United States v. Urbina

14 M.J. 962, 1982 CMR LEXIS 784
CourtU.S. Army Court of Military Review
DecidedNovember 26, 1982
DocketCM 442188
StatusPublished
Cited by9 cases

This text of 14 M.J. 962 (United States v. Urbina) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Urbina, 14 M.J. 962, 1982 CMR LEXIS 784 (usarmymilrev 1982).

Opinions

[964]*964OPINION OF THE COURT

BADAMI, Judge:

The main issue in this case is whether statements made by the five-year-old molestation victim to her mother and an agent, a member of the Army Criminal Investigation Division (CID), were admissible in evidence as excited utterances under Rule 803(2) of the Military Rules of Evidence.

Appellant was found guilty by the members of a court-martial of sodomy, lewd and lascivious acts, and indecent exposure in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934 (1976). He was sentenced to a dishonorable discharge and confinement at hard labor for eight years. The convening authority disapproved the sodomy conviction, approving the remaining convictions and a sentence of confinement at hard labor for four years with a reduction to the grade of Private E-l.

Appellant contends the military judge erred in: (1) permitting the victim to testify, and (2) admitting the victim’s statements concerning the crime into evidence. He also contends the evidence was insufficient for conviction, his defense counsel was incompetent, and that the staff judge advocate and convening authority abused their discretion in proceeding with a general court-martial when the investigating officer recommended dismissal of the charges. We affirm.

At about 1500 hours on 22 September 1981, the appellant asked his stairwell neighbor, Mrs. G., if her five year old daughter could come to his quarters and play with his daughter. Appellant’s wife was not home at the time. The victim went to appellant’s apartment and stayed until some time after 1600 hours when her mother brought her home.

When the victim came home, she told her mother that appellant was going to get her ice cream and candy. A short time later the victim told her mother that appellant “made magic.” When asked by her mother how he had “made magic,” she told her he “made magic with his pee-pee,” and “made milk” come out of it. She also told her mother that appellant wanted her to “suck it,” but she didn’t want to and just held it. The victim was described by her mother at this time as “a little upset.” Mrs. G. told her husband and he asked the little girl whether she told her mother the truth. When she answered “Yes,” he called the CID.

Special Agent Bowman of the CID arrived about half an hour later. The victim was upset and reluctant to talk to Bowman. Finally she told him that appellant “made magic with his pee-pee and make milk come out of it” and that he cleaned it up with a tee-shirt. She said this occurred in the bedroom.

Agent Bowman and a military police investigator Michael Goodwin apprehended appellant at his night school class and interviewed him. He denied the allegations. Bowman was preparing an affidavit for a search warrant when Goodwin asked appellant if he had masturbated that day. Appellant said that he had. When asked what he had cleaned up the ejaculation with, he said he had used a tee-shirt which he had thrown in a clothes basket. Prior to this no one had mentioned that they were looking for a tee-shirt.

Bowman and Goodwin took appellant back to his apartment to get the tee-shirt. Appellant’s wife was there and he spoke in Spanish to her. She exclaimed in English, “Ain’t I good enough for you?” She then went into the bedroom and then the bathroom ostensibly to urinate. She remained a few minutes and then dashed out of the apartment holding her stomach. The apartment was searched but the tee-shirt was not found.

Appellant testified at trial. He denied that anything had happened. He said he lied to the police when he said he masturbated and cleaned it up with a tee-shirt because he was tired of their questions and was afraid they might find a semen-stained towel or tee-shirt, which he had used for intercourse with his wife, and he wanted to save her the embarrassment of questions about their sex life.

[965]*965Mrs. Urbina also testified denying that she ever made the statement attributed to her by the police and denying that she had removed any evidence from the apartment.

Excited Utterances

Mil.R.Evid. 803(2) provides an exception to the rule prohibiting the admission of hearsay and allows admission of an “excited utterance” which is:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

As we said in United States v. Hill, 13 M.J. 882, 885 (ACMR 1982) (citations omitted):

In order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection or deliberation. The factors to be considered include lapse of time between the startling event and the utterance, as well as, the declarant’s age, physical and mental condition, the circumstances of the event, and the declarant’s basis for knowing the statements to be true and accurate.

The requirements for admissibility must be considered in the light and experience of the particular declarant. United States v. Cox, 11 M.J. 795 (AFCMR 1981). In order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection or deliberation. United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980). The factual situation here is not unlike that in United States v. Cox, supra. There the victim of an act of sodomy was a four-year-old girl. She told her father that the accused had “made ice cream.” Although the victim was more clearly excited about the events in Cox, supra, as opposed to the victim here, we do not believe the degree of excitation is the key to admissibility. Rather, it is the spontaneity of the statements. See United States v. Hill, supra. Here it is clear that the child was motivated by the event and its “magic” when she spontaneously told her mother about the magic and how it was done. When all the facts we set forth in Hill, supra, are considered, the military judge did not abuse his discretion in admitting the statements made by the girl to her parents.

As for the statements made by the victim to Bowman, assuming, arguendo, that the military judge erred in admitting such evidence, it was harmless beyond a reasonable doubt since the victim testified at trial as to the matters contained in the alleged hearsay statement.

The Victim as a Witness

Appellant contends that the five-year-old victim was incompetent as a witness because her voir dire by the military judge was casual and leading. We do not agree.

Rule 601, Mil.R.Evid. provides, “Every person is competent to be a witness except as otherwise provided in these rules.” This rule eliminates the categorical disabilities, such as extreme youth, which previously existed. S. Salzburg, L. Schinasi, and D. Schleuter, Military Rules of Evidence Manual, at 271 and 272 (1981).

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14 M.J. 962, 1982 CMR LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-urbina-usarmymilrev-1982.