United States v. Cottrill

45 M.J. 485, 1997 CAAF LEXIS 11, 1997 WL 134046
CourtCourt of Appeals for the Armed Forces
DecidedJanuary 24, 1997
DocketNo. 96-0138; Crim.App. No. 30951
StatusPublished
Cited by47 cases

This text of 45 M.J. 485 (United States v. Cottrill) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cottrill, 45 M.J. 485, 1997 CAAF LEXIS 11, 1997 WL 134046 (Ark. 1997).

Opinion

Opinion of the Court

SULLIVAN, Judge:

During July of 1993, appellant was tried by a general court-martial composed of officer members at Plattsburgh Air Force Base, New York. Contrary to his pleas, he was found guilty of committing indecent acts with his 3 1/2-year-old daughter, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced to a dishonorable discharge, confinement for 6 years, and reduction to E-l. The Court of Criminal Appeals reduced his sentence in an unpublished opinion (1995 WL 611299) to a bad-conduct discharge, confinement for 4 years, and reduction to E-l.

This Court specified the following issue for review:

WHETHER THE EVIDENCE IS SUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE FINDINGS OF GUILTY AND/OR APPELLANT’S CONFESSION.

We hold that the evidence in this case is sufficient as a matter of law to sustain admission of appellant’s confession and the findings of guilty. See United States v. Sever, 39 MJ 1 (CMA 1994)(kissing child can be indecent assault depending upon surrounding circumstances).

The Court of Criminal Appeals summarized the facts of this case as follows:

Appellant was a single parent caring for his young daughter, CC. One day CC told her preschool teacher that “her privates hurt” and a joint military and civilian investigation followed. During a subsequent medical examination, CC also told Doctor Hickey that “her privates hurt.” In response to his questions, she indicated that her daddy touched her there with his arms. The medical examination was inconclusive, although the findings were different from a prior pelvic examination conducted three weeks earlier. Over the course of two interviews with Air Force Office of Special Investigations (AFOSI) agents, appellant admitted to bathing his daughter, washing her genital area, powdering her, and to placing his finger in her. However at trial he challenged the admis[487]*487sibility of these statements and claimed that he hadn’t done anything wrong.

Unpub. op. at 2.

A review of the record reveals that, in his first statement, appellant admitted to touching his daughter’s vaginal area in the process of bathing and powdering her. He asserted that his daughter enjoyed when he powdered her private area. He denied deliberately putting his finger into her vagina, but he admitted that he may have accidentally snagged or scratched her. He also admitted that, on occasion, he experienced an erection after rubbing powder on her private area.

In his second statement, made the following day, appellant admitted putting his finger into his daughter’s vagina for ten to fifteen seconds and he stated that he “got sexually excited and an erection most of the time when I have my finger in her.” Appellant admitted that he would “wait until after she [was] asleep and masturbate.” Appellant stated, “I never masturbated in front of my daughter. She never knew that I got any excitement out of doing this to her.” Appellant admitted that he “knew it was wrong to touch her” and that “it had to stop.” Appellant finally admitted to touching his “daughter’s private once every couple of weeks at most.”

Appellant’s initial claim on this appeal is that his conviction for committing indecent acts with a child was not based on legally sufficient evidence. See generally United States v. Haggard, 43 MJ 1 (1995). He argues that his purported confessions on December 8 and 9,1992, do not establish all the elements of that crime. In particular, he asserts that neither of his pretrial statements to military police established that his acts were indecent or that they were done with an intent to gratify his sexual desires. Instead, he contends that the evidence in this case shows only that he rubbed his daughter’s vagina and inserted his finger therein as part of her normal bathing process. We disagree.

Legal sufficiency is tested by asking whether, considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Garner, 43 MJ 435, 437 (1996); United States v. Turner, 25 MJ 324 (CMA 1987). Appellant was found guilty of committing indecent acts with his 3[£-year-old daughter in violation of Article 134. The specification states:

In that [appellant] did, within the territorial limits of the State of New York, on divers occasions between on or about 31 August 1992 and on or about 1 January 1993, commit indecent acts upon the body of [CC], a female under 16 years of age, not the wife of the said [appellant] by rubbing her vaginal area, and by placing his finger inside her vagina, with intent to arouse and gratify the lust and sexual desires of the said [appellant].

In his first statement, appellant did state that he touched his daughter’s vaginal area while bathing her. However, he further indicated that he generally touched his daughter in her vaginal area to make her feel good and to relax her. In his second statement, appellant admitted that he deliberately penetrated her vagina with his finger, and he stated that she said she enjoyed it. Finally, appellant acknowledged that he was sexually aroused by these touchings to the point of masturbation. Clearly, appellant on appeal is not free to ignore unfavorable parts of his pretrial statements in arguing legal insufficiency. See generally United States v. Williams, 21 MJ 360, 362 (CMA 1986).

More particularly, the thrust of appellant’s argument is that it was unreasonable for a factfinder to find his conduct indecent under the circumstances of his case as he describes them. See United States v. Hoggard, supra. Indecency for purposes of this offense is generally understood to mean “that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations.” See para. 90c, Part IV, Manual for Courts-Martial, United States, 1984. In finding this element of the [488]*488offense in a particular ease, this Court has repeatedly held that the factfinder must consider all the circumstances surrounding the act, not just those favorable to an accused. See United States v. Tindoll, 16 USCMA 194, 195, 36 CMR 350, 351 (1966); see generally United States v. Holland, 12 USCMA 444, 445, 31 CMR 30, 31 (1961) (“Under some circumstances a particular act may be entirely innocent; under other conditions, the same act constitutes a violation of the Uniform Code.”).

In this light, appellant’s claim of appropriate parental conduct must fail. The record before us established that an adult male repeatedly touched a 3/£-year-old girl around and in her vagina to the point of physical pain. Evidence that these vaginal touchings and penetrations were performed by her father during the bathing process does not diminish the obvious depravity of such sexual abuse. Moreover, evidence of the child victim’s purported enjoyment of the powdering or the vaginal penetrations by her father does not make it any less outrageous or repugnant to common propriety. Finally, appellant admitted that these acts excited his lust to the point of masturbation at a later time and place.

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Cite This Page — Counsel Stack

Bluebook (online)
45 M.J. 485, 1997 CAAF LEXIS 11, 1997 WL 134046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cottrill-armfor-1997.