                                       ___________

                                       No. 96-1294
                                       ___________

Henry Lovejoy, Sr.,                        *
                                           *
                 Appellant,                *   Appeal From the United States
                                           *   District Court for the
     v.                                    *   District of Nebraska
                                           *
United States of America,                  *
                                           *
                 Appellee.                 *


                                       ___________

                        Submitted:     June 12, 1996

                              Filed:   August 7, 1996
                                       ___________

Before RICHARD S. ARNOLD, Chief Judge, F. GIBSON, Senior Circuit Judge,
     and KORNMANN,* District Judge.
                            ___________

KORNMANN, District Judge.

     Appellant, Henry Lovejoy, Sr., was convicted of attempted sexual
abuse in violation of 18 U.S.C. § 2242(2)(A) and (B).           The District Court1
sentenced Lovejoy to 121 months imprisonment.           Lovejoy claims the District
Court erred in failing to find a violation of the Equal Protection Clause2
when the government exercised a peremptory challenge to exclude a black
person from the jury, in admitting as evidence statements made by the
victim's mother, and in failing to suppress incriminating statements
Lovejoy made to F.B.I. agents.          We affirm.




         *
      The Hon. Charles B. Kornmann, United States District Judge
for the District of South Dakota, sitting by designation.
     1
     The Hon. Thomas M. Shanahan, United States District Judge for
the District of Nebraska.
             2
       See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986).
                                 I.   Background
     Lovejoy was charged with attempting to engage in a sexual act with
his 13-year-old daughter.     The victim is partially blind and cannot speak
more than a few words.     She cannot write, read braille, or communicate by
sign language.    She is unable to communicate with others in any meaningful
fashion.    The victim's mother, Lovejoy's common-law wife, must communicate
with others for the victim.
     On the night of the incident the victim went to sleep, as she often
did, on the floor next to the bed of her mother and Lovejoy.         Sometime
during the night, the victim's mother placed the victim in the bed in which
Lovejoy was sleeping because it was hot on the floor and the mother then
slept on the floor.   The victim's mother was awakened by noises coming from
the bed.    She halted Lovejoy's assault on the victim by punching Lovejoy
in the stomach.     She removed the victim from the room and preserved the
victim's clothing as evidence.     The next morning Lovejoy left the home and
did not return.
     The day after the incident, the mother reported what she had seen to
the Legal Aid office.     She further reported what she had seen to the tribal
prosecutor, a tribal police officer, Child Protective Services, and to
medical personnel who examined the victim.
                                II.   Discussion
     A.    Batson Claim
     Lovejoy argues the District Court erred in denying his Batson claim
because the government exercised one of its peremptory challenges to strike
the only African American person on the jury panel, in violation of Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
     We review the District Court's decision on a Batson claim under the
clearly erroneous standard.     United States v. Brooks, 2 F.3d 838, 840 (8th
Cir. 1993), cert. denied, --- U.S. ---, 114 S.Ct. 1117, 127 L.Ed.2d 427
(1994).    The government claims Lovejoy did not establish a prima facie case
of discrimination as required




                                       -2-
for a successful Batson claim.     See Id. (defendant who raises a Batson
claim is required to make a prima facie showing that the prosecutor
exercised a peremptory challenge on the basis of race).    However, the prima
facie issue is moot if the government offers race neutral reasons for a
strike and the trial court rules on the ultimate question of intentional
discrimination.     Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994),
cert. denied, --- U.S. ---, 115 S.Ct. 737, 130 L.Ed.2d 639 (1995) (citing
Brooks, 2 F.3d at 840).
      In this case, the District Court found the government offered race
neutral reasons in support of the strike.   See United States v. Atkins, 25
F.3d 1401, 1405 (8th Cir.), cert. denied, --- U.S. ---, 115 S.Ct. 371, 130
L.Ed.2d 322 (1994) (explaining that "[a] prosecutor's explanation for a
strike is considered race neutral if the explanation is facially based on
something other than the juror's race, i.e., if discriminatory intent is
not   inherent in the stated reason.").       To justify its strike, the
government pointed to the testimony of the prospective juror at issue, Ms.
Doris Ray.   Ms. Ray stated during voir dire that she had a nephew who was
convicted of molesting a young child.   Although she felt he received a fair
trial on the sexual molestation charge, she expressed some skepticism about
the fairness of his trial in a subsequent prosecution that resulted in a
life sentence; she thought additional evidence should have been admitted
during his trial.
      The District Court found the proffered reasons were not pretextual.
This decision is supported by the fact that the government struck a
similarly situated white male, Donald Petermann.          Like Ms. Ray, Mr.
Petermann had a relative who had been convicted and sentenced for sexual
abuse.   We recently explained that a race neutral reason can be shown to
be pretextual if the characteristics of a stricken minority panel member
are shared by a white panel member who was not stricken.    See Davidson, 30
F.3d at 965.    Therefore, in determining whether a proffered reason for
striking a minority prospective juror is pretextual, courts may




