Petition for Writ of Certiorari — Cottrill v. United States

a A coal al eal

‘961 600 APR 91997

O6RGE OF THE OLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

STAFF SERGEANT WILLIAM COTTRILL,

PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

MARGE A. OVERLY

Captain, United States Air Force

Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

April 1997

Paice ltt Mat nae Sb

SRA LO

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QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it held that the evidence supporting

petitioner’s conviction was legally sufficient.

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS INVOLVED....... l

SEA es OP FT GABE 655 6c bers ccvevevetss’s i

REASON FOR GRANTING THE WRIT ............. 1]

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APPENDIX A (Opinion of the United States

Court of Appeals for the Armed Forces)............... la

APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ................ 10b

U.S.

iV

TABLE OF AUTHORITIES

Supreme Court Cases:

Brown v. Walker, 161 U.S. 591 (1896) ............. 17

Jackson v. Virginia, 443 U.S. 307 (1979) .......... 1]

Miranda v. Arizona, 384 U.S. 436 (1966) .......... 17

Smith v. United States, 348 U.S. 147 (1954) ........ 15

. Court of Appeals fer the Armed Forces Cases:

United States v. Cage, 42 M.J. 139 (1995) ......... 1]

United States v. Choate, 32 M.J. 423

(COA. IGP e555 PS eas Chae es a

United States v. Harper, 22 M.J. 157

(in SE 6S a A ea ee ee ak ae aes 11

United States v. Hoggard, 43 M.J.1 (1995) ........ 13

United States v. Maio, 34 M.J. 215

is SPE ok hc eae Ce eRe SVN ES 15,18

United States v. Martindale, 30 M.J. 172

(6 Es SE Sk hho COS EER CEE baa 15

United States v. Melvin, 26 M.J. 145

Pe A: ED Gs as oo rc hk oe Ow a 15,18

United States v. Peterson, 3 C.M.R. 51

(RW OED a aed RG 0 hoa we UR a ee eee 1]

United States v. Rounds, 30 M.J. 76

(BA aes | Raa a Rica eben Piegamranierine se Diet ane ae 18,19

United States v. Turner, 25 M.J. 324

(KO REE PV Oks lek ee hes eee Ree 11

United States v. Yates, 24 M.J. 114

CLR A ho ar ak ee ee a ke ee 14,15

,

United States v. Yoeman, 25 M.J. |

FONT We, EIS Fi ice vs wets dark + Ok hE FR are eee 1S

Court of Criminal Appeals Cases:

United States v. Duvall, 44 M.J. 501

CAP TAS AUe POUOE. ie ce sc cb Ne vies Kos 14, 15

Manual for Courts-Martial:

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PE SO oe eel deh es ERe ha OE ERTS 1]

DE PUN ORES oct bk ee TO Ree RES 18

EME S| eA rere geri ee ore hue gy 14, 18

Federal Statutes:

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10 U.S.C. 867(a)

The petitioner, Staff Sergeant William Cottrill,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on 24 January 1997.

Counsel presents this writ at petitioner’s request in

accordance with the requirements of Article 70 of the UCMJ.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, awaiting publication _.MJ__

(24 January 1997), is located at Appendix A. The unpublished

opinion of the United States Air Force Court of Criminal

Appeals (A.F. Ct. Crim. App., 26 September 1995), is located

at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 24 January 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.A. § 1259

(3) (West Supp. 1996) and 10 U.S.C.A. § 867(a) (West Supp.

1996).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process clause of the Fifth Amendment of the

Constitution of the United States provides in relevant part:

“No person shall... be deprived of life, liberty, or

property, without due process of law...”

STATEMENT OF THE CASE

The petitioner and Carmen Cottrill had a child named

Charleena (R. 812). In 1990 the marriage of seven years

became rocky and Carmen left (R. 813, 1030). In August

1991, the petitioner was awarded custody of Charleena (R.

815, 1031). For a while after their separation, Carmen still

provided hygiene care for Charleena during the day. Prior to

departing for Arizona with her new husband in April 1992,

she stopped doing this (R. 815, 1031). This forced the

petitioner to learn to provide hygiene care, inter alia, for his

daughter (R. 815).

In August, 1991, the petitioner and his daughter took a

vacation to his parent’s home in Ohio (R. 816). His mother

was concerned that the petitioner was not properly washing

his daughter’s genitals, causing a rash (R. 803, 816). She

instructed him on getting rid of the rash, advising him to

thoroughly cleanse the vaginal area and apply baby powder to

it (R. 803, 804, 817).

