Appeal from the United States District Court for the District of Guam, Appellate Division. D.C. No. CR-90-00125A. Judges Goodwin, Crocker, and Munson, Presiding.
Before: James R. Browning, William A. Norris and Stephen Reinhardt, Circuit Judges. Opinion by Judge Norris; Dissent by Judge Reinhardt.
Appellant Thomas McGravey challenges his convictions for first and second degree criminal sexual assault on the ground that the jury instructions, taken as a whole, misled the jury by directing them to give undue weight to the testimony of the victim, who was a minor.
McGravey singles out two instructions that were given and one proposed instruction that was rejected by the trial court as the basis for his appeal. Because we hold that the jury instructions, viewed in their entirety, did not lead the jury to place a disproportionate emphasis on the testimony of the alleged victim, we affirm.
McGravey was tried before a jury on the charge of sexually molesting his nephew on two separate occasions - first when the child was seven years old and again when the child was nine years old. Since there were no witnesses to the alleged acts, and because neither side offered any corroborating evidence to support its version of the events, the trial boiled down to a pure credibility contest between the defendant and the alleged victim, who was then ten years old.
At trial, McGravey objected unsuccessfully to two separate jury instructions. The first instruction he challenged stated:
The testimony of a victim of criminal sexual conduct need not be corroborated if the victim is believed beyond a reasonable doubt.
This instruction was patterned after 9 Guam Code Annotated § 25.40, which provides that a victim's testimony need not be corroborated in prosecutions for sexual offenses. The second instruction he challenged stated:
The court shall allow a support person to be present during a child-victim's testimony. No prejudice exists because of that presence.
This instruction was taken verbatim from 8 Guam Code Annotated § 75.80.
Finally, McGravey proposed the following instruction regarding the testimony of child witnesses, which the trial court rejected:
A child is not disqualified as a witness simply by reason of his youth. There is no precise age which determines a child's competency. This depends on his capacity and intelligence, on his understanding of the difference between truth and falsehood, and on his appreciation of his duty to tell the truth.
As with all other witnesses, you are the sole Judge of the credibility of a child who testifies. You may consider not only his age but his demeanor on the stand, his capacity to observe facts and to recollect them, his ability to understand questions put to him and to answer them intelligently, whether he impresses you as having an accurate memory and recollection, whether he impresses you as a truth-telling individual, and any other facts and circumstances which impress you as significant in determining his credibility. On the basis of your consideration you may give the child's testimony such weight as you in your judgment think it is entitled to.
Children are likely to be more suggestible than adults. Moreover, children may not have a full understanding of the serious consequences of the testimony they give and the charges they make. You should therefore consider the capacity of a child witness to distinguish truth from falsehood and to appreciate the seriousness of his testimony in evaluating the testimony.
This instruction was taken from 1 Devitt & Blackmar, Federal Jury Practice and Instructions, § 17.17 (3rd ed. 1977).
Following his conviction on both counts, McGravey appealed to the Appellate Division of the District Court of Guam, raising all three of his challenges to the jury instructions. The Appellate Division affirmed McGravey's convictions. Our review of the Appellate Division's ruling is de novo. Guam v. Yang, 850 F.2d 507, 511 (9th Cir. 1988) (en banc).
In reviewing jury instructions, "our inquiry is whether the jury instructions as a whole are misleading or inadequate to guide the jury's deliberations." United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir. 1991). The trial Judge has substantial latitude in formulating jury instructions so long as the instructions fairly and adequately cover the issues presented. United States v. Powell, 955 F.2d 1206, 1210 (9th Cir. 1992). Jury instructions, even if imperfect, are not a basis for ...