United States v. Cox

42 M.J. 647, 1995 CCA LEXIS 141, 1995 WL 310818
CourtUnited States Air Force Court of Criminal Appeals
DecidedMay 9, 1995
DocketACM 30712
StatusPublished
Cited by3 cases

This text of 42 M.J. 647 (United States v. Cox) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cox, 42 M.J. 647, 1995 CCA LEXIS 141, 1995 WL 310818 (afcca 1995).

Opinion

OPINION OF THE COURT

HEIMBURG, Senior Judge.

A general court-martial, sitting with members, convicted Technical Sergeant Cox of rape, two specifications of sodomy, and five specifications of indecent acts or liberties with a child, in violation of Articles 120, 125, and 134, UCMJ, 10 U.S.C. §§ 920, 925, and 934 (1988). His approved sentence is a dishonorable discharge, confinement for 14 years, and reduction to E-l. Among the six errors he has assigned are assertions that the military judge erred by permitting a great deal of unreliable hearsay testimony, not made for purposes of medical diagnosis or treatment. We find no error, and affirm.

I. BACKGROUND

The appellant and his wife married in 1983, and their two daughters (“K” and “C”) were born in 1985 and 1988. The rape, sodomies, and all but one of the indecent acts or liberties specifications involved K, while C was the victim of one specification of indecent acts with a child.

The allegations came to light when K and C were playing at a friend’s house on 25 July 1992. The friend’s mother, Mrs. P, came upon a closed bedroom door and opened it, startling her daughter and K, who were grappling around on the bed. Questioning the girls separately, Mrs. P found they had [649]*649been “French kissing,” as K had seen people do in some movies her mother “threw away.” K, who was then 6 years old, was initially “frightened” at being questioned, Mrs. P said, but then became very upset, saying “her daddy told her he would beat her with the belt—her mother would beat her with the belt if she told her mother, that she would be mad.” Mrs. P consoled K, and let the girls go outside to play. Twice thereafter, K returned into the house, crying, to ask Mrs. P not to tell her mommy. When Mrs. Cox called, Mrs. P reported what she saw and heard. Confronted about the incident, K said she learned her “gross” behavior from movies her daddy made her watch. When they watched the movies, she said, her daddy would “try to do what was in the movies to me.” K related sodomy, intercourse, and indecent acts her daddy performed. Mrs. Cox testified she at first did not believe K’s allegations, but K was adamant they were true, even confronting the appellant that afternoon and asking him why he was lying by denying them. After 5 days, Mrs. Cox reported the allegations, and K was questioned by investigators first on 31 July 1992.

K testified that she and her friend were caught playing “gross,” and that she learned such behavior from some movies her dad showed her. In those movies, “the boy was putting his penis inside the girl’s vagina” and “was licking the girl’s vagina and the girl was licking the boy’s penis.” She watched the movies lots of times when her mommy was “either shopping or at work or somewhere” and her little sister, C, was “[e]ither taking a nap or playing down in her room.” While they watched the movies, her dad would “try to do what was in the movies to me.” He put his penis into her vagina, but it only went in “a little.” (Showed about 54 inch with fingers.) When he did, it hurt “[a] lot.” When she told him to stop, he would “just go on” and say “just a few more minutes.” Sometimes he tried to put his penis in her “bottom” (pointing and saying “[i]n the back.”) “That hurt.” He put “jelly stuff” on to make his penis go inside. It was “slick” and “clear” and came in a container that was “like round sort of’ and had a top “[y]ou could pop” off. She showed the Air Force Office of Special Investigations (AFOSI) investigator where the container was kept, down in her mom and dad’s bathroom. She identified Prosecution Exhibit 1 as the container: it is a jar of petroleum jelly.

K said her dad put “[mjakeup eyeliner pencil caps” in her vagina. They were kept in her mom and dad’s bathroom also, “in her makeup basket.” K showed how her dad would take the cap off and “put a little bit of jelly on it to make it go in.” He put all except the last 54 to % inch of the caps in. He also put his “pinky and his pointer finger” inside her vagina. Her dad also “wanted me to lick his penis.” She did—“I was little back then.” Her dad would put some “chocolate syrup, maybe a ring lollipop, you know, that has that hoop on it” on his penis to get her to do it. “It made me gag.” He also “would lick my vagina” a lot. Out of her dad’s penis would come this “white gooey stuff.” She would have no clothes on, because her dad always took them off and they were on the floor. He would lie her on a towel on the bed. He said “if anything got on the bed it wouldn’t be because the towel would be there.” When the “white gooey stuff’ came out of her dad’s penis, it went “[o]nto my stomach.” He would then clean it up with a wash cloth, she would put her clothes back on and go and play. Where did these things happen? “It would either be in the bathroom upstairs, the bathroom downstairs which is my mom and dad’s bathroom, or in my mom and dad’s room, or upstairs on the couch.” They watched the movies “[either on the bed or the couch” downstairs. After he was done, he would put medicine on her—she identified a tube of Terazol 7 vaginal cream as what he used—and tell her it was so “if I went potty it wouldn’t hurt.” (Other witnesses identified Terazol 7 as a cream used to combat yeast infection in women.) K said she didn’t tell anyone because “my dad told me if I told my mom I would get a spanking with the belt.” She testified that, as a result of the threat, “I didn’t tell until I got caught -with [her friend].”

C did not testify at trial, and the primary testimony concerning this specification came from Mrs. Cox. When K’s allegations came up, Mrs. Cox and the investigators ques[650]*650tioned C, but C denied that her dad touched her in any bad way. Nevertheless, questions about possible sexual abuse lingered, partly because of C’s behavior. In October 1992, a pediatrician examined C and said she was “suspicious” of sexual abuse because of her observations of the child’s hymen. While she admitted nothing in her observations was necessarily indicative of sexual abuse, she relayed her suspicions to Mrs. Cox, who then took C to the therapist who had been seeing her daughter K.

That therapist was Kathy Hunter, a former school teacher and guidance counselor. Ms. Hunter had a master’s degree in counseling and guidance and several years of experience in working with children on various behavioral problems, including “school problems, problems within the family setting, [and] sexual abuse issues.” In addition to practical experience, Ms. Hunter had attended seminars, workshops, and had done a considerable amount of reading on the subject of child sexual abuse. She was qualified, without objection, as an expert in “treatment of sexually abused children.”

Ms. Hunter testified C would come up to her and say, “We’re just not going to talk about the truth.” When Ms. Hunter pressed her about what she meant, C would say, “Well, I don’t want to talk about it. It makes me sad.” On one occasion, C told Ms. Hunter “her daddy had asked her to take off her pants and then he had spanked her bottom.” Asked what she meant by “spanked her bottom,” C pointed to her vaginal area and to her buttocks area and “said, ‘My daddy spanked me on my bottom, and then he went and washed his hands, and then he told me to get my nightgown on.’ ” C was 3 years old at that time.

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Related

United States v. Jones
Air Force Court of Criminal Appeals, 2020
United States v. Cox
45 M.J. 153 (Court of Appeals for the Armed Forces, 1996)
United States v. Siroky
42 M.J. 707 (Air Force Court of Criminal Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 647, 1995 CCA LEXIS 141, 1995 WL 310818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cox-afcca-1995.