In August, 1992, the petitioner and his daughter visited

his parents again. Mrs. Cottrill again noted that petitioner was

still not properly washing Charleena (R. 804, 805). This time,

his mother watched as he bathed his daughter, instructing him

to make sure that the pasty film covering her vaginal area was

removed to avoid her getting a sore bottom (R. 806). She

taught him that he needed to wash inside the lips of the vagina

from top to back (/d.). When he returned home he tried to

follow his mother’s advice and bathed Charleena this way

every night, applying powder or Vaseline, to his daughter’s

vaginal area with his right hand (R. 820, 821).

On 28 Oct 92, while the petitioner was fixing a snack in

the kitchen, he heard Charleena start to cry. When he came to

her in the living room, she indicated that she had hurt her

privates and pointed to a toy (R. 822, Pros. Ex. 13). The

petitioner looked at her privates to see what was wrong and he

saw what he thought was blood (R. 822). The ptitioner took

her to the emergency room and had her examined by Dr.

Houglum (R. 822, 416). Dr. Houglum found no evidence of

trauma and advised them to come back in if there was any

further pain (R. 416).

The next morning, the petitioner took his daughter to the

day care provider, Laurie Newsome, and explained to her

what had happened (R. 823). The New York Hotline, and

Child Protective Services were contacted that same day, 29

October 1992, with an allegation that Charleena was found to

have, that day, pain upon urination and bruising to the genital

area and may have had some genital bleeding (R. 780, 786).

This report was not made by the hospital (R. 416, 785). As a

result, Carrie Carpenter, a CPS worker, visited the petitioner

on 2 November 1992 and confronted him with allegations that

he abused his daughter (R. 774). He denied the allegation (R.

774).

Dr. Hickey was asked by the Family Advocacy

Specialist, Dave Richards to perform an examination of

Charleena (R. 416). Dr. Hickey is considered the person with

the most expertise, at Plattsburgh Air Force Base, in the area

of child abuse (R. 410) and is the only doctor “who sits on”

the Family Advocacy Committee (R. 457). Dr. Hickey

testified that he attended medical school for four years after

which he did a pediatric residency at Brown University for 3

years (R. 408). According to his testimony, he had been

practicing as a pediatrician a maximum of six years, including

his time as a resident, at the time of trial (R. 407). He attended

six courses in child sexual abuse since his residency (R. 410).

He reported examining hundreds of children who made

reports of being molested (/d.). He stays current on the

literature in his field “as best he can.” (/d.).

On 16 November 1992, SSgt Cottrill was told to bring

Charleena to the hospital for a follow-up exam (R. 827). Dr.

Hickey had examined Charleena previously three to four

times for ordinary childhood problems. (R. 412). Dr. Hickey

testified that during that exam he closely examined her

genitalia while Charleena was in the frog leg position (R.

419). The results of this fifteen minute exam were normal (R.

419). Dr. Hickey toid the members that the hymen—which he

defined as the membrane that covers the vaginal opening—

was “in tact” or “a complete tissue or membrane” on 16 Nov

92 (R. 423). He testified that the majority of girls Charleena’s

age have an opening in this membrane and that four to five

millimeters is the borderline for it to be enlarged (R. 450).

Although some children have a natural opening in this

membrane, his examination revealed that Charleena did not

(R. 424). The children who do have a natural opening usually

have a vertical one (R. 470).

On 8 December 1992, Charleena told her preschool

teacher that her privates hurt (R. 401), triggering a second

report to the New York Hotline (R. 402). Shortly after the

statement was made, Dave Richards at Family Advocacy and

OSI were contacted (R. 488). SA Sequeira, AFOSI, contacted

the petitioner’s First Sergeant, MSgt Auld and told him to

“have [the petitioner] come to the hospital” with his daughter

(R. 539). Dr. Hickey was called back to duty to reexamine

Charleena (R. 425).

At around 1700 hours Dr. Hickey arrived at the hospital

and met SA Sequeira, and CPS social workers. They briefed

Dr. Hickey on the nature of the allegation (R. 488, 490). He

was told that Charleena had made a disclosure at school that

her privates hurt and that her daddy had touched her privates

(R. 427).

After that briefing, Dr. Hickey led Charleena into a

nearby exam room and questioned her (R. 434). When asked

why she was there, Charleena said that she hurt (R. 434).

When he asked her where she hurt, she responded that her

privates hurt (/d.). Dr. Hickey asked her why she hurt and she

said that her daddy touches her there (R. 435). He asked her

what does daddy touch you with and she answered that daddy

touched her with his arms (/d.). When he asked her to show

him, she grabbed her vagina (/d.). Dr. Hickey diligently took

notes of the interview with the victim, occasionally

interjecting laymen’s terms in the medical notes, and later

destroying the originals after having rewritten them (R. 459,

471).

