                UNITED STATES COURT OF APPEALS
                                  FOR THE EIGHTH CIRCUIT

                                       ______________

                                       No. 98-3642SDP
                                       ______________

United States of America,                     *
                                              *
                      Appellee,               *
                                              *
       vs.                                    *    Appeal from the United States District
                                              *    Court for the Central Division of
John Running Horse, Sr.,                           *     South Dakota.
                                              *
                      Appellant.              *

                                         ____________

                                 Submitted: March 12, 1999
                                    Filed: April 27, 1999
                                     _____________

Before BEAM and HEANEY, Circuit Judges, and FENNER,1 District Judge.

FENNER, District Judge.

        Appellant, John Running Horse, Sr., appeals his conviction, after trial by jury,
on ten counts in an eleven count indictment brought against him. The first ten counts
of the indictment against Running Horse dealt with his sexual contact with MN.2 The
eleventh count alleged sexual contact with another individual, SL. Running Horse
was

       1
       The Honorable Gary A. Fenner, United States District Judge for the Western District of
Missouri, sitting by designation.
       2
        MN are not the victim's actual initials.
acquitted on count eleven and convicted on all other counts. Running Horse was
sentenced to several concurrent terms of 370 months and 180 months.

        MN had been living with Running Horse's mother upon placement by Tribal
Social Services. In August of 1993, Running Horse, his then girlfriend, Lisa Searby,
and Running Horse's three minor boys moved in with his mother and MN, staying
until January of 1995. In 1995, Running Horse moved with Ms. Searby and his boys
to another residence. The government alleged that between 1993 and 1997 Running
Horse sexually abused MN when MN was between the ages of 11 and 15. At the time
of trial, Running Horse was 31 years old. Running Horse argues six points of error
on appeal.

       In his first point, Running Horse argues that the district court erred by refusing
to sever the first ten counts of the indictment from the eleventh count. Running Horse
argues that he should have been granted a separate trial on the first ten counts
alleging sexual abuse against MN and the eleventh count alleging sexual abuse
against SL. Running Horse indicates that he wanted to testify on Count XI but not
on Counts I through X.

       Where the offenses are similar in character, occurred over a relatively short
period of time and the evidence overlaps, joinder is ordinarily appropriate. United
States v. McClintic, 570 F.2d 685, 689 (8th Cir. 1978). The trial court has a wide
range of discretion in matters of severance, and will be reversed only upon a finding
of clear prejudice and abuse of discretion. Id.

      Even if the eleventh count had been severed, the evidence of Running Horse's
sexual abuse of SL would have been admissible against Running Horse on the first
ten counts under Fed. R. Evid. 413, which allows evidence of a defendant's other
offenses of sexual assault. Accordingly, Running Horse suffered no prejudice and
there was no

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abuse of discretion by the trial court not severing the first ten counts from the
eleventh count.

       In his second point, Running Horse argues that the trial court erred in allowing
hearsay statements from Kristine Fondness and Nick Jansen. Kristine Fondness was
MN's band teacher and the person to whom MN first reported the sexual abuse by
Running Horse. Nick Jansen was the social worker to whom the case was referred.
The trial court permitted Fondness to testify that MN had reported the sexual abuse
to her and Jansen to testify that the case was referred to him and that he caused MN
to be moved out of the home. When both Fondness and Jansen testified, the trial
court instructed the jury that their testimony was not offered to prove that the matters
reported had occurred.

       Preliminary information concerning the origin of an investigation, admitted
only for that purpose, is not hearsay. United States v. Cruz, 993 F.2d 164 (8th Cir.
1993). The statements in question were properly admitted. A review of the record
reveals that the trial court did not admit the testimony for the truth of the matter
asserted, which would make the statements hearsay, but admitted them as background
information to assist the jury in understanding the origin of the investigation of
Running Horse. The trial court did not err in allowing the testimony of Fondness and
Jansen.

      Running Horse's second point is denied.

       In his third point, Running Horse argues that the trial court erred by allowing
the testimony of Dr. David Kaufman, a clinical psychologist, regarding hearsay
statements of MN and general psychological testimony relating to characteristics of
sexually abused children.




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      Fed. R. Evid. 803(4) provides for the admission of "[s]tatements made for
purposes of medical diagnosis or treatment and describing medical history, or past or




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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." The record reflects that after Dr. Kaufman's qualifications were
established, he was allowed to testify regarding his clinical interview with MN. A
clinical psychologist is allowed to so testify. United States v. Provost, 875 F.2d 172,
177 (8th Cir. 1989).

        Running Horse's argument under this point that Dr. Kaufman should not have
been allowed to testify in regard to characteristics of sexually abused children is
clearly of no avail. In United States v. St. Pierre, 812 F.2d 417, 419-20 (8th Cir.
1987), this Court held that a clinical psychologist may testify to certain traits of
sexually abused children as compared to those exhibited by the victim as long as no
opinion is given as to whether the victim is telling the truth. Similarly, in United
States v. Whitted, 11 F.3d 782, 785 (8th Cir. 1993), this Court enforced the St. Pierre
rule and held that "in the context of child sexual abuse cases, a qualified expert can
inform the jury of characteristics in sexually abused children and describe the
characteristics the alleged victim exhibits." The government gave notice in this case
of its intent to use Dr. Kaufman as an expert. Dr. Kaufman never gave his opinion
as to whether MN was telling the truth. Rather, he recited the characteristics inherent
in sexually abused children and the characteristics that MN exhibited.

