                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-1892
                                    ___________

Jerry Lee Olesen,                         *
                                          *
             Appellant,                   *
                                          *   Appeal from the United States
      v.                                  *   District Court for the
                                          *   District of South Dakota.
Joe Class, Warden,                        *
South Dakota State Penitentiary,          *
                                          *
             Appellee.
                                    ___________

                              Submitted: October 23, 1998

                                   Filed: January 4, 1999
                                    ___________

Before RICHARD S. ARNOLD, WOLLMAN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Jerry Lee Olesen was convicted in a South Dakota court on two counts of
unlawful sexual contact with a child under sixteen, two counts of second-degree rape,
and one count of third-degree rape, based on alleged sexual contact with his daughters,
three-year-old A.T., five-year-old L.Z., and nineteen-year-old L.S. After his
convictions were affirmed, see State v. Olesen, 443 N.W.2d 8 (S.D. 1989), and his
state habeas corpus petition was denied, see Olesen v. Lee, 524 N.W.2d 616 (S.D.
1994), Mr. Olesen filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254.
The district court denied the petition, see Olesen v. Class, 962 F. Supp. 1556 (D. S.D.
1997), and Mr. Olesen appeals. We affirm in part and reverse in part.

                                             I.
        L.Z. did not testify at Mr. Olesen's trial. Dr. Willis Sutliff, a pediatrician,
testified, however, that during his examination of L.Z., she identified Mr. Olesen as the
individual who had sexually abused her. Mr. Olesen maintains that the admission of
L.Z.'s out-of-court statement identifying him as the perpetrator violated his right under
the Sixth Amendment to confront the witnesses against him. See U.S. Const.
amend. VI.

       A hearsay statement is admissible in a criminal trial, despite the admonitions of
the Confrontation Clause, "if it bears adequate 'indicia of reliability.' " Ohio v. Roberts,
448 U.S. 56, 66 (1980), quoting Dutton v. Evans, 400 U.S. 74, 89 (1970) (plurality
opinion). The reliability requirement is satisfied if the relevant statement falls within
a "firmly rooted hearsay exception" or if it is supported by "a showing of particularized
guarantees of trustworthiness." Roberts, 448 U.S. at 66.

       South Dakota maintains that L.Z.'s statement identifying Mr. Olesen falls within
the firmly rooted hearsay exception for statements made for purposes of medical
diagnosis or treatment. See S.D. Codified Laws § 19-16-8, the equivalent of
Fed. R. Evid. 803(4) in all pertinent respects. See White v. Illinois, 502 U.S. 346, 355-
56, 355-56 n.8 (1992) (medical diagnosis/treatment exception is firmly rooted hearsay
exception). For this proposition, South Dakota relies on our decision in United States
v. Renville, 779 F.2d 430, 436 (8th Cir. 1985), in which we held that statements by a
child abuse victim to a physician that the abuser was a member of the victim's
immediate family may properly be admitted under this hearsay exception. See also
State v. Olesen, 443 N.W.2d at 9, and State v. Garza, 337 N.W.2d 823, 824-25 (S.D.
1983) (per curiam), both relying on Eighth Circuit case law in holding identifications
by child abuse victims admissible under S.D. Codified Laws § 19-16-8.

                                            -2-
       We recognized in Renville and in later decisions, however, that such statements
are admissible only when the prosecution is able to demonstrate that the victim's
motive in making the statement was consistent with the purpose of promoting
treatment -- that is, "where the physician makes clear to the victim that the inquiry into
the identity of the abuser is important to diagnosis and treatment, and the victim
manifests such an understanding." Renville, 779 F.2d at 438. Such a rule is consistent
with the rationale underlying the hearsay exception for medical treatment and
diagnosis, because the exception "is based on the belief that a person seeking medical
treatment is unlikely to lie to a doctor she wants to treat her, since it is in her best
interest to tell the truth." Ring v. Erickson, 983 F.2d 818, 820 (8th Cir. 1993). In other
words, the rule is bottomed upon the premise that a patient's "selfish motive," id., in
receiving proper treatment guarantees the trustworthiness of the statements made to her
physician. Id.; see also United States v. White, 11 F.3d 1446, 1449-50 (8th Cir. 1993).