The first ten minutes of this fifteen minute exam,

Charleena’s clothing was still on (R. 458). During the five

minutes in which he examined her genitalia, Dr. Hickey didn’t

notice the presence of labial agglutination. For this exam he

used stirrups because they were available in this exam room

(R. 437). His exam revealed that the external genitalia had no

bruises or lesions, but that there now was a 5 millimeter

transverse opening in the hymen (R. 437). Dr. Hickey didn’t

believe that he could have missed this opening in the prior

exam (R. 439). Most children at Charleena’s age have an

opening in the hymen tissue (R. 450).

Dr. Hickey referred Charleena to Dr. Smith for a

colposcopy (R. 440). At trial, Dr. Hickey opined that it would

be unlikely that a toy caused the opening in the membrane

covering the hymen, since it would be difficult for it to cause

an isolated, small change like this. (R. 443). He also

confirmed that Charleena suffers from constipation (R. 467).

When Charleena came out from the examination she ran

to her dad and was going around in circles with him; she was

very happy when he was there (R. 676). When the CPS

workers asked SSgt Cottrill to come with them to make

arrangements for the child, Charleena didn’t want him to go

and was wrapping her arms around his leg (R. 676, 677).

During his absence she kept asking where he was (R. 676).

Dr. Smith examined Charleena on 10 December 1992

(Pros. Ex. 5). Dr. Smith, a professor at the University of

Vermont, and a physician at the University Health Center,

testified that she attended medical school and did a residency

in obstetrics and gynecology for four years (R. 701). She

Ee — ——— ————

practiced obstetrics and gynecology for over ten years prior to

date of exam (R. 702). She gives lectures on Child Sexual

Abuse, inter alia (R- 702). She attended a pediatric

gynecological clinic in Boston once a week for five months

and attended numerous post-graduate courses and training in

pediatric and adolescent gynecology (R. 703).

Dr. Smith defined the hymen as that “rim of tissue

around the vaginal opening at it’s external end (R. 708). Of

the three types of hymens that Dr. Smith described, she

surmised that Charleena had an annular hymen—where the

hymen tissue is all the way around, even underneath the

urethra (R. 708, 709). The child’s condition of having an

imperforated hymen is common according to Dr. Smith—only

1 in 114 children have no opening in the cover over the

hymen (R. 711). Her exam revealed that there was a

discontinuity in the ring at three o’clock, three smali bumps

on the hymenal ring between three and six o’clock, (R. 711)

and a narrowing of the ring on the right (R. 712). Dr. Smith

stated that she was unable to determine whether the

discontinuity was actually a transection (usually caused by a

penetrating injury) or a fold (R. 712). Also she stated that

since the discontinuity was on the border between being

anterior (resulting usually from a non-traumatic event) and

being posterior (something not seen in normal children) (R.

712). She testified that the bumps were insignificant as far as

an indicator of abuse, since 30% of normal children have

bumps on their hymen (R. 714). She could not confirm the

narrowing on one side because of the limitation of labial

agglutination on the exam (R. 714). However, that too could

either be congenital or the result of trauma. Of the three

categories of exams, this fell outside of all of them because

she could not get an adequate exam of the child’s hymen ring

(R. 716). Finally, she testified that the evidence is that straddle

injuries do not tend to injure the hymen (R. 733).

After Charleena’s examination at the base hospital on 8

December 1992, the OSI agents took the petitioner, along

with Charleena, dropped her off at a friends house, went

through the Burger King drive thru to get dinner, and then

went to the OSI office (R. 491, 829). At 1910 hours they were

at the OSI building (R. 491, Pros. Ex. 7). Within 12 minutes

the OSI began questioning the petitioner about what he had

done to his daughter (R. 491, Pros. Ex. 7).

Within one minute of the start of the interview SA

Sequeira, the primary interviewer, read the petitioner his

rights and the petitioner waived those rights (R. 492). SA

Andreini, the assistant interviewer was responsible for taking

notes during the interview and was present throughout the

interview and typing of the statement (R. 492, 833). All three

sat in a small six by eight room, the petitioner with his back

against the wall, facing a table separating him from the two

OSI agents and exit door (R. 829). After reading the petitioner

his rights, OSI discussed the results of Dr. Hickey’s exam and

talked about how the petitioner bathed his child. The

petitioner explained step by step how he bathed his daughter,

including the application of baby powder and Vaseline (R.

