                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        SEP 15 1998
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                      No. 97-2311
v.

ROY ALLEN PACHECO,

             Defendant-Appellant.




                  Appeal from the United States District Court
                        for the District of New Mexico
                          (D.C. No. CR-96-663-MV)


Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Appellant.

Samuel L. Winder, Assistant United States Attorney, Albuquerque, New Mexico,
(John J. Kelly, United States Attorney, with him on the brief), for Appellee.


Before MURPHY, HOLLOWAY, and MAGILL *, Circuit Judges.


MURPHY, Circuit Judge.



      *
        The Honorable Frank J. Magill, from the Eighth Circuit Court of Appeals,
sitting by designation.
      Defendant Roy Allen Pacheco was indicted on two counts of aggravated

sexual abuse of a child while in Indian Country in violation of 18 U.S.C. §§ 1153,

2241(c), 2246(2)(A), 2246(2)(C). 1 After a jury trial, Pacheco was found guilty of

the digital penetration count and was acquitted of the penile penetration count.

Pacheco appeals, arguing the district court erred by refusing to give a child

witness instruction and by admitting certain testimony of two physicians.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.

                               I. BACKGROUND

      The evidence at trial established that Jane Doe was sexually abused when

she was five years old. Jane Doe is the daughter of Pacheco’s former girlfriend,

Lurleen Enjady. Ms. Enjady had a severe alcohol problem and in early 1996

essentially abandoned Jane Doe and her sister at the Pacheco residence 2 where

Pacheco lived with his parents and where the abuse allegedly occurred.

      Cynthia Begay, a social worker, testified that on March 6, 1996, she

removed Jane Doe and her younger sister from the Pacheco home. On March 8,


      1
        The abuse allegedly occurred at a residence located on the Santo Domingo
Pueblo Indian Reservation. Pacheco is a member of the Santo Domingo Pueblo
tribe and the victim is a member of the Mescalero Apache Indian tribe.
      2
       It is not clear from the testimony at trial exactly when Lurleen Enjady
dropped off her children at the Pacheco residence. It is also unclear how long the
children stayed at the Pacheco residence during 1996. Ms. Enjady apparently
could not be located at the time of trial and did not testify.

                                         -2-
Jane Doe’s aunt took her to the Mescalero Indian Service Hospital where Dr.

Verlyn Corbett examined her.

      Dr. Corbett testified that he had previously examined Jane Doe in

December 1994 for signs of physical and sexual abuse. He stated that Jane Doe

told him she had been hit in the front of her body and had been spanked on the

back side of her body. Dr. Corbett further testified that Jane Doe identified

“Roy” as the person who hit her. Dr. Corbett did not observe any evidence of

physical trauma to Jane Doe at the time of his examination. Dr. Corbett testified

that when he examined Jane Doe in March 1996, she again told him that she had

been hit on the front side of her body and that she had been spanked on her back

side. Although Dr. Corbett did not observe any evidence of physical abuse, the

sexual abuse examination revealed an abnormality in the appearance of her

hymen. Consequently, Dr. Corbett initiated a consultation with Dr. Renee

Ornelas for a more comprehensive sexual exam.

      Dr. Ornelas, who was the director of a program that provides medical

evaluations of suspected sexual abuse victims, examined Jane Doe on April 8,

1996. A pelvic examination revealed a defect or loss of tissue to the hymen,

which Dr. Ornelas concluded was the result of sexual abuse due to vaginal

penetration. Dr. Ornelas testified that she was “concerned about [Jane Doe’s]

safety” and told her that she knew “somebody hurt [her].” As Jane Doe was


                                         -3-
getting dressed, she said, “Hands.” Dr. Ornelas asked, “Whose hands?” Jane Doe

replied, “Roy.”

      Jane Doe, who was six years old at the time of trial, also testified. She

stated that “Roy” “hurt” her “with his hands” while she was staying at the

Pacheco residence. When asked where he touched her, she pointed to the area

between the legs of an anatomically correct doll.

      The jury returned a guilty verdict on the digital penetration count and a not-

guilty verdict on the penile penetration count. Pacheco was sentenced to 108

months in prison. He asserts two arguments on appeal: (1) the district court erred

by refusing to give a child witness instruction and (2) the district court erred by

admitting certain testimony of Drs. Corbett and Ornelas.

                                 II. DISCUSSION

      A.     Jury Instructions

      Pacheco argues the district court erred by refusing to give a special jury

instruction regarding the credibility of Jane Doe, the child victim/witness. This

court reviews the district court’s refusal to give the tendered instruction for abuse

of discretion. See Vining v. Enterprise Fin. Group, Inc., Nos. 96-6254, -6267,

-6082, 1998 WL 416869, at * 7 (10th Cir. July 22, 1998). We examine the jury

instructions as a whole to determine whether the instructions “adequately stated

the governing law and provided the jury with an accurate understanding of the


                                          -4-
issues and standards applicable.” United States v. Grey, 56 F.3d 1219, 1222 (10th

Cir. 1995). The question of whether a jury was properly instructed is a question

of law which is reviewed de novo. See Vining, 1998 WL 416869, at *7.