       We believe that the prosecution in this case failed to establish that L.Z.'s frame
of mind at the time of Dr. Sutliff's examination was that of a patient seeking medical
treatment. Dr. Sutliff testified only that he explained to L.Z. "what was going to
happen," presumably an explanation of the physical examination itself. There is no
evidence in the record that he explained to L.Z. that his questions regarding the identity
of her abuser were important to diagnosis or treatment, or that L.Z., who was only five
years old at the time, understood the medical significance of being truthful in
identifying her abuser to her doctor. Because the prosecution failed to establish L.Z.'s
strong motive to tell the truth to Dr. Sutliff in order to promote treatment, under our
case law L.Z.'s statement to Dr. Sutliff was not properly admitted.

                                            II.
       South Dakota also maintains that L.Z.'s statement to Dr. Sutliff identifying
Mr. Olesen as her abuser possessed sufficient "particularized guarantees of
trustworthiness," Roberts, 448 U.S. at 66, to survive a Confrontation Clause objection.
In determining whether L.Z.'s statement was properly admitted on this ground, we

                                           -3-
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. See Idaho v. Wright, 497 U.S. 805, 822-23 (1990).

        South Dakota directs our attention to certain facts that it believes tend to
establish the trustworthiness of L.Z.'s statement. First, it points out that Dr. Sutliff had
expertise in the diagnosis of child abuse and that he did not use leading questions in
eliciting L.Z.'s statement. Second, it points to Dr. Sutliff's testimony that L.Z. had a
better knowledge of human anatomy than the average five-year-old and that she did not
waver in her statement identifying Mr. Olesen as her abuser. Third, it contends that
L.Z.'s young age suggests that she lacked any reason to accuse Mr. Olesen falsely and
therefore provides further evidence of the trustworthiness of her statement identifying
him as her abuser.

       In support of its position, South Dakota cites several cases in which we have
relied on similar facts in holding that hearsay statements by child victims identifying
their abusers possessed sufficient guarantees of trustworthiness to overcome a
Confrontation Clause objection to their admission. See United States v. N.B., 59 F.3d
771, 775 (8th Cir. 1995); United States v. Grooms, 978 F.2d 425, 428 (8th Cir. 1992);
Dana v. Dep't of Corrections, 958 F.2d 237, 239 (8th Cir. 1992), cert. denied, 505 U.S.
1225 (1992); and McCafferty v. Leapley, 944 F.2d 445, 451-52 (8th Cir. 1991), cert.
denied, 503 U.S. 911 (1992). We believe, however, that the hearsay statements in
those cases were significantly more trustworthy and raised fewer Confrontation Clause
concerns than L.Z.'s statement identifying Mr. Olesen.

       First, the child victims in N.B. and Grooms testified at trial, so the defendants
in those cases had the opportunity to confront and cross-examine their accusers. See
N.B., 59 F.3d at 775, and Grooms, 978 F.2d at 427-28. We have recognized that the
Confrontation Clause is generally satisfied when the child victims whose hearsay
statements have been admitted actually appear in court and testify in person. See, e.g.,

                                            -4-
United States v. Spotted War Bonnet, 933 F.2d 1471, 1473 (8th Cir. 1991), cert. denied,
502 U.S. 1101 (1992). In Mr. Olesen's case, however, L.Z. did not testify at trial, and
the Confrontation Clause of course presents far greater obstacles to admitting hearsay
statements in such circumstances. See id.