493). The petitioner denied inserting his finger in Charleena’s

vagina. He admitted that he touched her privates when he

bathed the child and applied the baby powder and Vaseline

(Id.). He admitted that occasionally he would get an erection

from this and would masturbate after she was asleep (R. 831).

He explained that due to a chain saw accident he didn’t have

much feeling in some of his fingers so he didn’t know how

much pressure he used in washing his daughter and may have

scratched or caught her without knowing it (R. 832, 495). The

petitioner was bewildered, confused and tired (R. 833). After

over three hours, the petitioner agreed to sign a written

statement and the interview ended at 2245 hours (R. 494).

SA Sequeira began typing a statement onto a computer

Le

using his memory and SA Andreini’s notes (R. 494, 834).

According to SA Sequeira, the petitioner helped them with

spelling and grammatical errors (R. 496). SA Sequeira

inserted terms in the statement that he determined described

what the petitioner had related to him based upon the agent’s

stint as a medical technician (R. 501). SA Sequeira testified

that these terms were discussed with SSgt Cottrill (R. 501).

However, SA Andreini does not recall such discussions (R.

159). At 2415 hours, the petitioner signed the statement that

his fingers may have hurt Charleena when he put powder on

her (R. 504; Pros. Ex. 8).

SA Sequeira testified that both he and SA Andreini were

tired that evening (R. 92). During the interview, the petitioner

consented to a search of his quarters (R. 504). That search of

his quarters began at 0030 and ended at around 0200 hours

(R. 505, 836). The only things discovered were a jar of

Vaseline, a bottle of baby powder, and three used pale blue

tissues or rags (R. 507-509; Pros Ex. 15, 16, 17). After the

search, the petitioner tried but wasn’t able to get much sleep

because he was too upset (R. 837). He was awake at 0430

hours and was at work at about 0630 hours (/d.)

On 9 Dec 92, at lunch time, OSI directed MSgt Auld to

bring the petitioner to their office (R. 674). He drove SSgt

Cottrill to the OSI building (R. 838). He noted that SSgt

Cottrill appeared tired (R. 675). At OSI, SSgt Cottrill was met

by SA Sequeira. The petitioner told SA Sequeira that he

hadn’t had much sleep and was tired (R. 838). SA Sequeira

responded that he “didn’t get much sleep either” because he

was up doing paperwork last night (R. 838). SA Sequeira had

returned to the detachment after the search the prior evening

and taken care of the seized evidence (R. 510).

The petitioner was led into the same room as before, this

time without the table (R. 838). He was joined by SA

Sequeira and Officer Larry Bliss, of the New York State

Police (Id.). SA Sequeira had called Officer Bliss the previous

evening to request his assistance (R. 838, 510).

Both SA Sequeira and Officer Bliss read the petitioner

his rights. Officer Bliss was the primary questioner and SA

Sequeira took notes (R. 512, 838). Officer Bliss was seated

such that his knees touched SSgt Cottrill’s and during the

interview he periodically placed his hand on SSgt Cottrill’s

shoulder (R. 838, 514). SSgt Cottrill testified that Officer

Bliss told him that the only thing that kept him from running

SSgt Cottrill downtown was that it looked like he was

cooperating, and if he stopped cooperating, then he would go

downtown to jail and they would probably kill him there

because of the nature of the charges (R. 838). Officer Bliss’

tone was stern, firm, and authoritative (R. 543, 839). Officer

Bliss testified that he didn’t recall SSgt Cottrill telling him

that he stopped bathing his child, or that he didn’t know why

he had done that (R. 591). These statements however,

appeared on the final written AF Form 1168. Until the end of

the interview the petitioner consistently denied inserting his

finger in his daughter’s vagina (R. 514). At the end of the

interview, he admitted to his finger slipping in once and

thereafter inserting his finger into her vagina on different

occasions, until a couple weeks prior to the interview (R. 514,

Pros. Ex. 11). Bliss left at the end of the interview, 1435

hours, without receiving any interview notes or statements.

SA Sequeira typed a statement which SSgt Cottrill later

signed (R. 515, 517). After signing the statement, MSgt Auld

took the petitioner to see Lt. Col. Ward, Family Advocacy

Officer (R. 842). At that time, the petitioner appeared sad,

unhappy, and discouraged (R. 602). MSgt Auld told Lt. Col.

Ward that there were Child Sexual Abuse allegations against

SSgt Cottrill (R. 594). SSgt Cottrill told Lt. Col. Ward that he

touched Charleena’s privates to bathe her, but he didn’t think

he had done anything wrong (R. 595).

