                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              OCT 20 1997
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

               v.
                                                           No. 97-2023
 JEREMY JAMES ROSETTA,                               (D.C. No. CR-96-132-BB)
                                                            (D. N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


      Jeremy James Rosetta appeals his conviction and sentence for sexual abuse

under 18 U.S.C. §§ 1153 and 2242(1). He contends the victim's out-of-court

statements about the assault to her mother, a police officer, a community health

worker, and a doctor were improperly admitted into evidence, and that a statement

by the prosecutor in opening argument was an impermissible comment on

Rosetta's right to remain silent. He also challenges the restitution imposed as part

of his sentence, arguing the district court failed to make findings of fact resolving


      *
          This order and judgment is not binding precedent, except under the doctrines of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.
his objections to the findings in the presentence report as to the victim's monetary

loss. We affirm the conviction, but vacate the restitution portion of the sentence

and remand to the district court.

                                          I.

      Rosetta contends the district court erred in admitting into evidence during

redirect examination the victim's testimony that she told her mother Rosetta had

raped her. Relying on Tome v. United States, 513 U.S. 150 (1995), he argues the

statement was inadmissible under Fed. R. Evid. 801(d)(1)(B), which provides that

a witness' out-of-court statements are not hearsay if they are consistent with the

witness' testimony and are offered to rebut a charge of recent fabrication or

improper influence or motive. In Tome, the Court held consistent statements are

admissible under the rule only if they are made before the charge of recent

fabrication or improper influence. Id. at 156. Rosetta's defense was that he had

consensual sex with the victim. He argues a motive arose to fabricate a rape

accusation against him when the victim's husband punched her for being out all

morning, and that the statement is inadmissible because the victim made her

statement to her mother after she was punched.

      Because the victim's statement to her mother was made after the alleged

motive arose, it did not satisfy the Tome requirements. However, we conclude

the statement was not hearsay for another reason--it was adopted by the victim


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under oath on the witness stand. Although the district court did not rely on this

ground, we may affirm for reasons other than those relied on by the district court.

See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994). An

evidentiary ruling can be affirmed on any proper ground. Sheets v. Salt Lake

County, 45 F.3d 1383, 1390 (10th Cir.), cert. denied 116 S. Ct. 74 (1995).

      The advisory committee note to Fed. R. Evid. 801(d)(1) explains: "If the

witness admits on the stand that he made the statement and that it was true, he

adopts the statement and there is no hearsay problem." Because the adopted

statement is not hearsay, it is substantive evidence and need not be limited to

impeachment or rehabilitation of the witness. Adoption of prior statements by a

witness will "make the statements a part of the witness' present testimony." Tripp

v. United States, 295 F.2d 418, 425 (10th Cir. 1961). See also Amarin Plastics,

Inc. v. Maryland Cup Corp., 946 F.2d 147, 153 (1st Cir. 1991). Here, the victim

testified under oath that she told her mother Rosetta had raped her, and that

Rosetta did in fact rape her. She adopted the statement made to her mother as her

present testimony. Consequently, the statement was not hearsay and was

substantive evidence of the rape.

      Moreover, any error in admitting the statement was harmless. The

statement to which Rosetta objects was a bare statement that the victim told her

mother Rosetta had raped her. By the time the victim gave this testimony on


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redirect, she had already testified unequivocally and in detail on direct and cross-

examination that Rosetta had raped her. By contrast, in Tome, admission of the

hearsay statements was not harmless because they were detailed and the victim's

in-court testimony was weak. We conclude the victim's statement could not have

had a substantial effect on the jury's verdict and was therefore harmless. See

United States v. Birch, 39 F.3d 1089, 1094 (10th Cir. 1994).

                                          II.

      Rosetta contends the district court erred in admitting an officer's testimony

that the victim told him she had been raped. Although the victim made the

statement approximately nine hours after the assault, the court admitted the

testimony under the present sense impression exception to the hearsay rule, Fed.

R. Evid. 803(1), and as non-hearsay offered to prove not that the rape occurred

but to explain why the officer conducted an investigation.

      The testimony was not properly admitted under 803(1) because a delay of

minutes or hours between an event and a statement bars resort to 803(1). See 4

Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 434, pp.