       Pacheco requested that the following child witness instruction be submitted

to the jury:

             You have heard the testimony of Jane Doe, and you may be
       wondering whether her young age should make any difference. What
       you must determine, as with any witness, is whether that testimony is
       believable. Did she understand the questions? Does she have a good
       memory? Is she telling the truth?
             Because young children may not fully understand what is
       happening here, it is up to you to decide whether Jane Doe
       understood the seriousness of her appearance as a witness at this
       criminal trial. In addition, young children may be influenced by the
       way that questions are asked. It is up to you to decide whether Jane
       Doe understood the questions asked of her. Keep this in mind when
       you consider Jane Doe’s testimony.

The district court refused to give the proposed instruction and instead gave the

following general witness credibility instruction:

       You are the sole judges of the credibility or believability of each
       witness and the weight to be given to that witness’[s] testimony.
              An important part of your job will be making judgments about
       the testimony of all of the witnesses who testified in this case,
       including the child witness. You should decide whether you believe
       what each person had to say, and how important that testimony was.
       In making that decision, I suggest you ask yourselves a few
       questions.
              Did the person impress you as honest? Did the witness have a
       personal interest in the outcome of the case? Did the witness have
       any particular reason not to tell the truth? Did the witness have any
       relationship with either the Government or the Defense? Did the
       witness seem to have a good memory? Did the witness have the

                                         -5-
      opportunity and ability to understand the questions clearly and
      answer them directly? Did the witness’[s] testimony differ from the
      testimony of other witnesses?
            These are a few of the considerations that will help you
      determine the accuracy of what each witness said.

      In rejecting Pacheco’s proposed child witness instruction, the district court

noted that “most of it is identical to the general [witness credibility] instruction.”

According to the district court, the only significant difference between the

proposed instruction and the general credibility instruction was that the proposed

instruction added “a concept that young children may not fully understand what is

happening.” Although the district court noted this was a “legitimate issue,” the

court nonetheless concluded it could not give the proffered instruction because it

was “not one which [it had] the authority to instruct the jury.”

      Pacheco argues the district court erroneously concluded that it did not have

authority to give the proposed child witness instruction. In Guam v. McGravey,

14 F.3d 1344 (9th Cir. 1994), the Ninth Circuit concluded that whether to give a

child witness instruction in a particular case should be entrusted to the sound

discretion of the district court. See id. at 1348-49 (rejecting defendant’s argument

that child witness instruction must be given whenever child testifies in sexual

abuse case and holding district court did not abuse its discretion by refusing to

give instruction). We agree with the reasoning in McGravey and conclude that a

district court has the discretion to determine in a particular case whether the jury


                                          -6-
should be specially instructed regarding the credibility of a child witness and, if

so, the nature of that instruction. See id.; see also Grey, 56 F.3d at 1222 (noting

district court “‘has substantial discretion in formulating [jury] instructions, so

long as they are correct statements of the law and adequately cover the issue

presented’” (quoting United States v. Vasquez, 985 F.2d 491, 496 (10th Cir.

1993))).

      Although the district court erroneously concluded it did not have authority

to give a proposed child witness instruction, 3 this does not end our inquiry. We

must determine whether the jury instructions as a whole “sufficiently cover[ed]

the issues.” Vining, 1998 WL 416869, at * 7.

      Contrary to Pacheco’s contentions, the general witness credibility

instruction provided the jury with adequate guidance in evaluating Jane Doe’s

testimony. The instruction emphasized that it was the jury’s responsibility to

carefully scrutinize the credibility of all the witnesses. Indeed, in directing the

jury to judge the credibility of the witnesses, the instruction specifically referred

to the “child witness.” As the district court recognized, the general credibility

instruction directly addressed the majority of concerns expressed in the proposed

child witness instruction. We therefore conclude the jury instructions as a whole



      3
       We express no opinion on the specific content of the child witness
instruction offered in this case.

                                          -7-
adequately conveyed the governing law and sufficiently apprised the jury of the

pertinent issues. Cf. McGravey, 14 F.3d at 1349 (“The proffered child witness

instruction would have added nothing to the jury’s ability to understand and . . .

evaluate the credibility of the child . . . .”). Accordingly, we reject Pacheco’s

claim of error based on the jury instructions. 4

      B.     Physician Testimony

      Pacheco argues the district court erred by admitting the testimony of two

physicians, Drs. Corbett and Ornelas, regarding Jane Doe’s statements about the

alleged incident of abuse and the identity of the alleged abuser. Pacheco claims

the testimony was inadmissible hearsay. Because Pacheco did not object at trial

to the testimony of the physicians, we review the district court’s admission of the

testimony for plain error. See United States v. Martinez, 76 F.3d 1145, 1150

(10th Cir. 1996) (stating that in absence of timely objection, evidentiary rulings

are reviewed only for plain error).