10

The next day, SSgt Cottrill called Lt. Col. Ward inquiring

on the status of the investigation (R. 603). Lt. Col. Ward

explained that these things take a while (/d.). On 11

December 1992 SSgt Cottrill went to Lt. Col. Ward’s office

and said that he couldn’t remember what he had said to Lt.

Col. Ward or OSI on 9 Dec 92 (Id.).

In sentencing, Charleena’s mother, Carmen Sanders, said

that after Charleena had heart surgery on 21 Mar 93 to correct

a condition she was born with, she recovered very well (R.

1036). Charleena returned to preschool, which runs three days

a week from 0800 to 1200 hours, and completed it for the

year (R. 1037, 1038). Charleena went to a counselor for the

sexual abuse, who didn’t diagnose any problems, but

determined that Charleena would be easy to work with since

she was very outgoing and was playing with everything in the

room (R. 1038). Ms. Sanders testified that Charleena plays

and swims a lot and has never shown any behavioral signs of

sexual molestation (R. 1042). She gets along well with her

new stepfather (R. 1039). Carmen wanted Charleena and her

father to be together because Charleena loves her daddy

deeply (R. 1038).

On 21-28 July 1993, the petitioner was tried by a general

court-martial of two specifications of indecent acts upon a

minor. The court-martial convicted him of one specification

for committing indecent acts upon his minor daughter

between 31 August 1991 and 1 January 1993. The approved

sentence was a dishonorable discharge, confinement for six

years, and reduction to airman basic. The Air Force Court of

Criminal Appeals affirmed the findings as correct in law and

fact, but found that the sentence was inappropriately severe.

The Court reduced the sentence to four years. The U.S. Court

of Appeals for the Armed Forces held that the evidence and

the confession were sufficient to support conviction as a

matter of law.

11

REASON FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES ERRED WHEN

IT HELD THAT THE EVIDENCE SUPPORT-

ING PETITIONER’S CONVICTION WAS

LEGALLY SUFFICIENT.

The test for legal sufficiency is whether the evidence,

viewed in the light most favorable to the prosecution, is such

that a reasonable fact finder could have found all the essential

elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307 (1979); United States v. Harper, 22

M.J. 157, 161 (C.M.A. 1986); United States v. Turner, 25 M.J.

324 (C.M.A. 1987). Mere suspicion that something improper

must have happened, with no direct or circumstantial

evidence establishing what happened, is not sufficient. United

States v. Cage, 42 M.J. 139, 144 (1995), citing, United States

v. Peterson, 3 C.M.R. 51, 54 (C.M.A. 1952).

To support the petitioner’s conviction of the charged

indecent acts to a minor, the government had the burden to

prove the following elements: (1) the accused, on diverse

occasions between on or about 31 August 1992 and on or

about 1 January 1993, rubbed Charleena Cottrill’s vaginal

area and placed his finger inside her vagina; (2) Charleena

was under the age of 16 at the time and not the petitioner’s

spouse; (3) these acts were indecent; (4) the petitioner

committed the acts with the intent to arouse, appeal tc, or

gratify the lust, passions, or sexual desires of the accused; and

(5) the conduct was prejudicial to good order and discipline or

of a nature to bring discredit upon the armed forces. Article

134, 187. (UCMJ, MCM 1984).

The government’s case consisted of six witnesses and

twenty one exhibits. The six witnesses were a day care

provider, two OSI agents, a New York State police detective,

a pediatrician, and the family advocacy officer. Ms.

———e

12

Kulaszewski, the day care provider, testified that on 8 Dec 92

Charleena said that her privates hurt. (R. 401). Dr. Hickey, the

examining pediatrician, testified as to the opening in the

membrane covering the vagina (R. 406-480), and Charleena’s

statement, in response to his questions, that her privates hurt

because her father touches her there with his arms (R. 435).

The two OSI agents, SA Sequeira and SA Andreini, testified

about the petitioner’s interviews and the search of the

petitioner’s quarters (R. 485-567; R. 567-578). The NYSP

detective Bliss testified as to his interview of the petitioner (R.

579-592). Lt. Col. Ward, the Family Advocacy Officer,

testified about his conversation with petitioner after the

second visit to OSI (R. 593-617).

The exhibits presented by the government consisted of

medical notes from four exams of Charleena (Pros Ex. 1-3,

5), a picture of the victim (Pros. Ex. 4), notes and interview

records from OSI (Pros Ex. 6, 7, 9, 10), a diagram of the

female genitalia (Pros Ex. 12), a toy (Pros Ex. 13), dirty rags

and tissues (Pros Ex. 15), baby powder and Vaseline (Pros Ex.

