                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 98-3902
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Stuart Lee Sumner,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 19, 1999

                                  Filed: March 2, 2000
                                   ___________

Before WOLLMAN, Chief Judge, HEANEY, and LOKEN, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       Stuart Lee Sumner, an enrolled member of the Red Lake Band of Chippewa
Indians, appeals his convictions on two counts of abusive sexual contact, in violation
of 18 U.S.C. § 2244(a)(1), and on one count of aggravated sexual abuse of a child, in
violation of 18 U.S.C. § 2241(c). We reverse.
                                           I.

      This is Sumner’s second appearance before us. In United States v. Sumner, 119
F.3d 658, 660-61 (8th Cir. 1997) (Sumner I), we reversed his convictions on the same
charges, holding that the erroneous admission of prior-act evidence under Federal Rule
of Evidence 404(b) constituted a non-harmless error.

      These proceedings stem from Sumner’s interaction with D.D., the then six-year-
old daughter of his girlfriend. Sumner was accused of touching D.D.’s genital area,
both when she was clothed and unclothed, and of causing D.D. to touch him sexually.
D.D. was unable to testify at trial.

                                          II.

        Sumner first contends that the district court abused its discretion in admitting
under Rule 803(4) of the Federal Rules of Evidence D.D.’s statements to Dr. Darryl
Zitzow, who was at that time working as an Indian Health Service clinical psychologist
on the Red Lake Indian Reservation. Dr. Zitzow first examined D.D. on May 2, 1995,
after she had been placed in foster care following her mother’s arrest for neglect. The
following is Dr. Zitzow’s description of the manner in which he established his
doctor/patient relationship with D.D.:

      Q. As a general rule, before you start an assessment, do you introduce
         yourself to the child?

      A. Yes, I do (nods head up and down).

      Q. How do you do that?

      A. I tell children that I’m a doctor, but I’m a different kind of doctor,
         I’m a doctor that will talk to children, I’m a doctor that usually


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           doesn’t physically examine children, I’m a doctor that will
           sometimes engage in playing games with the children.

      Q. Okay. Did you introduce yourself that way to [D.D.]?

      A. Yes.

      Q. Did you determine whether or not she understood your role as
         doctor?

      A. Yes.

      Q. Okay. Now you had indicated that the first thing you do in an
         assessment -- can you kind of briefly review your first step in the
         assessment process?

       After playing some magic tricks with D.D., Dr. Zitzow, using anatomically
correct dolls, asked D.D. to point to various body parts to gauge her knowledge and
then to use the dolls herself to demonstrate what sexual activity had occurred. Based
upon the foregoing foundational testimony, Dr. Zitzow was permitted to testify that
D.D. had stated that Sumner had touched her sexually and had forced her to touch him.

      The admission of out-of-court statements of child victims in sexual abuse cases
is governed by the holding in Idaho v. Wright, 497 U.S. 805 (1990). To satisfy the
requirements of the Confrontation Clause of the Sixth Amendment, such statements
must bear adequate “indicia of reliability,” either because they fall within a “firmly
rooted hearsay exception” or because they are supported by a showing of particularized
guarantees of trustworthiness. See id. at 816. Rule 803(4), which allows the
admission of statements made for the purposes of obtaining medical diagnosis and
treatment, is widely accepted as a firmly rooted hearsay exception. See White v.
Illinois, 502 U.S. 346, 355 n.8 (1992).



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         We review the district court’s decision to admit evidence under Rule 803(4)
under an abuse-of-discretion standard. See United States v. Beaulieu, 194 F.3d 918,
921 (8th Cir. 1999). We apply a two-part test to determine whether a statement meets
the standards of admission under Rule 803(4): “first, the declarant’s motive in making
the statement must be consistent with the purposes of promoting treatment; and second,
the content of the statement must be such as is reasonably relied on by a physician in
treatment or diagnosis.” United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985).
In Olesen v. Class, 164 F.3d 1096 (8th Cir. 1999), we held to be inadmissible under
Rule 803(4) a statement identifying the sexual abuser made by a five-year-old to a
pediatrician who had told the child only “what was going to happen” during his
physical examination of her. The doctor had not discussed why the questions he asked
were important to the diagnosis and treatment and why it was important for the child
to tell the truth regarding the identify of the abuser. See id. at 1098. We explained that
it must be shown that the child understands the “medical significance of being truthful,”
i.e., the role of the medical health professional in trying to help or heal her, which
triggers the motivation to be truthful. See id.

       We conclude that D.D.’s statements to Dr. Zitzow are as wanting in admissibility
as those found inadmissible in Olesen. Although Dr. Zitzow explained that he was a
doctor, he did not discuss with D.D. the need for truthful revelations or emphasize that
the identification of her abuser was important to Dr. Zitzow’s attempts to help her
overcome any emotional trauma resulting from the abuse to which she had been
subjected. There is no clear evidence in the record that D.D. knew that she had been
brought to Dr. Zitzow for medical diagnosis or possible treatment for any medical or
emotional problems. Dr. Zitzow’s cryptic “yes” in response to the question whether
he had determined whether D.D. understood his role as a doctor constituted an
inadequate ground upon which to base a finding that D.D. in fact understood that role.
Apart from its inherent ambiguity, the answer is conclusory rather than explicatory,
offering as it does nothing by way of detail that would enable the trier of fact to be
satisfied that D.D. in fact had an understanding of Dr. Zitzow’s role. Cf. United States

                                           -4-
v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993) (doctor may testify to non-testifying
child’s understanding if the testimony “adequately demonstrates [the child’s] level of
understanding”); Ring v. Erickson, 983 F.2d 818, 820 n.2 (8th Cir. 1993) (parents or
physician may testify that non-testifying child knew and understood doctor’s role).
Indeed, the evidence regarding D.D.’s understanding cuts against a finding that D.D.
understood that role, for D.D. told a therapist in June of 1995 that she went to see Dr.
Zitzow just “to talk,” giving no indication that she understood that the doctor was
examining her or trying to help her. Accordingly, we hold that the prosecution failed
to establish that D.D.’s statements to Dr. Zitzow satisfied the requirements of Rule
803(4).