       South Dakota's reliance on Dana and McCafferty is likewise misplaced. In both
of those cases, we found the children's statements trustworthy in part because the
children provided graphic, detailed descriptions of the alleged abuse, thereby lending
credibility to their statements identifying their abusers. See Dana, 958 F.2d at 239, and
McCafferty, 944 F.2d at 450-52. By contrast, Dr. Sutliff's testimony at trial indicates
that L.Z. said very little during the interview and communicated primarily by nodding
her head in response to Dr. Sutliff's questions:

      I asked [L.Z.] if she had ever been hurt around her bottom, and she
      replied that her daddy had hurt her. I then asked her where and she
      pointed to the vaginal area. I then asked if someone had, if her father had
      put his fingers in her and she nodded affirmatively. I then asked if it hurt
      and she again indicated affirmatively that it had hurt. ... I asked her if
      she had, if he had placed [his penis] in her and she indicated affirmatively
      again. ... She did not elaborate in detail, it was just, she did say that she
      had been hurt and when asked about the area, indicated ... her vaginal
      area and nodded as I asked the questions.

We believe that this account of Dr. Sutliff's conversation with L.Z. falls far short of the
"particularized guarantees of trustworthiness," Roberts, 448 U.S. at 66, demonstrated
in our earlier cases.

       South Dakota calls our attention to a number of other cases discussing the
admissibility of hearsay statements by child victims identifying their abusers. Those
cases are inapposite, however, either because the defendants in those cases did not
raise a claim based on the Confrontation Clause, see, e.g., Lovejoy v. United States,


                                           -5-
92 F.3d 628, 631-32 (8th Cir. 1996), and Renville, 779 F.2d at 435-41, or because we
held that the hearsay statements at issue fell within a firmly rooted hearsay exception
and thus did not violate the Confrontation Clause, see, e.g., United States v. Balfany,
965 F.2d 575, 580 (8th Cir. 1992). In addition, several of the earlier cases that South
Dakota relies on are of dubious value after the Supreme Court's decision in Wright,
497 U.S. at 822-23, because they "did not subject the statements in question to the
rigorous and carefully structured Confrontation Clause analysis that is now required
under Wright." Spotted War Bonnet, 933 F.2d at 1473; see also United States v.
Dorian, 803 F.2d 1439, 1444-45, 1447 (8th Cir. 1986) (relying on corroborating
evidence now impermissible under Wright).

       In short, after carefully reviewing the record in this case, we believe that L.Z.'s
statement to Dr. Sutliff lacked sufficient guarantees of trustworthiness to be admissible
under Wright. The evidence produced by South Dakota demonstrates, at most, that
L.Z. was a victim of sexual abuse; it does not ensure that her statement identifying
Mr. Olesen as the abuser was itself sufficiently trustworthy to be admitted in the face
of a Confrontation Clause objection. The admission of this statement at trial therefore
violated Mr. Olesen's constitutional rights.

                                            III.
       While we have concluded that Mr. Olesen's rights under the Confrontation
Clause were violated, he is not entitled to relief if the error in admitting the offending
statement was harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 681-84 (1986).
In most habeas corpus cases, we review the record to decide "whether the error 'had
substantial and injurious effect or influence in determining the jury's verdict.' " Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993), quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946). In this case, however, because the state courts did not review
the admission of L.Z.'s statement for harmless error, we review the constitutional
violation under the standard set forth in Chapman v. California, 386 U.S. 18, 24
(1967). See Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993), cert. denied,

                                           -6-
511 U.S. 1060, 1063 (1994). Under Chapman, 386 U.S. at 24, the error in admitting
L.Z.'s statement identifying Mr. Olesen was harmless only if it is clear beyond a
reasonable doubt that its admission did not contribute to the jury's guilty verdict. " 'The
question is whether there is a reasonable possibility that the evidence complained of
might have contributed to the conviction.' " Id. at 23, quoting Fahy v. Connecticut, 375
U.S. 85, 86-87 (1963). If so, the error in admitting the evidence was not harmless.