16, 17), and family advocacy and child protective services

notes (Pros. Ex. 19, 20, 21). Finally, the government

presented the original and a copy of the petitioner’s

confessions (Pros. Ex. 8, 11, 14, 18).

The petitioner’s confessions were the sole evidence that

the petitioner rubbed the daughter’s vagina and inserted his

finger in her vagina. In fact, the members acquitted the

petitioner of the other charge against him; that charge was not

supported by the confession. The petitioner made two

statements to OSI when they brought him into their office.

The first statement, on 8 December 1992, in summary

admitted to his touching his daughter’s vaginal area in the

process of bathing her, because it made her feel good and

relaxed her. He denied ever placing his finger inside her

vagina. In the second statement, made the following day, the

13

petitioner stated that his finger slipped into his daughter’s

vagina while bathing her in September 1992 and that

thereafter he put his finger in her vagina for 10-15 seconds,

without rotating it, and she said it made her feel good. In that

second statement he admitted to getting an erection from this

and masturbating out of the presence of the child. He stated

that he stopped touching her privates two weeks prior to the

statement.

Assuming the reliability of the confessions, the key

question here is what evidence’ proves that the petitioner’s

rubbing his daughter’s vagina and inserting his finger in her

vagina, during bathing, was done with the intent to gratify his

lust or sexual desires. United States v. Hoggard, 43 M.J. 1

(1995). The medical testimony presented at trial was

inconclusive as to what occurred and so does not support any

inference as to intent. The statements of the daughter were

ambiguous and consistent with the theory purported by the

defense, that is, that the petitioner touched her privates to

bathe her. The pretrial statements of the petitioner do not

expressly state that he touched his daughter’s privates with

the intent to gratify his sexual desires. Thus, the only evidence

that the petitioner intended, at the time of the act, to gratify

his sexual desires had to be derived circumstantially. That is,

the fact finder would have to have drawn an inference from

pretrial statements based upon the petitioner’s state of mind

subsequent to the act, represented by his statement that he got

erections when doing this and later masturbated out of the

child’s presence (Pros. Ex. 14, 18). From this, the fact finder

had to deduce that the petitioner’s actions were designed or

intended to achieve this result. Without more this inference is

tenuous. Applying this inference to the act of rubbing her

vagina with powder, is even more flimsy.

An equally reasonable inference could be drawn from the

evidence that the petitioner was simply bathing the child, as

14

he said, because he had no choice as the sole custodian. The

record presents evidence that this was a father with little

experience, who was thrust into the position of full custody of

his child after the wife deserted them. He attempted to bathe

her privates the way his mother recommended since she had

indicated his failure in this area was causing the child

discomfort. His mother instructed him, on at least two

occasions, that he needed to wash her better in her privates.

The proof supported the proposition forwarded by the

petitioner that he rubbed powder or Vaseline on her vaginal

area after bathing her (Pros Ex 13 & 14). When he put powder

on her and cared for her in this area he had to some extent to

rely upon what made the child feel comfortable. He found that

this did make the child feel good and relaxed her.

Drawing the inference that the petitioner intended to

gratify his sexual desires by doing these acts is not

reasonable. So, even assuming the reliability of the

confessions, the conviction fails for lack of evidence on the

element of intent.

However, any reasonable trier of fact would not have

attached much weight to these confessions. “...it is for the trier

of fact to determine whether the evidence as a whole is

sufficient to establish all elements of the offenses beyond a

reasonable doubt.” United States v. Yates, 24 M.J. 114, 117

(C.M.A.), cert. denied, 484 U.S. 852 (1987). R.C.M. 304(g)

provides that the amount and type of evidence introduced as

corroboration is a factor to be considered by the trier of fact in

determining the weight, if any, to be given to the admission or

confession. The question as to the level of corroboration of

the confession remains a factor in assessing the weight a

reasonable fact finder could assign to the admissions made by

the petitioner. See, United States v. Duvall, 44 M.J. 501, 506

(A.F.Ct.Crim.App. 1996)(J. Pearson, dissenting). The

members were instructed that the nature of corroborating

15

evidence was to be considered in determining the weight to be

given to the pretrial statements (R. 1008). Additionally, the

government counsel argued that “the law requires that a

confession be corroborated” (R. 977).

Although the military judge is responsible to decide the

preliminary question of whether the confessions were

adequately corroborated, the members are still faced with the

question of the appropriate weight to attach to the

confessions. See, Duvall, Id. Herein, a reasonable factfinder

could not have attached great weight to these confessions for

the following reasons.