                                    -3-
consider whether a similarly situated white prospective juror was stricken.
Id.
      We agree with the District Court that the reasons offered by the
government for striking Ms. Ray were race neutral and not pretextual.             Ms.
Ray may have had some reservations about rules of evidence which exclude
certain evidence in criminal trials and she may have had some sympathy for
criminal defendants based upon her nephew's experiences.               The District
Court's denial of Lovejoy's Batson claim was not clearly erroneous.
      B.   Claimed Hearsay Statements
      Pursuant to Federal Rule of Evidence 803(4), the District Court
admitted statements made by Christine Lovejoy (victim's mother) to a nurse.
Although Ms. Lovejoy testified at trial and recanted her allegations, she
told the nurse examining the victim a few days after the incident that she
was awakened by sounds coming from the bed in which Lovejoy and the victim
were sleeping, that she saw Lovejoy standing by the victim with an erection
and that the victim's underwear was down and her tee shirt was up.          Lovejoy
contends    the   District   Court   abused   its   discretion   in   admitting   the
statements Ms. Lovejoy made to the nurse.           Lovejoy claims the statements
were not reasonably pertinent to diagnosis or treatment.
      We evaluate first the District Court's decision to admit evidence
under Rule 803(4) under the abuse of discretion standard.             United States
v. Yellow, 18 F.3d 1438, 1442 (8th Cir. 1994).        To be admissible under Rule
803(4), the statement must satisfy two tests.             First, the declarant's
motive in making the statement must be consistent with the purpose of
promoting treatment.    United States v. Longie, 984 F.2d 955, 959 (8th Cir.
1993) (citing United States v. Renville, 779 F.2d 430, 436 (8th Cir.
1985)).    Second, the content of the statement must be such as is reasonably
relied upon by health care providers in treatment or diagnosis.             Id.
      Ms. Lovejoy made the statements while her daughter, who could not
communicate orally or in writing on her own, was being examined by a
medical professional in connection with allegations of sexual




                                        -4-
abuse.     The examination was done a few days after the incident.      That the
mother was concerned about what she observed during the night in question
is shown by her actions in removing her daughter from the bedroom and
segregating her clothing for delivery to authorities.         The District Court
did not abuse its discretion in deciding the mother's motive in making
these statements was consistent with promoting the treatment of her
daughter.     The first test was met.
      The statements at issue in this case are similar to the statements
admitted under Rule 803(4) in United States v. Iron Shell, 633 F.2d 77, 82
(8th Cir. 1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d
203 (1981).     In Iron Shell, the treating physician was allowed to repeat
statements which the victim made to him during a physical examination.       Id.
The physician repeated that the victim "had been drug into the bushes, that
her clothes, jeans and underwear, were removed and that the man had tried
to force something into her vagina which hurt."        Id.   We held that it was
not   an   abuse of discretion to admit this testimony because it was
reasonably pertinent to diagnosis or treatment.         Id. at 83-85.
      In the case at hand, the mother informed the nurse examining her
daughter that she saw Lovejoy standing over the victim with an erection,
although she did not say she saw him penetrate the victim.              She also
informed the nurse that the victim's underwear was down and her tee shirt
was up.    This information would aid the medical professionals examining the
victim by "pinpointing areas of the body to be examined more closely and
by narrowing [the] examination by eliminating other areas."          Id. at 84.
"Discovering what is not injured is equally as pertinent to treatment and
diagnosis as finding what is injured."        Id.   Furthermore, Lovejoy did not
introduce any evidence to contradict the examining nurse's testimony that
it is important for the nurse to know the nature of the complaint since the
nature of the examination may hinge thereon.           A nurse often assists a
physician in taking the history.        The District Court did not abuse its
discretion in deciding it was




                                        -5-
reasonably pertinent to the victim's diagnosis and treatment to know the
details surrounding the incident for which the victim was being examined.
The second test was met.
     The District Court did not abuse its discretion in admitting the
mother's statements to the nurse examining the victim.
     Even apart from Lovejoy's arguments as to Rule 803(4), the statements
were also clearly admissible under Rule 803(24).    As discussed above, the
statements by the mother were trustworthy.     The victim's mother's prior
statements testified to by Ms. Hogue were offered as evidence of Lovejoy's
conduct which is a material fact in this case.     This testimony was more
probative on the conduct of Lovejoy than any other evidence because the
mother testified differently at trial, the victim could not testify and no
other persons witnessed the attempted assault.     Furthermore, the general
purposes of the Rules of Evidence and the interests of justice will best
be served by admission of the testimony into evidence.
     C.   Admission of Defendant's Statement
     Lovejoy contends his written statement to F.B.I. agents following his
arrest was given involuntarily because he was ill, needed medication and
he made the statement under coercive conditions only after being threatened
and then promised with release.    We review for clear error the District
Court's underlying factual determinations as to the voluntariness of a
confession.   United States v. Magness, 69 F.3d 872, 874 (8th Cir. 1995).
Whether the confession was voluntary is a question of law and is subject
to de novo consideration.   Id.
     The District Court found Lovejoy's statement was voluntary.    Lovejoy
did not miss any required doses of medication and did not state during the
interview that he was in pain.    The agents conducting the interview were
dressed in civilian clothing with their weapons hidden, Lovejoy was
cooperative during the interview, no threats or promises were made during
the interview, the interview lasted approximately one hour and twenty
minutes and Lovejoy never asked that the questioning stop or that he be
allowed




                                    -6-
to consult with an attorney.        Our review of the record demonstrates that
these    factual   determinations    by   the   District    Court      are   not   clearly
erroneous.
        We recently explained that, "[t]he appropriate test for determining
the voluntariness of a confession is whether the confession was extracted
by   threats, violence, or direct or implied promises, such that the
defendant's will was overborne and his capacity for self-determination
critically impaired."    United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.
1995) (citations omitted).          Courts must evaluate the totality of the
circumstances in making this determination.                Id.     Given the factual
findings made by the District Court, we conclude that Lovejoy's statement
was voluntary in that his "will was [not] overborne and his capacity for
self-determination [was not] critically impaired."               Id.


                               III.       Conclusion
        For the reasons stated herein, we conclude the District Court
properly denied Lovejoy's Batson claim, properly admitted the mother's
statements and properly admitted Lovejoy's statements to the F.B.I.                    The
decision of the District Court is affirmed.            We express our thanks to
appointed counsel for diligent public service.

        A true copy.

             Attest:

                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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