Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^* 

Melvin Little appeals his rape conviction, 18 U.S.C. §§ 1153, 2031. He challenges several evidentiary rulings and the adequacy of the jury instructions. We affirm the conviction.

Little contends the district court erred by admitting over his hearsay objection Dolores Verdugo's out of court statement to Lucinda Newman that "she just got raped by Melvin Little." The district court's decision to admit evidence over a hearsay objection is reviewed for abuse of discretion. United States v. Cowley, 720 F.2d 1037, 1040 n. 1 (9th Cir. 1983). The court of appeal may affirm the district court's ruling on any basis presented in the record. Trerice v. Pedersen, 769 F.2d 1398, 1400 (9th Cir. 1985). Although the district court admitted the statement as non-hearsay, the proper basis for the statement's admission is the excited utterance exception to the hearsay rule. See Fed.R.Evid. 803(2). The record supports the conclusion that Verdugo was suffering from the stress of the assault when she made the statement. The district court did not abuse its discretion by receiving the statement.

Little also contends his sixth amendment right to cross-examination was violated by admission of Verdugo's statement because it was received into evidence after Verdugo had testified and been excused. "The sixth amendment guarantees criminal defendants the right to cross-examine adverse witnesses to uncover possible bias and to expose the witness's motivation in testifying." Reiger v. Christensen, 789 F.2d 1425, 1433 (9th Cir. 1986).

Little had more than an adequate opportunity to cross-examine Verdugo on what she'd said to Newman, but failed to do so. Verdugo testified on direct examination that she went to Newman's home after the assault and "told her what happened to me." Little's counsel failed to cross-examine Verdugo on this direct testimony. Moreover, Little did not ask the court to recall Verdugo after she'd been excused to explain what she'd said to Newman. Little was not denied his right to cross-examination.

Little contends the prosecutor is guilty of misconduct because she elicited the word "rape" on redirect examination of Officer Cassadore contrary to the court's order. A claim of prosecutorial misconduct requires a showing that the conduct materially affected the fairness of the verdict. United States v. Polizzi, 801 F.2d 1543, 1548 (9th Cir. 1986). Even if we assumed the reference to the word "rape" violates the court's order and constitutes misconduct, the reference did not materially affect the verdict.

Little contends for the first time on appeal that Dr. Hulkower's opinion was inadmissible because he was not qualified as an expert on the examination of sexual assault victims. We review an issue not raised before the district judge for plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). Little himself qualified Dr. Hulkower when on cross-examination he elicited from the doctor that he had completed six to ten "sexual assault kits." Also, Hulkower testified he was a board certified family practitioner who had conducted many pelvic exams on women. There was no error plain or otherwise in receiving Dr. Hulkower's opinion. See United States v. Wesson, 779 F.2d 1443, 1444 (9th Cir. 1986).

The district court properly prohibited Little's testimony about marks on his face. Marks present on Little's face more than one year after the crime are not probative of whether Little committed the assault. See Fed.R.Evid. 401.

Finally, the district court did not abuse its discretion by refusing Little's proposed jury instruction. "It is not error to refuse a proposed instruction if the other instructions, when viewed in their entirety, cover that theory." United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987). Little's theory of the case that intercourse was consensual was covered by jury instructions eleven and twelve.

The conviction is AFFIRMED.