      4
       This court notes that because the child victim testified in this case, defense
counsel had the opportunity to cross-examine her at length regarding her ability to
appreciate the difference between the truth and a lie; whether her testimony was
influenced by adults such as the prosecutor and the investigator; and whether she
understood why she was in court testifying. In addition, defense counsel had the
opportunity during closing arguments to question these aspects of the child’s
testimony. Cf. Guam v. McGravey, 14 F.3d 1344, 1349 (9th Cir. 1994)
(suggesting that “time-honored methods of educating a jury on issues of
credibility,” such as cross-examination and argument, may be more effective than
child witness instruction).

                                          -8-
      As discussed above, Dr. Corbett testified that he had examined Jane Doe in

December 1994 and that during the examination she identified “Roy” as the

person who hit her on the front side of her body and spanked her on the back side.

Dr. Ornelas testified that after her examination of Jane Doe in March 1996, Jane

Doe told her “Roy” had hurt her with his “hands.”

      The government contends the physicians’ statements are admissible under

Rule 803(4) of the Federal Rules of Evidence, which provides that the following

statements are not excluded by the hearsay rule: “Statements 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 pertinent to diagnosis or

treatment.” Fed. R. Evid. 803(4). The rationale behind the Rule 803(4) exception

is that because a patient’s medical care depends on the accuracy of the

information she provides, the patient has a selfish motive to be truthful;

consequently, a patient’s statements to her physician are likely to be particularly

reliable. See United States v. Tome, 61 F.3d 1446, 1449 (10th Cir. 1995); United

States v. Joe, 8 F.3d 1488, 1493-94 (10th Cir. 1993); see also Fed. R. Evid.

803(4) advisory committee’s note.

      Pacheco asserts this rationale is suspect in cases involving young children

because they may not understand the importance of telling the truth when meeting


                                         -9-
with a doctor and because parents almost always initiate the medical consultation.

Pacheco contends that in this case, no evidence was presented showing that Jane

Doe understood she was speaking with a doctor when she met with Drs. Corbett

and Ornelas. Further, according to Pacheco, there was no evidence that anyone

advised Jane Doe of the special need for truthfulness. Pacheco argues that

because the trustworthiness guarantee underlying Rule 803(4) was absent in this

case, the rule cannot serve as a proper basis for admission of the physicians’

testimony.

      We have already rejected this argument. In United States v. Norman T.,

129 F.3d 1099 (10th Cir. 1997), cert. denied, 118 S. Ct. 1322 (1998), the

defendant, who was convicted of child sexual abuse, argued that the child

victim’s statements regarding the alleged abuse to her physician should not be

admissible under Rule 803(4) “because the victim did not understand the nature of

her relationship with the medical personnel, thereby undermining the likelihood

of credibility upon which the exception is based.” 5 Id. at 1105. In rejecting the

defendant’s argument, the court noted that the defendant had cited no

authoritative law supporting his contention. See id. To the contrary, the court



      5
        The defendant in Norman T. had made a timely objection to the admission
of the physician’s testimony. See United States v. Norman T., 129 F.3d 1099,
1105 (10th Cir. 1997), cert. denied, 118 S. Ct. 1322 (1998). The court therefore
reviewed the district court’s evidentiary ruling for abuse of discretion. See id.

                                        -10-
concluded that case law from the Supreme Court and this circuit suggested

otherwise. See id. (citing White v. Illinois, 502 U.S. 346, 356 (1992) and United

States v. Tome, 61 F.3d 1446, 1449-51 (10th Cir. 1995)). The court therefore

declined to create a presumption that Rule 803(4) is inapplicable to a child’s

statements to her physician. See id. The court also noted that the defendant had

failed to point to any actual evidence to show the victim did not understand she

was seeking medical treatment. See id. Finally, the court noted that the victim

had testified at trial and was subject to cross-examination, thereby “ensur[ing] the

fairness and integrity of the proceedings.” Id. at 1106. The court therefore

concluded the district court did not abuse its discretion in admitting the

physician’s testimony pursuant to Rule 803(4).