       We look, then, to see whether there are particularized guarantees of
trustworthiness surrounding D.D.’s statements that satisfy the Confrontation Clause and
thus render them admissible. In determining whether a statement meets this test of
admissibility, “we examine its trustworthiness in light of the totality of the
circumstances that surrounded its making, without regard to other evidence in the
record that might corroborate the statement.” Id. Some of the factors that are
appropriate for courts to consider include the spontaneity of the statements, their
consistent repetition, and the child’s lack of a motivation to fabricate. See Barrett, 8
F.3d at 1300. In Olesen we discussed potential indicia of reliability and found too few.
See 164 F.3d at 1100. There, the child did not testify at trial, a fact which we noted
presents a far greater obstacle to admitting hearsay statements in light of the
defendant’s lack of opportunity to confront and cross-examine his accuser. See id. at
1099. The record in Olesen revealed few indications of the trustworthiness of the
child’s statements to the doctor. See id. at 1100. The evidence tended to show the
contrary; for example, the doctor’s testimony indicated that the child mostly nodded in
response to questions posed during the examination and offered little description or
detail. See id. at 1099. Accordingly, we held that under the analysis required by
Wright, the prosecution had not shown that the statement had sufficient guarantees of


                                          -5-
trustworthiness, and that its admission therefore violated the Confrontation Clause. See
id. at 1100.

       As noted earlier, D.D. did not testify at trial. The government argues that
because an expert witness testified that Dr. Zitzow’s interviewing techniques were
proper, D.D.’s statements were sufficiently trustworthy to be admitted at Sumner’s
trial. We do not agree. As noted above, D.D.’s motive in speaking to Dr. Zitzow is
unclear. There is also some question of the spontaneity of the statements. It appears
that D.D. answered many questions by responding “yes” or simply pointing, rather than
by responding with the spontaneous revelations indicative of trustworthiness. We
conclude, therefore, that the circumstances surrounding D.D.’s statements to Dr.
Zitzow lack the requisite guarantees of trustworthiness and indicia of reliability.
Accordingly, the admission of D.D.’s statements through Dr. Zitzow violated Sumner’s
Confrontation Clause rights.

       There remains the question whether the admission of D.D.’s statements
constituted harmless error. We conclude that it did not. In Sumner I, we noted several
circumstances that indicated that the evidentiary error involved was prejudicial and not
harmless, including that there was some uncertainty about whether the abuse had
occurred, that the victim failed to testify, that there was some evidence of the victim’s
recantation, and that the defense strenuously argued allegations of improper coaching
and interviewing techniques. See 119 F.3d at 661. Some of those factors are present
here. Without Dr. Zitzow’s testimony regarding D.D.’s statements, the government
had very little evidence with which to prosecute: no physical evidence, no witnesses
to any abuse, and a victim who would not testify. In light of these circumstances, the
error in admitting Dr. Zitzow’s testimony cannot be said to be harmless, because it was
crucial to the government’s case and thus must have had more than a slight influence
on the verdict. See Beaulieu, 194 F.3d at 921.




                                          -6-
                                            III.

       Sumner contends that the district court erred when it admitted evidence of prior
acts of child molestation under Rule 414, which provides that when a “defendant is
accused of an offense of child molestation, evidence of the defendant’s commission of
another offense . . . is admissible, and may be considered for its bearing on any matter
to which it is relevant.” Fed. R. Evid. 414(a). In Sumner I, we held that the district
court is required to conduct the balancing test set forth in Rule 403 when determining
whether to admit evidence under Rule 414. See 119 F.3d at 661. The evidence in
question involved events that occurred at a party at a private residence within a year
of the events giving rise to this prosecution. Sumner allegedly groped a thirteen-year-
old babysitter’s thigh while sitting next to her on a couch. He then patted a sleeping
seven-year-old girl when he went upstairs to find a place to lie down.

       The district court conducted the Rule 403 balancing analysis and found that the
prior-act evidence was not substantially more prejudicial than probative. We conclude
that the district court did not abuse its discretion in admitting the evidence, for the prior
acts were relatively recent in time and were substantially similar to the charged
assaults, while the prejudice was that which is presented by all propensity evidence in
cases of child sexual abuse. See United States v. LeCompte, 131 F.3d 767, 769-70
(8th Cir. 1997).

        In light of our holding regarding the admission of Dr. Zitzow’s testimony, it is
unlikely that the issue raised by Sumner regarding improper impeachment will arise on
retrial. Likewise, our holding renders moot Sumner’s challenge to the computation of
his sentence.




                                            -7-
                                         IV.

       The judgment of conviction is reversed, and the case is remanded to the district
court for new trial.

      A true copy.

           Attest:

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




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