F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 25 2005
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                        No. 04-2068
 JASON LOSSIAH,                                     (D.C. No. CR-00-171 MV)
                                                           (D. N. M.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT         *




Before BRISCOE, HOLLOWAY              and MURPHY , Circuit Judges.


      Defendant Jason Lossiah appeals his convictions for two counts of

aggravated sexual abuse in violation of 18 U.S.C. §§§ 1153, 2241(c), 2246(2)(A).

Lossiah contends hearsay evidence was improperly admitted, the evidence

submitted was insufficient to support his convictions, and the jury’s verdicts are

irrationally inconsistent. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      1
          Although the United States initially filed a cross-appeal (No. 04-2100)
                                                                         (continued...)
affirm.

                                          I.

      In January of 2002, Lossiah was charged in a superceding indictment with

six counts of aggravated sexual abuse in violation of 18 U.S.C. §§ 2241(c) and

2246(2), subsections (A), (B), and (D). Three counts involved a child who was

over the age of 12 but under the age of 16, and three counts involved her younger

sister, who was under the age of 12. Lossiah was convicted after a jury trial on

four counts and acquitted of two. Lossiah’s motion for a new trial was granted.

A second trial, which began in June of 2003, ended in a mistrial.

      The third trial, which gives rise to this appeal, began in August 2003. The

jury returned guilty verdicts on Counts I and II, both involving the older child,

and acquitted on Count III, involving the older child, and Count IV, the only

remaining count involving her younger sister. 2

      The children, who were the victims of the crimes charged, lived at the

school they attended on their reservation. With their mother’s permission,

      1
       (...continued)
challenging the court’s grant of a downward departure, it later moved to dismiss
the cross-appeal. The government’s motion to dismiss its cross-appeal was
granted by the court on January 27, 2005.
      2
        Lossiah was convicted of Counts I and II for forcing the older child to
engage in sexual acts in violation of 18 U.S.C. §§§ 1153, 2241(c), 2246(2)(A).
Lossiah was acquitted of Count III, which charged a violation of 18 U.S.C. §§§
1153, 2241(c), 2246(2)(B), and of Count IV, which charged a violation 18 U.S.C.
§§§ 1153, 2241(c), 2246(2)(D).

                                          2
Lossiah and other members of his family would bring the children snacks at

school or check them out from school to take them to a nearby store so that they

could select their own snacks. On December 19, 2000, Lossiah checked the older

child out of school. Although he told her they were going to get a snack, he

instead sexually assaulted her. This sexual assault of the older child is the basis

for the convictions appealed.

      The evidence at trial also related to alleged sexual abuse of the younger

child, and the testimony of Kelly Smith, her third grade teacher, is the focus of

Lossiah’s argument that hearsay evidence was improperly admitted. Specifically,

the same day that the older child was assaulted, her younger sister upon seeing

Lossiah in the school office ran to Smith and asked Smith not to let Lossiah take

her from school because he had raped her. The younger sister made this statement

to Smith on December 19. The Government contends Lossiah sexually assaulted

the younger sister sometime before Thanksgiving, suggesting October 19 as the

exact date. A few days after December 19, Dr. Margaret Bradley examined both

of the children.

                                          II.

                                  Excited utterance

      Lossiah contends the court erred in admitting the following statement as an

excited utterance: “Don’t let him check me out. He raped me.” ROA, Vol. XIV,


                                          3
at 213. Smith testified the younger sister made this statement to her. Lossiah

argues that (1) the younger sister was not immediately excited after a startling

event, (2) there is no evidence that a startling event occurred, and (3) the

statement does not relate to a startling event. The district court admitted the

statement as an excited utterance, but did not indicate what startling event

prompted the statement. 

Lossiah objected to the admission of the

statement as constituting hearsay. 

      An excited utterance, “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by

the event or condition,” is excluded from the definition of hearsay under Federal

Rule of Evidence 803(2). We review “evidentiary rulings under an abuse of

discretion standard and reverse[s] district court rulings only for a clearly

erroneous finding of fact or an erroneous conclusion of law or . . . a clear error in

judgment.” United States v. Lang, 

, 1222 (10th Cir. 2004).

      Lossiah contends that the statement was not an excited utterance because

the younger child initially appeared calm following the startling event. This

argument understates the test. To come within the excited utterance exception,

the declarant need not show signs of excitement immediately upon witnessing or

experiencing a startling event. Rather, the declarant is simply required to still be

under the continuing stress of excitement caused by the event or condition when


                                           4
making the statement. See United States v. Farley, 

, 1126 (10th

Cir. 1993).

      Lossiah also contends the court’s ruling was erroneous because there was

no evidence of a startling event when the statement was admitted. Lossiah is

correct that evidence of a startling event had not been fully developed when the

statement was admitted. However, this gap in the evidence was later rectified.

When the statement was admitted, Smith had testified that the students were

walking back and forth in the hallway going to the cafeteria and that the older

child took the younger child out of the lunch line and whispered something to her.

However, later in the trial, the younger child testified “I was about to go to lunch.

I asked Ms. Smith if I could use the restroom. I seen Jason at the front office, so

I ran to tell Kelly Smith that I didn’t want to go with him, and she asked me why,

and I told her that - - what happened to me.” 

