296

(holding the fifteen-year-old rape victim’s statement to her mother one-half hour

after the rape occurred qualified as an excited utterance, and taking into

consideration the age of the victim). In addition, Michael has a learning

disability. Because the district court had an opportunity to observe Michael as he

testified at the hearing on the motion in limine and at trial, we defer to the court’s

assessment of Michael’s mental abilities. We conclude the court did not err by


                                          14
comparing the present case, involving a fifteen-year-old with a learning disability,

to those cases extending the permissible length of time between the incident and

the statement when the declarant is a young child.



      Even though Michael made the statement hours after the assault, we

conclude the district court did not err by determining Michael was still under the

stress of the event when he told his mother Mr. King had tried to rape him.

Therefore, the district court properly determined the statement was an excited

utterance as defined by Rule 803(2). Because Rule 803(2) codifies a firmly

rooted exception to the hearsay rule, we infer its trustworthiness and conclude Mr.

King’s rights under the Sixth Amendment were not violated by the admission of

Michael’s out-of-court statement to his mother. Furthermore, counsel was able to

cross-examine Michael concerning his statement to his mother. Thus, there was

no violation of Mr. King’s right to confrontation under the Sixth Amendment.

See United States v. Owens, 484 U.S. 554, 560 (1988); McHorse, 179 F.3d at

900; Carson v. Collins, 993 F.2d 461, 464 (5th Cir.), cert. denied, 510 U.S. 897

(1993).



             2.    Admission of Statements Made to Medical Personnel

      Mr. King similarly contends the district court erred by allowing Dr. Water


                                         15
and Nurse Smith to testify concerning Michael’s statements identifying Mr. King

as his assailant. Mr. King argues the court erred by admitting these statements

under the exception to the hearsay rule set forth in Federal Rule of Evidence

803(4), and also asserts this violated his Sixth Amendment right to confront the

witnesses against him. As stated in the previous section, Mr. King’s rights under

the Sixth Amendment were not violated by admitting this testimony because

Michael testified at trial and defense counsel had an opportunity to cross-examine

him concerning all the out-of-court statements at issue. See McHorse, 179 F.3d at

900. Furthermore, Rule 803(4) codifies a firmly rooted exception to the hearsay

rule. Thus, evidence properly admitted under this exception carries sufficient

indicia of reliability to satisfy the confrontation clause. McHorse, 179 F.3d at

900-01; see also White, 502 U.S. at 356 & n.8. After reviewing the evidence, we

conclude the trial court did not err by admitting Michael’s out of court statements

to medical personnel under the exception to the hearsay rule set forth in Fed. R.

Evid. 803(4).



      Federal Rule of Evidence 803(4) excepts from the hearsay rule

“[s]tatements made for purposes of medical diagnosis or treatment and describing

medical history, or past or present symptoms, pain, or sensations, or the inception

or general character of the cause or external source thereof insofar as reasonably


                                         16
pertinent to diagnosis or treatment.” Fed. R. Evid. 803(4). Mr. King objected to

Dr. Water’s testimony concerning Michael’s identification of Mr. King as the

perpetrator of the attack on the grounds the statement was not used to diagnose or

treat Michael. The district court overruled this objection, concluding the

evidence was relevant to Michael’s treatment. However, Mr. King did not object

on the basis of hearsay to the out-of-court statements Michael made to Nurse

Smith. 2 Because Mr. King failed to contemporaneously object to this testimony at

trial he has not properly preserved this argument for review. See Fed. R. Evid.

103(a)(1); United States v. Hill, 60 F.3d 672, 675 (10th Cir.), cert denied, 516

U.S. 970 (1995). Absent a contemporaneous objection at trial, we review the

admission of Mr. King’s statement to Nurse Smith for plain error only. See Hill,

60 F.3d at 675; Fed. R. Evid. 103(a)(1) & (d). We find no error in the admission

of either Dr. Water’s testimony or that of Nurse Smith.




      2
         The only objection Mr. King raised during Nurse Smith’s testimony on
direct examination was in response to the court allowing her to read from the
report she wrote the night Michael was examined after the assault. The report
contained Michael’s statement that Mr. King “tried to rape me. He took my
clothes off. He wanted me to suck his dick. He tried to put it in. I don’t know
how I got my lip hurt.” Defense counsel’s objection was as follows: “Your
honor, I’m going to object again. This has already been admitted into evidence. I
believe this witness can testify as to what may be in the exhibit and doesn’t need
to read it. Obviously the jury can read it.” The court overruled this objection,
and Nurse Smith continued to read her report without objection.


                                         17
      On appeal, Mr. King draws our attention to the plain language and the

legislative history of Rule 803(4), arguing the identity of Michael’s attacker was

not pertinent to his treatment. We disagree. In general, a victim’s statement to a

physician identifying the person responsible for the victim’s injuries is not

considered necessary for either accurate diagnosis or effective treatment, and is

not admissible under Rule 803(4). See United States v. Joe, 8 F.3d 1488, 1494

(10th Cir. 1993), cert. denied, 510 U.S. 1184 (1994). However, in domestic

sexual assault cases, the identity of the abuser is almost always reasonably

pertinent to treatment, even in cases involving adults. Id. at 1494-95. The

exception to the general rule is based on the theory that when the abuser is a

member of the victim’s family or household, the physician must know the identity

of the perpetrator in order to assess the emotional damage inflicted and in order to

suggest strategies for the victim to avoid future harm at the hands of the abuser.