       The jury, as we have said, convicted Mr. Olesen of five separate offenses: one
count of unlawful sexual contact with L.Z., one count of unlawful sexual contact with
A.T., two counts of second-degree rape of L.S., and one count of third-degree rape of
L.S. In determining whether the admission of L.Z.'s statement identifying Mr. Olesen
was harmless error, we consider separately the impact of that statement on the jury's
verdict for each of these offenses.

         After carefully reviewing the record in this case, we cannot say that the
admission of L.Z.'s statement was harmless beyond a reasonable doubt with regard to
Mr. Olesen's conviction for unlawful sexual contact with her. We believe, in fact, that
it is clear that L.Z.’s statement was important evidence in the prosecution’s case against
Mr. Olesen and that the statement very likely contributed to his conviction for unlawful
sexual contact with her.

        The only other testimony at trial identifying Mr. Olesen as L.Z.'s abuser was that
of L.S., who testified that Mr. Olesen had sexually abused her on three occasions and
that she had witnessed him sexually abusing her younger sisters on one occasion. On
cross-examination, however, L.S. admitted that her testimony at trial differed from the
account of sexual abuse that she had offered in her grand jury testimony, and she stated
that her grand jury testimony was only “half-way truth.” L.S.’s testimony during the
trial, moreover, was internally inconsistent: She initially testified that on May 20, 1985,
she had accompanied her father to a bar in a nearby town and that he had raped her on
the way home that evening. After several defense witnesses testified that L.S. had


                                           -7-
attended a fourth sister’s junior high school graduation with other family members that
evening, however, L.S. took the stand again and testified that the rape had in fact
occurred the next day.

       In addition to pointing out the inconsistencies in L.S.’s testimony, moreover,
Mr. Olesen's trial counsel attacked L.S.’s credibility by introducing evidence of her
drug and alcohol abuse, numerous suicide attempts, and several hospital stays for
psychiatric care. Numerous witnesses, including Mr. Olesen’s wife and three of his
other children, denied that any sexual abuse had occurred and attacked L.S.'s credibility
and reputation for veracity.

       In short, we believe that it is clear from the record that the credibility of L.S.,
who presented the only evidence of Mr. Olesen's abuse of L.Z. other than that in
Dr. Sutliff's testimony, was in question throughout this trial. L.Z.'s statement
identifying Mr. Olesen as her abuser was therefore powerful evidence against him. The
state, moreover, evidently understood the weight that the jurors would likely give to
L.Z.'s statement, because the prosecutor relied heavily on that statement in closing
argument.

       South Dakota maintains that the jury could have convicted Mr. Olesen of
unlawful sexual contact with L.Z. on the strength of L.S.'s testimony alone, absent
L.Z.'s corroborating statement identifying Mr. Olesen as her abuser. We agree that
L.S.'s testimony alone would have been sufficient, as a matter of law, to obtain
Mr. Olesen's conviction for unlawful sexual contact with L.Z. When we review
constitutional violations for harmless error, however, the test is not “whether there was
sufficient evidence on which the petitioner could have been convicted without the
evidence complained of. The question is whether there is a reasonable possibility that
the evidence complained of might have contributed to the conviction." Fahy, 375 U.S.
at 86-87.




                                           -8-
       We think, for the reasons already indicated, that L.Z.’s statement identifying
Mr. Olesen as her abuser was important evidence that significantly strengthened the
prosecution’s case against him, and thus we cannot conclude beyond a reasonable doubt
that the jury did not rely upon L.Z.'s statement in returning a guilty verdict on the count
with respect to L.Z. The error in admitting the statement was therefore not harmless,
and Mr. Olesen is entitled to a writ of habeas corpus on his conviction for unlawful
sexual contact with L.Z.

       We are of the view, however, that the erroneous admission of L.Z.'s hearsay
statement had no appreciable effect on the jury's guilty verdicts on the four other
counts. In her conversation with Dr. Sutliff, L.Z. stated only that Mr. Olesen had
sexually abused her; she made no mention of the alleged sexual abuse of her sisters.
L.Z.'s hearsay statement identifying Mr. Olesen as her abuser was therefore irrelevant
to the charges against Mr. Olesen for the sexual abuse of A.T. and L.S.