The prior sexual assault

caused the child to be fearful when she saw Lossiah in the school hallway. Her

seeing Lossiah in the hallway was a startling event which would support the

admission of Smith’s hearsay statement.

      Lossiah argues that it is “unclear as to when [the younger sister] may have

seen [him] or how much time elapsed between then and her statement to Kelly

Smith.” Aplt. Reply Br. at 3. However, the testimony at trial indicates that upon

seeing Lossiah in the office, the younger sister “ran to tell” Smith. Vol. XV,


                                          5
ROA at 308. This chronology of events indicates immediacy, not delay. That her

statement quickly followed her seeing Lossiah is supported by the school sign-out

sheet, which shows Lossiah checked the older child out from the office at 11:20,

and Smith’s testimony that the younger child sought protection around 11:30.

Aplee. Br., Exhibit 8A; ROA, Vol. XIV, at 213.

      Lossiah also argues that his presence at the school was not uncommon, thus

he contends the younger child seeing him in the office would not constitute a

startling event. While it is true that the Lossiah family, including the defendant,

frequently came to the school, that fact becomes irrelevant when the intervening

sexual assault on the younger child is also considered. That intervening fact

would cause the child to respond as she did upon seeing him.

      Lossiah also argues that the younger child’s statement concerning a prior

rape did not relate to the startling event of her seeing him at ths school.

“Permissible subject matter of the statement is limited under [the present sense

impression exclusion] to description or explanation of the event or condition, the

assumption being that spontaneity, in the absence of a startling event, may extend

no farther. [With the excited utterance exclusion,] however, the statement need

only ‘relate’ to the startling event or condition, thus affording a broader scope of

subject matter coverage.” Fed. R. Evid. 803, Advisory Committee’s Notes.

      In Esser v. Commonwealth, 

, 879 (Va. Ct. App. 2002), the


                                           6
Virginia Court of Appeals concluded that “[t]he basis of the excited utterance

exception rests with the spontaneity and impulsiveness of the statement; thus, the

startling event does not have to be the actual crime itself, but rather may be a

related occurrence that causes such a reaction.” In Esser, a victim of a sexual

assault informed her mother that her aunt’s boyfriend had raped her. 

Finding the statement admissible as an excited utterance, the court noted that

“[t]he statement was made the first time she believed she was to be returned to

the place where she was assaulted and to the control of appellant, the man who

had raped and sexually assaulted her.” 

younger child’s statement here that Lossiah had previously

raped her is related to the startling event of seeing him at the school. Further, the

younger child later testified about the statement she made to her teacher, and

Lossiah had the opportunity to cross-examine her. Thus, the district court did not

abuse its discretion in admitting the child’s statement as an excited utterance.

                             Sufficiency of the evidence

      Lossiah contends there was insufficient evidence to support his convictions

for violating 18 U.S.C. §§ 2241(c) and 2246 (Counts I and II). “Sufficiency of

the evidence to support a jury's verdict is a legal issue that is reviewed de novo.

In order to conclude that the evidence was insufficient as a matter of law, the

court must view the evidence and reasonable inferences therefrom in the light


                                           7
most favorable to the government and then determine that no rational jury could

have found Defendant guilty beyond a reasonable doubt.” United States v.

Norman, 

, 1340 (10th Cir. 2004) (internal citations and quotation

marks omitted).

      As regards the convictions at issue, the older child testified as to sexual

activity with Lossiah that she was forced to perform, including vaginal and anal

sex. She also testified that she reported these same acts to Dr. Bradley. The

medical evidence presented through Dr. Bradley’s testimony was consistent with

vaginal penetration. Dr. Bradley also testified that the older child described both

acts of sexual abuse to her during the medical examination. When viewed in the

light most favorable to the government, there is sufficient evidence for a rational

jury to have found Lossiah guilty beyond a reasonable doubt. See Rojem v.

Gibson, 

, 1141-42 (10th Cir. 2001).

      Lossiah asks us to conclude that the older child’s testimony was incredible

and to reweigh the evidence. “[T]he credibility of witnesses is a matter for the

jury, and on appeal we must resolve credibility issues in the jury’s favor unless

the testimony is inherently incredible.” United States v. Smith, 

,

1399 (10th Cir. 1997). On the record presented, we cannot conclude the child’s

testimony was inherently incredible.




                                          8
                                 Inconsistent verdicts

      The jury acquitted Lossiah on Count III, but convicted as to Count II.

Lossiah contends that there is less evidence to support a guilty verdict as to Count

II than Count III. He concedes that a verdict should not be overturned merely

because it is inconsistent, but argues that the jury’s verdicts are not only

inconsistent, but also exceed the bounds of rationality.

      The fatal flaw in Lossiah’s argument is that these verdicts are not

inconsistent or irrational. The acts at issue in Count II and Count III are different

and distinct acts. Lossiah could have committed one act of sexual abuse without

having committed the other. Further, there was medical evidence that supported

the conviction on Count II, while there was no such evidence to support the

charge in Count III. A rational jury could have rendered a different verdict on

Count II than it did on Count III on that basis alone.

      Affirmed.

                                               Entered for the Court



                                               Mary Beck Briscoe
                                               Circuit Judge




                                           9