United States v. O'Rourke

57 M.J. 636, 2002 CCA LEXIS 185, 2002 WL 1980837
CourtArmy Court of Criminal Appeals
DecidedAugust 29, 2002
DocketARMY 9900492
StatusPublished
Cited by2 cases

This text of 57 M.J. 636 (United States v. O'Rourke) is published on Counsel Stack Legal Research, covering Army 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. O'Rourke, 57 M.J. 636, 2002 CCA LEXIS 185, 2002 WL 1980837 (acca 2002).

Opinion

OPINION OF THE COURT

CAIRNS, Senior Judge:

A military judge sitting as a general court-martial convicted the appellant, contrary to his pleas, of indecent acts with a child (two specifications) and false swearing, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 [hereinafter UCMJ]. The convening authority approved the sentence to a dishonorable discharge, confinement for sixty-six months, and reduction to the grade of Private El.

In this Article 66, UCMJ, 10 U.S.C. § 866, appeal, the appellant assigns two errors: (1) that the military judge erred in denying the trial defense counsel’s motion to exclude inadmissible hearsay evidence; and (2) that the military judge erred by ruling that the appellant’s confession was sufficiently corroborated to admit it into evidence. We hold that the military judge did not abuse his discretion in admitting the hearsay statements or the confession. We find, however, that the evidence is factually insufficient to support the finding of guilty of an indecent act as alleged in the Additional Charge and Specification.

FACTS

On 19 November 1998, a social services agency sponsored a play, entitled “Hugs and Kisses,” at a public school attended by the appellant’s six-year old stepdaughter, KL. The play was about “good touches and bad touches” and was presented to the entire student body of 375 to 380 students. The play was designed to educate children and to provide child victims an opportunity to discuss with an attending social worker any [638]*638inappropriate sexual touching to which they may have been subjected.

KL’s first grade teacher, Ms. Jackson, monitored her class during the play. Ms. Jackson noticed that KL was “very focused on the performance, very intense, [and her] attention did not waiver during the performance.” After the presentation, the performers solicited questions and comments, and KL raised her hand but was not called upon. Ms. Jackson was very surprised that KL had been so focused on the play and that she had raised her hand because those responses and actions were inconsistent with her normal classroom behavior and demean- or. She described KL as a “shy girl” whose typical behavior in class included being a little talkative, inattentive, and very reluctant to volunteer in class.

After returning to the classroom and during preparation to go outside to play, Ms. Jackson asked KL if she had a question about the play. KL responded, “No.” Ms. Jackson then asked KL what she thought about the play, and KL responded that her “daddy touched [her] where he wasn’t supposed to.”

Ms. Jackson then took KL to Ms. Young, one of the social workers who was available to talk with children after the play. Ms. Young was qualified as a social worker with a degree in psychology and more than seven years’ experience as a social worker. Her duties included child welfare services and child protective services.

Ms. Young introduced herself to KL and observed that KL was agitated, wringing her hands, and cautious. Ms. Young explained to KL that social workers are trained to “help families and help little children who might be in need of help.” She told KL that social workers come into the schools to help those who want help, and that they also go into homes to render services “to help ... if there’s anything that we need to do so that we can try to prevent any further harm if there is any occurring in the home.” After this explanation, Ms. Young felt assured that KL understood the role of social workers because KL was able to explain to Ms. Young her understanding of what social workers do.

Ms. Young asked KL what she thought about the play. KL responded that “Daddy Ken” had touched her in her “lower area and she pointed to the bikini area as [it was referred to] in the play.” (The evidence showed that the appellant went by his middle name, Kenneth, or its shortened version, Ken.) KL told Ms. Young that Daddy Ken touched her on one occasion, sometime around her sixth birthday. KL further related that she reported the touching to her mother, who “told her to go tell her dad not to touch her there again.” KL’s mother then sent KL out to play in the park só her mother and father could talk.

On 23 November 1998, four days after KL disclosed that Daddy Ken touched her, Ms. Young again talked to KL at her school. Special Agent (SA) Gonzalez, an investigator with the Army Criminal Investigation Command (CID), accompanied Ms. Young. At this second meeting, KL remembered Ms. Young and, in response to nonleading questions, repeated that “Daddy Ken” had touched her in her private parts. She related that it happened on one occasion, close in time to her sixth birthday, after playing a game of “chicken and eggs” with her friends.

Ms. Young then explained to KL that it is normal procedure to conduct a medical examination. When Ms. Young explained that the examination was similar to a regular yearly medical check-up, KL agreed. Ms. Young further explained that she would not accompany KL to the hospital, but SA Gonzalez would take her and that KL would meet with her parents later. Special Agent Gonzalez took KL to the clinic, where they met with Dr. Limbo-Perez and Ms. Porter, a Fort Lee social worker.

Doctor Limbo-Perez examined KL in the presence of Ms. Porter. During the medical examination, she asked KL if she had been touched in her private area. KL told the doctor that she had. Although Dr. Limbo-Perez could not recall precisely whom KL said had touched her, Dr. Limbo-Perez testified, “I got the impression it was a daddy but I don’t know—I sort of assumed but I did not ask for a specific name. It was somebody she lived with.” Ms. Porter testified that, at some point during the medical exami[639]*639nation, she asked KL to whom she was referring when she said “dad,” and KL answered, “Ken.”

Later the same day, KL was taken to the CID office where the appellant and his wife were to be interviewed. After obtaining a rights waiver, SA Gonzalez interviewed the appellant. The appellant made a sworn statement claiming that the allegations were false and that he had not touched KL inappropriately.

After completing their investigative work, and while CID personnel were conferring about how to protect KL that evening, they observed KL’s mother—appellant’s wife— talking to KL. This occurred even though investigators had arranged to keep the family separated during the interview process so as to avoid collusion or improper influence. Shortly after KL and her mother were again separated, KL told an investigator that she had made a mistake—it was Daddy Tommy,1 not Daddy Ken, who had touched her. From this point forward, aside from one notable exception during her trial testimony, KL’s story was that Daddy Tommy touched her inappropriately, not Daddy Ken.

On 3 December 1998, the appellant was readvised of his rights and interviewed again by SA Gonzalez. During this interview, appellant confessed that his earlier sworn denial of sexual abuse of KL was false. He admitted that when KL first came to live with the appellant and his wife, he was sexually aroused by KL. He made detailed admissions about the nature of his sexual attraction to KL, which included sexual fantasies about KL while bathing and touching her naked body, back, buttocks, and inner thighs.

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Cite This Page — Counsel Stack

Bluebook (online)
57 M.J. 636, 2002 CCA LEXIS 185, 2002 WL 1980837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-orourke-acca-2002.