      As in Norman T., Pacheco has not pointed to any actual evidence indicating

that Jane Doe did not understand she was being examined by doctors and needed

to be truthful in her discussions with them. In fact, Dr. Ornelas testified that

when she meets with a child who is being examined for sexual abuse, she

interviews the child upfront and explains “why they are there.” After the

interview but before the actual medical exam, either she or the nurse shows the




                                         -11-
child around the exam room, explains what the medical instruments are, and

discusses the procedure. 6

      Moreover, the child victim testified in this case and was subject to cross-

examination. Defense counsel therefore had the opportunity to question Jane Doe

regarding the circumstances surrounding her statements to the physicians. This

court therefore rejects Pacheco’s argument that because there was no evidence

showing Jane Doe appreciated the necessity for truthfulness when speaking with

Drs. Corbett and Ornelas, the physicians’ testimony was not admissible under

Rule 803(4). See id. at 1105-06 (concluding district court acted within its

discretion in admitting physician testimony); see also Joe, 8 F.3d at 1494 n.5

(rejecting rule requiring inquiry into patient’s motive for making statements in

determining admissibility of statements under Rule 803(4) and stating that “the

rule itself has built-in guarantees that assure the trustworthiness of a statement

made for purposes of medical diagnosis or treatment”); United States v. George,

960 F.2d 97, 100 (9th Cir. 1992) (noting that in determining admissibility of

child’s statements under Rule 803(4), “the age of the child and her other personal

characteristics go to the weight of the hearsay statements rather than their

admissibility”).




      In this case, Jane Doe told Dr. Ornelas about the abuse after the medical
      6

examination was complete.

                                         -12-
      Pacheco also argues the district court erred by admitting the portion of the

physicians’ statements identifying him as the alleged abuser. Both Dr. Corbett

and Dr. Ornelas testified Jane Doe told them during their examinations that “Roy”

was the individual who had hurt her. Pacheco acknowledges circuit precedent

holding that a child’s statement to a physician identifying the person who caused

the injuries is admissible under Rule 803(4) if the alleged abuser was a member of

the victim’s family or household. See Tome, 61 F.3d at 1450 (concluding child

victim’s statements to her doctors identifying her father as her abuser were

admissible under Rule 803(4)); Joe, 8 F.3d at 1495 (stating that in domestic

sexual abuse cases, “[t]he physician generally must know who the abuser was in

order to render proper treatment because the physician’s treatment will

necessarily differ when the abuser is a member of the victim’s family or

household”). Pacheco summarily asserts, however, that he was not a member of

Jane Doe’s family or household, and therefore Jane Doe’s identification of him as

the abuser was inadmissible.

      This court rejects Pacheco’s narrow reading of the term “household.”

Although Pacheco was not Jane Doe’s natural father, he had an intermittent

relationship with her mother. Though exact dates were never firmly established,

the evidence at trial showed that Jane Doe often stayed at the Pacheco residence

and was living with Pacheco and his parents when the abuse occurred. Cynthia


                                        -13-
Begay, a social worker, testified that she removed Jane Doe and her younger

sister from the Pacheco residence on March 6, 1996. Irma Pacheco, Pacheco’s

mother, testified that Jane Doe and her mother spent approximately four months

each year at the Pacheco residence. She further testified that Jane Doe stayed at

her house for a few weeks during January and February 1996. Pacheco’s father

Matthew also testified that Jane Doe occasionally stayed at the Pacheco residence.

Pacheco’s sister Noreen, who lived with her parents, testified that Jane Doe

stayed at their house during March 1996. Finally, Pacheco himself testified that

Jane Doe and her mother stayed at the Pacheco residence approximately four

months each year and that Jane Doe stayed there during January and March 1996.



      Contrary to Pacheco’s contentions, the evidence presented at trial

established that Jane Doe was a member of Pacheco’s household. That Jane Doe

may not have spent each and every day at the Pacheco residence is irrelevant.

What is relevant is that Jane Doe’s relationship with Pacheco was such that his

identity as her abuser was reasonably pertinent to her course of treatment. Cf.

Joe, 8 F.3d at 1495 (holding woman’s statement to her physician that her

husband, from whom she was separated, raped her was admissible and stating that

“abuser’s identity is admissible under Rule 803(4) where the abuser has such an

intimate relationship with the victim that the abuser’s identity becomes


                                        -14-
‘reasonably pertinent’ to the victim’s proper treatment”). Drs. Corbett and

Ornelas testified that they questioned Jane Doe regarding the incidents of abuse

and the identification of her abuser for the purpose of aiding in their diagnosis

and treatment. Therefore, under the reasoning set forth in Tome and Joe, the

district court did not err in admitting Jane Doe’s statements to Drs. Corbett and

Ornelas identifying Pacheco as her abuser. See Tome, 61 F.3d at 1449-50; Joe, 8

F.3d at 1493-95.

      This court therefore rejects Pacheco’s claim of error based on the district

court’s admission of the physicians’ testimony of Jane Doe’s statements

concerning the incidents of abuse and her identification of Pacheco as the person

who abused her.

                                III. CONCLUSION

      For the reasons discussed above, the judgment of the United States District

Court for the District of New Mexico is AFFIRMED.




                                         -15-