       It is, of course, the duty and responsibility of the jury to keep separate the
evidence regarding the offenses with which a defendant is charged. In fact, the trial
court in Mr. Olesen's case instructed the jury on this duty, and "juries are presumed to
follow their instructions." Richardson v. Marsh, 481 U.S. 200, 211 (1987). We
therefore must assume that the jury did not consider L.Z.'s statement identifying
Mr. Olesen when it returned guilty verdicts on the counts of sexual abuse of A.T. and
L.S. and that it convicted Mr. Olesen on those counts based solely on the testimony of
L.S., as it was of course permitted to do. We conclude, accordingly, that the admission
of L.Z.'s hearsay statement did not contribute to the jury's verdicts on the four counts
with respect to A.T. and L.S., and its admission was thus harmless error as to those
counts.

                                         IV.
      Mr. Olesen raises several claims of ineffective assistance of counsel. First, he
maintains that he was prejudiced by his trial counsel's failure to object to the opinion


                                           -9-
testimony of the prosecution's rebuttal witness, Angini Tapscott, a psychologist who
had counseled L.S. Ms. Tapscott was allowed, without objection, to offer her opinion
that L.S. would not fabricate a story involving sexual abuse. Mr. Olesen contends that
his trial counsel should have objected to this testimony because it impermissibly
infringed upon the jury's exclusive function of determining L.S.'s credibility. See State
v. Thomas, 381 N.W.2d 232, 239 (S.D. 1986); see also United States v. Azure, 801
F.2d 336, 339-41 (8th Cir. 1986).

      We agree with Mr. Olesen that given the state of South Dakota's evidentiary rules
and case law at the time of his trial, a reasonably prudent lawyer would have objected
to Ms. Tapscott's opinion testimony. We do not believe, however, that that deficient
performance by Mr. Olesen's trial counsel rendered "the result of the trial unreliable or
the proceeding fundamentally unfair," as is required before we can set aside a
conviction on ineffective assistance of counsel grounds. Lockhart v. Fretwell, 506 U.S.
364, 372 (1993).

        Ms. Tapscott's opinion as to L.S.'s credibility was offered on rebuttal after the
defense had introduced a parade of witnesses who attacked L.S.'s credibility.
Ms. Tapscott's testimony was quite brief, and Mr. Olesen's trial counsel effectively
cross-examined her. Ms. Tapscott's testimony concerning L.S.'s credibility, moreover,
was not mentioned by either the prosecution or the defense in closing arguments, and
the trial court instructed the jury that it was the sole judge of the witnesses' credibility.
We conclude that the failure of Mr. Olesen's trial counsel to object to Ms. Tapscott's
opinion testimony did not render the trial and verdict unfair or unreliable, and
Mr. Olesen therefore is not entitled to relief on this ground.

        Mr. Olesen raises two additional claims of ineffective assistance of counsel.
First, he contends that his trial counsel was constitutionally ineffective because he
failed to contact potential defense witnesses and adequately to prepare those witnesses
who were called to testify on Mr. Olesen's behalf. Second, he maintains that his trial


                                           -10-
counsel did not adequately cross-examine L.S. about the inconsistencies between her
testimony before the grand jury and her testimony at trial. After carefully reviewing
the record, we believe that trial counsel's deficient performance, if any, did not render
"the result of the trial unreliable or the proceeding fundamentally unfair," id.
Mr. Olesen therefore is not entitled to habeas relief on these ineffective assistance of
counsel claims.

                                              V.
        For the foregoing reasons, we reverse the district court's denial of habeas corpus
relief and remand with instructions to grant Mr. Olesen's petition for a writ of habeas
corpus on his conviction with respect to unlawful sexual contact with L.Z., and we
affirm the district court's denial of habeas corpus relief as to the remaining counts. We
remand the case to the district court for the entry of a proper judgment.

      A true copy.

             Attest:

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




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