Id. See also United States v. Tome, 61 F.3d 1446, 1450 (10th Cir. 1995). In

United States v. Pacheco, 154 F.3d 1236 (10th Cir. 1998), cert. denied, 525 U.S.

1112 (1999), we held the identity of the perpetrator, the victim’s mother’s

boyfriend, was pertinent to medical treatment because the mother’s boyfriend,

although not a member of the victim’s immediate family, had an “intermittent

relationship” with the victim’s mother, and the victim occasionally resided in the

same house as the perpetrator. Id. at 1241-42.


                                         18
      In the present case, the record reveals Mr. King was a frequent visitor to

Michael’s home, was a member of Michael’s extended family, resided at times in

the family compound, and had a long-term close relationship with Michael. We

have no problem affirming the district court’s determination Mr. King’s

relationship to Michael “was such that his identity as [Michael’s] abuser was

reasonably pertinent to [his] course of treatment.” Pacheco, 154 F.3d at 1242. 3

We conclude the testimony by Dr. Water and Nurse Smith concerning Michael’s

identification of Mr. King as the perpetrator of the assault was properly admitted

under Rule 803(4).



             3.      Evidence of an Uncharged Prior Attempted Sexual Assault

      We now turn to Mr. King’s argument the district court erred by allowing

Michael to testify concerning a prior incident when Mr. King allegedly asked

Michael for oral sex. After conducting a hearing on the admissibility of the


      3
          Mr. King also argues the district court erred in making this determination
because neither Nurse Smith nor Dr. Water arranged for Michael to have
counseling after the incident or considered the appropriateness of Michael’s
return to his home. However, Dr. Water testified she did make an appointment
for Michael to visit a mental health professional. She also testified hospital
protocol required her to find out if the perpetrator is a relative or someone who
lives in the house or frequents the house in order to take steps to protect the child.
Whether or not Dr. Water took further steps to protect Michael is irrelevant to the
issue of the admissibility of the statement. In the present case, the statement
identifying Mr. King as the perpetrator was pertinent to Michael’s treatment.


                                         19
proffered evidence, the district court determined Michael’s testimony concerning

the prior incident was admissible pursuant to Fed. R. Evid. 413. Although Mr.

King filed a motion in limine asking the court to exclude the evidence of the prior

incident, and his counsel argued against the admissibility of the evidence at the

hearing on the motion in limine, Mr. King’s counsel did not object to the

testimony at trial. 4 Thus, our review is for plain error only. Hill, 60 F.3d at 675;

Fed. R. Evid. 103(a) & (d). “We reverse only if admitting the statement placed

the underlying fairness of the entire trial in doubt, or if it affected one of the



      4
          At oral argument, Mr. King’s counsel asserted he made a
contemporaneous objection to Michael’s testimony at trial. However, our review
of the trial transcript reveals no such contemporaneous objection to Michael’s
testimony describing the prior incident. A motion in limine preserves an
objection for appellate review “when the issue (1) is fairly presented to the
district court, (2) is the type of issue that can be finally decided in a pretrial
hearing, and (3) is ruled upon without equivocation by the trial judge.” United
States v. Mejia-Alarcon, 995 F.2d 982, 987 (10th Cir.), cert. denied, 510 U.S.
927 (1993). We conclude this issue is not the type that could be finally decided
in a pretrial hearing. Before evidence can be admitted under Rule 413, the trail
court must determine whether the prejudicial effect of the evidence is
substantially outweighed by its probative value. Guardia, 135 F.3d at 1330
(applying the Rule 403 balancing test to evidence to be admitted under Rule
413). Thus, any final decision as to the admissibility of Rule 413 evidence
depends on the outcome of the Rule 403 balancing test. This is a very fact-
specific determination which could only properly have been made in light of the
other evidence brought forth at trial. See Mejia-Alarcon, 995 F.2d at 987 & n. 2;
Green Constr. Co. v. Kansas Power & Light Co., 1 F.3d 1005, 1013 (10th Cir.
1993). Consequently, Mr. King’s motion in limine did not preserve his objection
to the Rule 413 evidence on appeal, and we apply the plain error standard of
review.


                                          20
defendant’s substantial rights.” Hill, 60 F.3d at 675 (citations omitted). We

conclude the admission of evidence concerning the prior act, if error, does not

warrant reversal under the plain error standard.



      Michael testified that in 1995 he was walking back home from the

restaurant where his mother worked when he saw Mr. King sitting in his car. Mr.

King called Michael over to his car and told him to get into the car. Michael

complied, and Mr. King asked him to “suck his cock and lick his rear end.”

