United States v. Donaldson

58 M.J. 477, 2003 CAAF LEXIS 705, 2003 WL 21659094
CourtCourt of Appeals for the Armed Forces
DecidedJuly 15, 2003
Docket02-0931/AR
StatusPublished
Cited by74 cases

This text of 58 M.J. 477 (United States v. Donaldson) 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. Donaldson, 58 M.J. 477, 2003 CAAF LEXIS 705, 2003 WL 21659094 (Ark. 2003).

Opinions

Judge BAKER

delivered the opinion of the Court.

In accordance with his pleas, Appellant was convicted by a military judge, sitting as a general court-martial, of failure to report, disobeying an officer, disobeying a noncommissioned officer (three specifications), disrespect to a noncommissioned officer, failure to obey a lawful general regulation, driving while intoxicated, cocaine use (two speeifica[479]*479tions), assault (two specifications), adultery, breaking restriction, and disorderly conduct, in violation of Articles 86, 90, 91, 92, 111, 112a, 128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886, 890, 891, 892, 911, 912a, 928, 934 (2000), respectively. Contrary to his pleas, Appellant was convicted of indecent acts with a child less than sixteen years of age and communicating a threat, in violation of Article 134.

The adjudged sentence included seven years’ confinement, a reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority reduced the confinement to seventy-eight months, but otherwise approved the adjudged sentence. He also granted Appellant 239 days of credit against his sentence to confinement. The Army Court of Criminal Appeals affirmed the findings of guilty and the sentence in an unpublished opinion. United States v. Donaldson, ARMY No. 9900544 (A. Ct.Crim.App. June 10, 2002). We granted review on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE HEARSAY TESTIMONY OF BT WAS ADMISSIBLE UNDER MILITARY RULE OF EVIDENCE [HEREINAFTER M.R.E.] 803(2), THAT THE HEARSAY TESTIMONY OF DR. ROGERS WAS ADMISSIBLE UNDER M.R.E. 803(4), AND THAT THE HEARSAY TESTIMONY OF DR. ROGERS AND INVESTIGATOR BASS-CAINE WAS ADMISSIBLE UNDER M.R.E. 803(24).

We hold that the Court of Criminal Appeals did not err in holding J’s statements to BT admissible as excited utterances under M.R.E. 803(2). We further conclude that the court correctly held that J’s statements to Dr. Carrie Rogers were admissible under M.R.E. 803(4) as statements made for purposes of medical diagnosis or treatment. As such, we do not address whether these statements to Dr. Rogers would have been admissible under M.R.E. 807. Finally, we hold that J’s statements to Investigator Tracy Bass-Caine were properly admitted as residual hearsay under M.R.E. 807. As a result, we affirm the lower court’s opinion.

FACTS

The alleged errors underlying this appeal relate to the military judge’s decision to allow several witnesses to testify about the hearsay statements of a three-year-old victim, J. The relevant statements concerned indecent acts committed by Appellant on the victim and threats Appellant made to her to keep her from reporting his misconduct.

At the time of the offenses J lived with her single mother, BT, and her brother John. Aso residing in the home was Appellant’s girlfriend, SK, who rented a room and helped pay the bills. Because SK lived with the family, Appellant frequently spent time in the home.

At approximately 7:00 a.m. on November 11, 1996, BT was getting ready to go to a 9:00 a.m. doctor’s appointment. While she was getting ready, J was running back and forth in the hallway between her mother’s bedroom and SK’s bedroom. SK was taking a shower and getting ready in another room, and Appellant was in SK’s bedroom. BT testified that she periodically called out to J to find out what she was doing. In response to BT’s inquiry, J responded, “I’m up here in [SK’s] room.”

At about 8:00 a.m., BT was ready to depart her residence with J to go to the doctor’s appointment. At that time, she noticed that J was unusually quiet. BT testified that throughout the rest of the day, J was very “clingfy],” would not urinate, wanted to be carried, and would not let “[me] get out of her sight.” After the doctor’s appointment, [480]*480BT and J went to the mall and then returned home. Ms. Elaine Sandreth, a friend, accompanied BT and J to the doctor’s office and to the mall.

That evening, at approximately 7:00 p.m., BT gave J a bath. At one point, BT attempted to wash between J’s legs, but J resisted saying, “No, no, no.” After getting J out of the bathtub, BT started drying J off. When BT attempted to dry J’s vaginal area, J began to cry. BT attempted to look between J’s legs to see what was wrong. According to BT, J again resisted, held her legs together, and became “really hysterical, crying and even more.” After several minutes, BT was able to calm J down and look between her legs. She testified that the skin in the vaginal area was “real raw, red and irritated.” She further stated that J became “very, very hysterical ... screaming and crying.” When BT asked her what was the matter, J stated, “Him touched me.” When BT asked her who had touched her, J stated “Him, Dave.” BT then asked her, “What do you mean Dave touched you?” J responded by pointing to the top part of her vaginal area with her little finger. J also stated that the touching had occurred that morning. When BT asked J why she did not tell her that Appellant had touched her, J responded, “Him said he would kill you, John and me, if I told you.” Appellant was the only “Dave” J knew.

After J calmed down, BT called her sister to discuss J’s statement. Her sister advised her to call the police. BT also called a friend who came over to discuss the situation. BT then proceeded to call the police. While waiting for the police to arrive, BT called SK at work and told her to come home because they needed to talk.

The police eventually arrived and began filling out a report. SK also came in, and SK and BT began arguing over Appellant’s inappropriate touching of J. J was present during the argument, and BT testified that J was “very nervous ... [and] a little bit upset.” At one point, J put her hands over her ears while BT and SK yelled at each other. Finally, Investigator Bass-Caine, a child abuse investigation specialist from the Fayetteville Police Department, arrived to help with the investigation.

Investigator Bass-Caine took J into a bedroom and interviewed her privately. Investigator Bass-Caine asked J who lived in the house. J told her that her brother and mother lived in the house, as did SK and “Dave.” Investigator Bass-Caine testified that when J mentioned Appellant’s name, she stated that she did not like him. Investigator Bass-Caine asked her why she did not like Appellant, to which J responded, “Because Dave hurt me.” Investigator BassCaine testified that when she asked J how Appellant had hurt her, J pointed to her vaginal area and stated, “He touched me. He touched me there.” When Investigator Bass-Caine asked her whether Appellant had touched “the inside or the outside,” J “laid back on the bed, pulled her panties to the side, and stuck her finger ... real close in her vaginal area.” Investigator Bass-Caine testified that she was surprised at J’s reaction in leaning over and revealing her private parts. She stated that she had never seen another child abuse victim respond in such an “animated” manner. She further testified that J did not appear to be upset at the time she related this information to her.

After Investigator Bass-Caine completed her report, the officers left. BT did not take J to the doctor that evening, but waited until the next morning to have a physician examine her.

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Cite This Page — Counsel Stack

Bluebook (online)
58 M.J. 477, 2003 CAAF LEXIS 705, 2003 WL 21659094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-donaldson-armfor-2003.