PUBLISH April 23, 2024

Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court FOR THE TENTH CIRCUIT _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-7033

KENDALL LEN BURGESS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:20-CR-00132-RAW-1) _________________________________

Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant Kendall Burgess.

James R.W. Braun, Special Assistant U.S. Attorney (Christopher J. Wilson, United States Attorney, with him on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee United States of America. _________________________________

Before CARSON, BALDOCK, and EBEL, Circuit Judges. _________________________________

EBEL, Circuit Judge. _________________________________

In this direct criminal appeal, Defendant Kendall Burgess challenges his

convictions for 1) aggravated sexual abuse and 2) abusive sexual contact. These Appellate Case: 22-7033 Document: 010111036612 Date Filed: 04/23/2024 Page: 2

crimes involved a seven-year-old victim, P.G. The primary question presented is

whether the district court abused its discretion in admitting into evidence at trial a

fifty-minute videorecording of a trained examiner’s “forensic interview” with P.G.

that took place three days after the last incident of alleged sexual abuse. The trial

court admitted that recorded interview into evidence under Fed. R. Evid. 807, the

residual exception to the rule against hearsay, after the victim, then age nine, testified

inconsistently at trial as to the acts Burgess committed when he sexually abused her

on the day in question. We conclude the district court did not abuse its discretion in

admitting the recorded interview after determining 1) that P.G.’s statements made

during the recorded interview were “supported by sufficient guarantees of

trustworthiness,” and 2) that the video recording was “more probative on the point

for which it is offered than any other evidence that the proponent can obtain through

reasonable efforts.” Fed. R. Evid. 807(a). We further reject the remainder of

Burgess’s appellate arguments. Having jurisdiction under 28 U.S.C. § 1291, we,

therefore, AFFIRM his convictions.

I. FACTUAL BACKGROUND

In April 2019, seven-year-old P.G. lived in a three-bedroom house with her

family. P.G. slept in one bedroom with her mother and her twelve- and six-year-old

sisters. P.G.’s twenty-one-year-old sister stayed in another bedroom with her

nineteen-year-old boyfriend, Defendant Burgess, and their two young children (ages

two years and three months). P.G.’s seventeen-year-old brother stayed in the third

bedroom.

2 Appellate Case: 22-7033 Document: 010111036612 Date Filed: 04/23/2024 Page: 3

On Good Friday, April 19, Burgess’s two-year-old child was severely burned

when the child pulled a cup of boiling water onto himself. The child’s mother and

grandmother (P.G.’s sister and mother) took the child to the emergency room, leaving

Burgess, who had been sleeping, home with the other children. P.G. says that

Burgess sexually abused her that afternoon. P.G. then spent the weekend with the

family o

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