US v. Kootswatewa, No. 16-10228 (3-23-18)(Warford w/Wallace & Sands)(Note: this is an AZ FPD case).

The 9th affirms convictions for the agg sexual abuse of a developmentally delayed child and a felony offense against a child while a registered sex offender.

In affirming, the 9th rejects two evidentiary issues and one misconduct allegation. At trial, the defense argued misidentification and contended that hearsay statements allowed were error. The 9th held that the admission of statements to a nurse practitioner were allowed under the medical diagnosis exception. Adequate foundation was laid. The 9th recognizes that some courts do not allow the identification of the perpetrator under this exception. However, the 9th does.

The victim’s prior statements to the officer, made soon after the attack, were admissible to rebut the defense attack that the statement had been coached by the mother. Although there were differences between the testimony and the statement, the prior statement was proper as it rebutted the charge the entire episode was fabricated. 

In closing, the prosecutor did not improperly assume the voice of the victim. The prosecutor started with a paraphrase, but quickly identified the source.  The prosecutor did say that the victim stated the defendant “lured” her to the trailer.  The victim actually stated that the defendant “took” her to the trailer. The error was harmless.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/23/16-10228.pdf