First, the issue of whether the statements were

voluntarily made was hotly contested during pretrial motions

and the case in chief. This fact goes against drawing an

inference as to the truthfulness of these confessions. Cf,

United States v. Maio, 34 M.J. 215 (C.M.A. 1992); United

States v. Martindale, 30 M.J. 172 (C.M.A.), rev‘d on other

grounds, 32 M.J. 33 (1990); United States v. Melvin, 26 M.J.

145 (C.M.A. 1988); United States v. Yates, 24 M.J. 114

(C.M.A. 1987); United States v. Yoeman, 25 M.J. 1 (C.M.A.

1987).

The Supreme Court stated in Smith v. United States, 348

U.S. 147, 153, 75 S.Ct. 194, 197, 99 L.Ed.192 (1954):

“Though a statement may not be ‘involuntary’

within the meaning of this exclusionary rule, still its

reliability may be suspect if it is extracted from one

who is under the pressure of a police investigation

whose words may reflect the strain and confusion

attending his predicament rather than a clear

reflection of his past. Finally, the experience of the

courts, the police and the medical profession

recounts a number of false confessions voluntarily

made... . These are the considerations which

16

justify a restriction on the power of the jury to

convict, for this experience with confessions is not

shared by the average juror.”

The facts suggesting that the petitioner had succumbed to

the pressures of the interrogations are set forth below. SA

Sequeira testified that the first interview began after the

petitioner’s daughter had been taken away, at about 1900 and

lasted until midnight (R. 494). The petitioner appeared

nervous (R. 495). SA Sequeira was tired (R. 541). OSI did not

leave the petitioner’s house on the 8th of December until 0200

hours (R. 505). His First Sergeant testified that the petitioner

stated that he was tired and appeared tired on the trip to OSI,

the following day, 9 Dec 92 (R. 675). That day, Detective

Bliss conducted this second interview of the petitioner (R.

581). He had a firm, authoritative and stern voice (R. 543).

The petitioner did not admit to putting his finger inside his

daughter until the end of this interview (R. 591). Immediately

after the interview, the petitioner told Lt. Col. Ward that he

didn’t understand what he had done wrong and told him that

he touched his daughter’s privates in the process of bathing

her (R. 595).

No evidence suggested that the petitioner had any

previous experience with law enforcement officials. The

evidence suggests that the petitioner was upset, confused, and

legitimately tired (R. 675, 838). Even the OSI agents were

tired during their interviews (R. 92, 510, 838). A review of

SSgt Cottrill’s performance reports demonstrates that he is not

of superior or especially quick intellect. Rather he is one who

constantly struggles to understand and improve (Pros Ex. 23).

Moreover it is well established in the record that the

petitioner’s daughter was very important to him. It is

consistent with this evidence that the petitioner, who learned

to survive in the military by complying with orders and trying

to please his superiors, would foilow suit with the government

17

officials conducting the interviews which he was escorted to

by his First Sergeant. It is consistent that the petitioner

believed that if he did the best that he could to please his

interviewers, he would succeed in getting his daughter back

and ending this nightmare. The interviewers were skilled

enough to pick up on this and use tactics designed to gain the

confidence of the person (R. 586) and thereby induce them to

make incriminating statements. It was clear that the petitioner

was a weak minded person who was prone to follow orders

and was already upset by the status of his daughter.

Second, the facts in the confessions conflict. Only one of

the confessions can legitimately be believed. The question is,

which one. If the trier of fact finds that the petitioner is lying

as to some of the information in the confessions, then the

reliability of the other statements is brought into question. It is

insufficient for the fact finder to conclude that because the

petitioner was untruthful in his statements he committed the

crimes. Moreover, the petitioner testified on the stand, on

direct exam and under a grueling cross-examination, that he

did not insert his finger in his daughter’s vagina, and only

rubbed her vagina in order to bathe her (R. 811-970)

Third, the fact that there was little if any corroboration of

the essential facts of the confessions tips the scales

substantially in favor of the petitioner. See, argument below.

Admissions and confessions, when voluntarily and freely

made, have always ranked high on the scale of incriminating

evidence. Brown v. Walker, 161 U.S. 591 (1896). When

corroborated they have the highest reliability and significantly

contribute to the certitude with which we may believe the

accused’s guilt. Miranda v. Arizona, 384 U.S. 436, 538

(1966).

Because the corroboration issue was not expressly raised

at trial, and is raised at this point for the first time on appeal,

arguably, a plain error standard of review could be applied.

sence

18

Mil.R.Evid. 103. However, in United States v. Melvin, 26 M.J.

