                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           AUG 7 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

    v.                                                   No. 97-5145
                                                    (D.C. No. 97-CR-51-K)
    R.D.A., Jr., a juvenile male,                        (N.D. Okla.)

                 Defendant-Appellant.




                              ORDER AND JUDGMENT          *




Before TACHA and McKAY , Circuit Judges, and         BROWN , ** Senior District
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

*
      This order and judgment is not binding precedent, except under the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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
       Defendant was found guilty, after trial to the bench, on three counts of a

seven-count information: sexual abuse of another who is incapable of appraising

the nature of the conduct, within Indian country, in violation of 18 U.S.C.

§§ 2242(2)(A), 1151, 1153, and 5032; and two counts of abusive sexual contact

with children within Indian country, involving two different children, in violation

of 18 U.S.C. §§ 2244(a)(1), 1151, 1153, and 5032. The district court entered

a finding of juvenile delinquency and sentenced defendant to 18 months’ official

detention for count one, and placed defendant on probation until his twenty-first

birthday for counts two and three. Defendant appeals his judgment and sentence,

arguing that there was insufficient evidence to support the juvenile delinquency

adjudication and that the district court’s refusal to allow testimony regarding

a polygraph test violated his Sixth Amendment rights.

       We review the record de novo to determine whether there is sufficient

evidence to support the convictions.   See United States v. Voss , 82 F.3d 1521,

1524-25 (10th Cir.), cert. denied , 117 S. Ct. 226 (1996). We consider both direct

and circumstantial evidence and the reasonable inferences drawn therefrom, and

we view the evidence in the light most favorable to the government to determine

whether a reasonable jury could find defendant guilty beyond a reasonable doubt.

See id. The evidence must be substantial and must raise more than a mere

suspicion of guilt.   See United States v. Yoakam , 116 F.3d 1346, 1349 (10th Cir.


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1997). “We do not use this evaluation as a chance to second-guess the [court’s]

credibility determinations, nor do we reassess the [court’s] conclusions about the

weight of the evidence presented.”   Id. (quotation omitted). Guided by these

standards, we affirm.

      Defendant was a juvenile at the time of the criminal acts with which he

was charged. He lived near Jimmy, Kimberly and Justin, siblings who were also

juveniles at the time of the alleged acts. Jimmy and defendant were frequent

playmates, and all four children spent considerable time together. Count one

involved an act of anal sodomy with Jimmy. Defendant argues that the

government failed to present sufficient evidence of Jimmy’s incapability to

appraise the nature of the act, a necessary element of the crime. Our review of

Jimmy’s testimony at trial presents sufficient evidence from which the court

found that Jimmy was incapable of appraising the nature of the sexual act

defendant committed upon him. Reading Jimmy’s testimony in comparison to the

testimony of his two younger siblings, it is obvious that Jimmy was functioning

mentally at a younger age than his physical age. It is readily apparent from

Jimmy’s testimony that he did not understand the difference between a “good

touch” and a “bad touch,” and that he did not understand that there might be

anything objectionable about defendant’s contact. In addition, a clinical

psychologist who had done testing on Jimmy testified that, even though Jimmy


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was capable of saying “no” in general, he did not understand that the sexual

penetration by defendant was inappropriate.

      Count two requires the government to prove that defendant intended to

abuse, humiliate, harass or degrade Kimberly.   See 18 U.S.C. §§ 2244(a)(1),

2246(3). Kimberly testified that defendant pulled his pants down, grabbed her

hand, and forced her to touch his penis. Defendant is six years older than

Kimberly, and she was eight or nine years old at the time. They were not friends

or playmates. Kimberly testified that she pulled her hand back and went home

immediately. She also testified that defendant shot her with a BB gun because

she told on him when he pulled his pants down on a previous occasion and that

she was afraid that he might hurt her again. The record contains sufficient

evidence to support the district court’s finding of juvenile delinquency on

count two.

      Count three also requires proof of defendant’s intent to abuse, humiliate,

harass or degrade. The object of that incident was Kimberly’s twin brother,

Justin. Justin testified that defendant grabbed his “private parts” from behind and

that he told defendant to stop. In addition, Kimberly testified that she saw

defendant pull Justin’s pants down, reach from behind Justin and through his legs,

and grab Justin’s “private parts.” The record contains sufficient evidence

to support the finding of juvenile delinquency on count three.


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       Finally, defendant argues that the district court’s refusal to allow testimony

regarding the results of his polygraph test violated his Sixth Amendment rights.

The district court did not invoke a per se rule disallowing testimony regarding

polygraph tests, although we note that the Supreme Court has recently held that

such a per se rule does not necessarily significantly impair presentation of

a defense in violation of constitutional rights.     See United States v. Scheffer ,

118 S. Ct. 1261, 1266, 1268-69 (1998). In this case, the district court questioned

the witness regarding his knowledge of the scientific aspects and opinions of

polygraph results and determined that the witness was not qualified to submit

expert testimony on the subject. The witness was trained in administering

polygraph tests, but he had no knowledge of the scientific accuracy of the results.

Federal Rule of Evidence 702 is the guideline by which the district court must

assess the admissibility of expert testimony.       See Daubert v. Merrell Dow Pharm.,

Inc. , 509 U.S. 579, 589-95 (1993).     Daubert requires a two-part determination:

“whether the reasoning or methodology underlying the testimony is scientifically

valid and . . . whether that reasoning or methodology properly can be applied to

the facts in issue.” 509 U.S. at 592-93. There was no abuse of discretion in the

district court’s finding that the witness was not qualified to provide expert

testimony regarding the scientific accuracy of the results of the polygraph test.

See United States v. Davis , 40 F.3d 1069, 1075 (10th Cir. 1994). In addition,


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it is significant that defendant testified on his own behalf. He was permitted to

tell his story, and the district court’s refusal to allow the polygraph testimony

did not impair that right in any manner.   See Scheffer , 118 S. Ct. at 1269.

       The record in this case contains substantial evidence in support of the

district court’s findings of juvenile delinquency on counts one, two, and three.

Further, defendant suffered no violation of his constitutional rights by the district

court’s refusal to allow testimony regarding the results of his polygraph test.

The convictions and sentence are AFFIRMED.



                                                      Entered for the Court



                                                      Monroe J. McKay
                                                      Circuit Judge




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