## Facts

- Adam Frost, a Native American man, was charged in federal court with aggravated sexual abuse under 18 U.S.C. § 2241(a)(1), with federal jurisdiction under 18 U.S.C. § 1153 because the events occurred on the Southern Ute Indian Reservation in Colorado.
- On November 27, 2009, A.W. (age 17) met with K.A. (age 12), and they arranged for Frost to buy alcohol.
- The group went to Frost’s residence, then to a convenience store where Frost bought alcohol, and then returned to Frost’s bedroom to drink and watch television.
- After K.A. left the room, A.W. alleged Frost got into bed with her, touched her, and then vaginally and anally penetrated her despite her telling him to stop and trying to push him away.
- When Frost’s mother later came into the room, she ordered A.W. to leave. Around 3:00 a.m., A.W. left the house and immediately called her sister, Bridget, on her cell phone.
- During the call, A.W. was crying and told Bridget that Frost had raped her.
- A.W. later repeated her allegation to her parents, to law-enforcement officers, to a nurse during a sexual-assault examination, and to an FBI agent.
- At Frost’s jury trial, the government introduced testimony recounting several of A.W.’s out-of-court statements (including through Bridget, medical personnel, and law enforcement). Frost did not make contemporaneous objections to several of these statements.
- The jury convicted Frost on two counts; the district court vacated one count as a lesser-included offense and sentenced Frost to 200 months’ imprisonment followed by ten years of supervised release.
- On appeal, Frost challenged the admission of multiple hearsay statements and also argued the district court violated his right of allocution by announcing a sentence before inviting him to speak.

## Issues

1. Whether the district court plainly erred by admitting, without timely trial objections, multiple out-of-court statements by A.W. describing the assault, including statements offered as excited utterances (Fed. R. Evid. 803(2)), statements for medical diagnosis or treatment (Fed. R. Evid. 803(4)), and prior consistent statements (Fed. R. Evid. 801(d)(1)(B)).
2. Whether any evidentiary errors were clear or obvious on appeal and affected Frost’s substantial rights under plain-error review.
3. Whether the district court violated Frost’s right of allocution by announcing a sentence before giving him a meaningful opportunity to speak, and if so, whether that required resentencing under plain-error review.

## Decision

- The Tenth Circuit affirmed Frost’s conviction.
- Because Frost did not object at trial to several challenged statements, the court reviewed the evidentiary claims for plain error and found no basis to reverse.
- The court concluded A.W.’s immediate, emotional phone call to her sister shortly after leaving Frost’s house fit within the excited-utterance exception.
- The court determined A.W.’s statements to the examining nurse during the sexual-assault exam were admissible as statements made for medical diagnosis or treatment.
- The court also held that, given Frost’s theory that A.W. fabricated the accusation to explain her situation after being discovered at Frost’s house, some earlier consistent statements could be admitted as prior consistent statements because they predated the claimed motive to fabricate.
- Although the court acknowledged that some hearsay testimony should not have been admitted, it held that any errors were not sufficiently clear or outcome-determinative to satisfy plain-error relief.
- The Tenth Circuit affirmed Frost’s sentence, concluding that any sequencing problem with allocution did not satisfy the fourth prong of plain-error review and did not warrant resentencing.

## Legal Principles

- Plain-error review requires the appellant to show (1) an error, (2) that is plain (clear or obvious at the time of appeal), (3) that affects substantial rights (a reasonable probability of a different outcome), and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
- Under Fed. R. Evid. 803(2), an excited utterance is a statement relating to a startling event made while the declarant is still under the stress of that event; timing and the declarant’s emotional condition are key factors.
- Under Fed. R. Evid. 803(4), statements made for purposes of medical diagnosis or treatment, including descriptions of how an injury occurred when relevant to care, are admissible despite being hearsay.
- Under Fed. R. Evid. 801(d)(1)(B), a witness’s prior consistent statement may be admitted as non-hearsay to rebut a charge of recent fabrication or improper motive, but the consistent statement must have been made before the alleged motive to fabricate arose.
- Even when some hearsay is admitted in error, reversal under plain-error review requires more than repetition or cumulative impact; the defendant must show a clear mistake that likely changed the verdict.
- A claimed allocution error warrants relief on plain-error review only if the record shows the mistake likely mattered to the sentence and meets the demanding fourth prong.

## Conclusion

United States v. Frost, 684 F.3d 963 (10th Cir. 2012), affirmed both the conviction and 200-month sentence for aggravated sexual abuse, holding that because Frost failed to raise timely objections, the challenged hearsay rulings were reviewed only for plain error and did not justify reversal: A.W.’s immediate crying phone call to her sister qualified as an excited utterance, her statements during the medical exam fell within the medical-treatment exception, some consistent statements were admissible to counter a fabrication theory, and any remaining evidentiary mistakes were not clearly outcome-determinative; the court also found no basis for resentencing on the allocution claim under plain-error review.


United States v. Frost, 684 F.3d 963 (2012)