385-87 (2d ed. 1994). However, the statement was not hearsay to the extent it

was offered to explain the officer's actions in investigating the case rather than as

substantive evidence of the rape. See United States v. Wilson, 107 F.3d 774, 780

(10th Cir. 1997); United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987);


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Federal Evidence § 387, p. 87. In United States v. Cass, __ F.3d ____, 1997 WL

634174 (1997), we held hearsay statements offered to explain the course of an

investigation were inadmissible because the statements were also used as

substantive evidence of the crime and were so numerous and pervasive that they

presented a danger of prejudice. Here, by contrast, the officer's brief statement

that the victim reported a rape was not offered as substantive evidence and did not

present the same risk of prejudice as those in Cass.

       Moreover, this court may affirm for reasons other than those relied on by

the district court, see Sandoval, 29 F.3d at 542 n.6, and an evidentiary ruling can

be affirmed on any proper ground, see Sheets, 45 F.3d at 1390. Even if offered as

substantive evidence of the rape, the victim's statement to the officer fit within

the excited utterance exception to the hearsay rule, Fed. R. Evid. 803(2). A

statement made hours after a stressful event may fit within the excited utterance

exception if the declarant was still under stress caused by the event. See United

States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993); Federal Evidence § 425, p.

400.

       The doctor who treated the victim seven hours after the assault testified she

was "acutely traumatized" and was in a "panic state." The doctor stated it was not

unusual for a rape victim to be unable to function or make decisions for a period

of time. The officer testified that when he interviewed the victim, she was in an


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emotional state, was crying, and would not look him in the face. Because there

was evidence the victim was still under stress from the assault, her statement to

the officer was properly admissible under 803(2). Even if admission of the

statement was in error, any error in admitting the officer's brief testimony that the

victim told her she was raped was harmless in light of the victim's unequivocal

and detailed testimony that Rosetta had raped her.

                                         III.

      Rosetta contends the district court erred in admitting into evidence the

victim's statements to the community health representative and to the doctor who

treated her. Although the statements may not have been admissible as prior

consistent statements of a witness under 801(d)(1)(B), they were admissible as

statements for purposes of medical diagnosis or treatment under Fed. R. Evid.

803(4). See Tome, 61 F.3d at 1449-50. The advisory committee note to 803(4)

provides: "Under the exception the statement need not have been made to a

physician. Statements to hospital attendants, ambulance drivers, or even members

of the family might be included." See id. at 1451.

                                         IV.

      Rosetta also contends the prosecutor improperly commented on Rosetta's

right to remain silent when she stated in opening argument:




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             As a matter of common sense, you, being the judges of the
      fact, think about who is actually going to be a witness in a rape case.
      It usually happens not in a public place, usually happens only
      between two people, primarily behind closed doors. And so this
      case, as in most--all rape cases, it just has to be true that the most
      important witness the Government is going to bring to you is the
      complaining witness, the woman who reported this rape, the woman
      who is going to tell you she was raped by Jeremy Rosetta.

Append. VI at 51.

      The test for determining whether a statement is an impermissible comment

on defendant's right to remain silent is "'whether the language used was

manifestly intended or was of such character that the jury would naturally and

necessarily take it to be a comment' on the defendant's right to remain silent."

United States v. May, 52 F.3d 885, 890 (10th Cir. 1995) (quoting United States v.

Mora, 845 F.2d 233, 235 (10th Cir. 1988)). The language here did not refer to

Rosetta and was not a comment on his right to remain silent. It was a comment

on the fact that almost always the only persons present at a rape are the victim

and the assailant and that the victim will be the prosecution's most important

witness. The language was not manifestly intended as, or of such character that

the jury could naturally and necessarily take it to be, a comment on Rosetta's right

to remain silent.




                                         -7-
                                          V.

      Rosetta contends the district court erred in requiring him to pay $4,700 in

restitution because the court failed to make specific findings of fact resolving his

objections to the findings in the presentence report as to the victim's monetary

losses. Fed. R. Crim. P. 32(c)(1) provides that, at sentencing, the district court,

"[f]or each matter controverted, . . . must make either a finding on the allegation

or a determination that no finding is necessary because the controverted matter

will not be taken into account in, or will not affect, sentencing." This court has

repeatedly held that "a district court may not satisfy its obligation by simply

adopting the presentence report as its findings." United States v. Farnsworth, 92

F.3d 1001, 1011 (10th Cir.), cert. denied 117 S. Ct. 596 (1996). Because the

district court failed to make specific findings resolving Rosetta's objections to the

findings in the presentence report, the restitution portion of the sentence must be

set aside and the case remanded for further findings on the restitution issue.

                                         VI.

      The judgment of conviction is AFFIRMED. The restitution portion of the

sentence is VACATED and the case REMANDED for further findings on the

restitution issue.
                                                Entered for the court

                                                Mary Beck Briscoe
                                                Circuit Judge


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