Michael attempted to leave the car, and Mr. King grabbed his arm and told him to

stay for a couple of minutes. Michael stayed in the car for about half an hour

after the proposition. During this time, Mr. King provided Michael with

marijuana, which they smoked together. Mr. King did not touch Michael again

during that period, and made no other improper suggestions.



      Federal Rule of Evidence 413 provides for the admission of “evidence of

similar crimes in sexual assault cases.” Fed. R. Evid. 413. 5 Such uncharged

conduct is admissible under Rule 413 if the following requirements are met: 1)


      5
        Federal Rule of Evidence 413 provides: “In a criminal case in which the
defendant is accused of an offense of sexual assault, evidence of the defendant's
commission of another offense or offenses of sexual assault is admissible, and
may be considered for its bearing on any matter to which it is relevant.” Fed. R.
Evid. 413(a).

                                         21
the defendant is accused of an offense of sexual assault; 2) the proffered evidence

is evidence of the defendant’s commission of sexual assault; and 3) the proffered

evidence is relevant. Guardia, 135 F.3d at 1328. The definition of sexual assault

for purposes of Rule 413 includes an attempted sexual assault. Fed. R. Evid.

413(d)(5). Before it allows evidence of a prior sexual assault into a trial, “[t]he

district court must make a preliminary finding that a jury could reasonably find by

a preponderance of the evidence that the ‘other act’ occurred.” United States v.

Enjady, 134 F.3d 1427, 1433 (10th Cir.), cert. denied, 525 U.S. 887 (1998).



      The district court concluded the government could establish by a

preponderance of the evidence Mr. King committed the offense of attempted

sexual abuse of a minor. The court determined the proposition, coupled with Mr.

King’s attempt to physically prevent Michael from exiting the car, constituted a

substantial step in the commission of the offense, and therefore, the second part

of the test for admission of testimony under Rule 413 was satisfied. The court

further determined the evidence was relevant and the third step was satisfied

because the victim and the perpetrator were the same in the prior incident, the

conduct was similar to that charged, and the incident was relatively close in time

to the events charged.




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      In order to prove it was more likely than not Mr. King committed the

offense of an attempted sexual assault under Rule 413(d)(5), the prosecution had

to show Mr. King possessed the criminal intent to engage in the criminal conduct

and that he took a “substantial step” toward the commission of the crime. United

States v. Moore, 198 F.3d 793, 797 (10th Cir. 1999), cert. denied, 120 S. Ct. 1693

(2000). Mr. King concedes his solicitation of oral sex satisfies the intent aspect

of the alleged attempted sexual assault, but contends grabbing Michael’s arm to

keep him in the car when he tried to leave was not a substantial step toward the

commission of the crime of sexual abuse.



      “[A] substantial step must be conduct that is ‘strongly corroborative of the

firmness of the defendant’s criminal intent.’” United States v. Savaiano, 843 F.2d

1280, 1296 (10th Cir.) (quoting United States v. Prichard, 781 F.2d 179, 181

(10th Cir. 1986)), cert. denied, 488 U.S. 836 (1988). Conduct may amount to a

substantial step if it is “something more than mere preparation, yet [perhaps] less

than the last act necessary before the actual commission of the substantive crime.”

United States v. Davis, 8 F.3d 923, 927 (2d Cir. 1993) (quotation marks and

citation omitted). In undertaking a substantial step for an attempt crime, “[i]t is

essential that the defendant, with the intent of committing the particular crime, do

some overt act adapted to, approximating, and which in the ordinary and likely


                                          23
course of things will result in, the commission of the particular crime.” United

States v. Monholland, 607 F.2d 1311, 1318 (10th Cir. 1979). Although the act

should “evidence commitment to the criminal venture,” United States v. Oviedo,

525 F.2d 881, 885 (5th Cir. 1976), “[i]t is not necessary that the evidence exclude

every reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt, provided a reasonable trier of fact could find that

the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell,

678 F.2d 547, 549 (5th Cir. 1982 ) (en banc), aff'd, 462 U.S. 356 (1983).

However, because the substantial step test shifts the focus of the inquiry from

what remains to be done to what has already been done, the fact further major

steps remain “before the crime can be completed does not preclude a finding that

the steps already undertaken are substantial.” Savaiano, 843 F.2d at 1297

(quotation marks and citation omitted).



      Although Mr. King’s intent in asking Michael into the car was certainly

criminal, as evinced by his statement to Michael immediately upon Michael’s

entrance to the vehicle, his act of grabbing Michael’s arm is ambiguous. It is

subject to two equally viable interpretations: Mr. King wanted to keep Michael in

the car for the purpose of engaging in oral sex, or he simply did not want Michael

to leave the car despite the fact Michael was unwilling to engage in oral sex.


                                          24
Thus, we cannot say this act was “strongly corroborative of the firmness of the

defendant’s criminal intent.” Savaiano, 843 F.2d at 1296 (quotation marks and

citation omitted). However, in light of the other evidence properly admitted at

trial, we conclude any error in the admission of the prior act did not call into

doubt “the underlying fairness of the entire trial” or affect Mr. King’s substantial

rights. See Hill, 60 F.3d at 675.



      For the forgoing reasons, we AFFIRM the judgment of the district court.


                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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