      Running Horse's third point is denied.

      In his fourth point, Running Horse argues that the trial court erred by
dismissing juror Delphine LeCompte during the trial.

      A district court's decision to remove or not remove a juror is reviewed for an
abuse of discretion. United States v. Wilcox, 50 F.3d 600, 603 (8th Cir. 1995). The
record clearly establishes that there was no abuse of discretion by the district court
removing juror LeCompte.

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       During the trial, it was reported to the district court that juror LeCompte's
boyfriend, Eugene Smith, informed others that he told his girlfriend, juror LeCompte,
to vote not guilty because he wanted to go home. It was also reported that Smith had
been in a traffic accident driving juror LeCompte's vehicle, that he was intoxicated
and had been arrested for driving under the influence of alcohol, not having a driver's
license, leaving the scene of a property damage accident, and false impersonation
with intent to deceive a police officer.

        Juror LeCompte was questioned about what Smith had said to her and she was
less than clear about her conversation with Smith. LeCompte's lack of clarity was
itself sufficient for the district court to excuse her as well as his opinion on how she
should vote, and the potentially distracting circumstances surrounding Smith's arrest
and damage to LeCompte's vehicle.

       Running Horse's fourth point is denied.

      In his fifth point, Running Horse argues that the district court erred in failing
to grant his motion for judgment of acquittal on Counts III through VI.3 Counts III
through VI related to the years 1994 through 1997 and alleged that Running Horse
engaged in sexual acts with MN by force (18 U.S.C. §2241(a)). Running Horse
argues under this point that the government's evidence was insufficient to show that
Running Horse forced MN to have sex with him. Running Horse argues that the
evidence established that any sexual contact was consensual.




       3
         In his brief, Running Horse argues that it was error for the district court to fail to grant
judgment of acquittal for the reasons argued under this point on Counts I through VI. At oral
argument, Running Horse acknowledged that because his argument here is that there was not
sufficient evidence of force, the argument does not apply to Counts I and II which did not require
any element of force.

                                                 -6-
       When reviewing a defendant's claim of insufficient evidence, the facts are
taken in the light most favorable to the verdict, giving the government the benefit of
all reasonable inferences that might be drawn from the evidence. United States v.
Jones, 990 F.2d 1047, 1048 (8th Cir. 1993). The evidence will be found insufficient
only if it is such that "reasonably minded jurors must have a reasonable doubt as to
the existence of any of the essential elements of the offense." United States v. Powell,
853 F.2d 601, 604 (8th Cir. 1988).

       "Force" is not defined under the sexual abuse statutes. United States v. Jones,
104 F.3d 193, 197 (8th Cir. 1997). However, to establish force, as used in the sexual
abuse context, requires some proof "as is sufficient to overcome, restrain, or injure
a person; or the use of a threat or harm sufficient to coerce or compel submission by
the victim." United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990).

        MN testified that she was afraid of Running Horse. MN stated that Running
Horse had hit her as a form of punishment and that this made her afraid of him. MN
testified that during the relevant period Running Horse abused her physically and
called her names. MN also testified that Running Horse forcefully used his legs to
cause her to spread her legs and that she was afraid when Running Horse used this
force on her. MN testified that she had told Running Horse she did not want to have
sex, but he would pull her toward him and that she would push away. MN testified
that she was scared when Running Horse came to her wanting to have sex, that
Running Horse made her have sex, and that she was afraid he would hurt her.

        Running Horse argues that MN's statements were not always consistent, citing
an FBI report where MN stated that Running Horse never used force in any of their
sexual encounters. However, MN recanted her statement to the FBI and maintained
at trial that Running Horse had used force on her. MN testified that she was scared
when she talked to the FBI, that her statement to the FBI was not accurate, and that
Running Horse had in fact used force on her.

                                          -7-
      The jury is entitled to evaluate the credibility of witnesses, and to weigh the
evidence presented to it. United States v. Rodriquez, 116 F.3d 1225, 1227 (8th Cir.
1997). It cannot be said that no reasonable trier of fact could have believed MN's
explanation of her statement to the FBI and her testimony at trial.

      The evidence at trial was sufficient to establish the element of force. Running
Horse's fifth point is denied.

       In his final point, Running Horse argues that the district court erred by not
sustaining his objection to the imposition of a force enhancement at sentencing.

       U.S.S.G. 2A.1(b)(1) provides for a four level increase of the base offense level
for an offense committed by means set forth in 18 U.S.C. §2241(a) or (b). Running
Horse's convictions under Counts III through VI were pursuant to 18 U.S.C.
§2241(a). Force proven sufficient to obtain a conviction under 18 U.S.C. §2241(a)
will also sustain an enhancement under U.S.S.G. 2A.1(b)(1). United States v.
Bordeaux, 997 F.2d 419, 420 (8th Cir. 1993). The district court assessment of a force
enhancement at sentencing was proper.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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




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