145 (C.M.A. 1988), this Court declined to decide the issue on

the basis of waiver, though justified in doing so. In this case,

the Court should not decide this case on the basis of waiver.

Even if this Court applies a plain error analysis, the

standard is met here where the admission of these

confessions, which lacked even slight corroborating evidence,

was both obvious and substantial error. Generally a

confession is corroborated when independent evidence

supports its truthfulness or reliability. United States v. Melvin,

26 M.J. 145 (C.M.A. 1988). Although there is no

mathematical formula to measure sufficient corroboration for

admission of confessions, the CANF had previously looked at

the following factors: voluntariness, vagueness, and how well

the independent evidence dovetails with the statements in the

confession. See, Melvin, Id.; United States v. Rounds, 30 M.J.

76 (C.M.A.), cert. denied, 498° U.S 846 (1990); United States

v. Maio, 34 M.j. 215 (C.M.A. 1992). The amount of

corroboration needed in the military is very slight. Melvin,

supra.

As noted above, there remains some doubt as to the

- voluntariness of this confession and concomitantly its

reliability.

In contrast with a confession replete with detail, where

there exists a generous opportunity for corroboration, the

confessions here are general in nature. That makes them more

difficult to corroborate. See, Rounds, 30 M.J. 76 (C.M.A.

1990)(J, Everett, concurring in part). In his opinion, Judge

Everett contrasts the case in Rounds with the example of

corroboration given in the analysis to Mil.R.Evid. 304(g). The

drafters’ hypothetical being as follows:

[P]resume that an accused charged with

premeditated murder has voluntarily confessed that,

intending to kill the alleged victim, she concealed

19

herself so that she might surprise the victim at a

certain place and that when the victim passed by,

she plunged a knife in his back. At trial, the

prosecution introduces independent evidence that

the victim was found dead as a result of a knife

wound in his back at the place where, according to

the confession, the incident occurred. This fact

would corroborate the confession because it would

support an inference of the truth of the essential

facts admitted in the confession.

Drafters’ Analysis, MCM (UCMJ 1984) at A22-13. Judge

Everett opines that in that example, the prosecution’s

opportunity for corroborating the confession is ample due to

the detail of the confession: identity of the victim, instrument

used to kill him, locus of the fatal wound, and place where the

murder occurred. Rounds, 30 M.J. at 84.

In this case, as in Rounds, the prosecutor was not so

fortunate. Here the statemerit was vague as to the petitioner’s

intent and purpose in doing the acts. The petitioner steadfastly

held to the fact that this was done in the process of bathing

and caring for the child, rather than as a means to excite him

sexually. Further, it was not until the end of the second

interview that the petitioner suggested that he inserted his

finger into her vagina and got an erection. There is no

independent evidence corroborating this act or his intent to

gratify the petitioner’s sexual desires.

What few details were stated in the confessions fail to

dovetail with the other evidence presented at trial. The

medical evidence was ambiguous and therefore provided no

corroboration. The results of Dr. Smith’s examination were

normal. The child’s statements that her dad touches her in her

vaginal area provide no support for the proposition that the

petitioner sexually abused his child for his sexual pleasure by

placing his finger inside her vagina. She stated only that her

20

dad touched her privates. She demonstrated by taking her

whole hand and grabbing her vaginal area. She did not take

her finger to make this gesture. Her demonstration of how her

father touched her does no more than confirm that he washed

her. Thus, even under the low standard for corroborating

evidence, this evidence provided no independent

corroboration of the confessions. Admitting the confessions

was an obvious and substantial error.

Without the confessions, the evidence is woefully

inadequate to support the conviction. The fact finder is left

with evidence of the daughter’s statements and medical

evidence.

The medical evidence is inconclusive. Clearly, the more

credible testimony on the matter of the medical examination

was that of Dr. Smith. She was more qualified than Dr. Hickey

and had the opportunity to do a more thorough examination

using magnification that Dr. Hickey simply did not have. In

fact, that was the basis for Dr. Hickey referring Charleena to

Dr. Smith (R. 440). Further, she was more familiar with recent

developments in this area being an instructor on the post

graduate level. Her conclusion was that this examination was

indeterminate, that is, it could not be defined as normal or

abnormal due to the inability to more closely examine. It

neither confirmed nor dispelled the allegations of abuse.

The statements made by the victim were inconclusive.

Notably, Charleena, dic not testify at any point in the pretrial

or trial proceedings. The only evidence we heard from

Charleena was through the testimony of the child care

provider, Ms. Kulaszewski, and Dr. Hickey. Ms Kulaszewski

testified that the child told her that her privates hurt on 8 Dec

92 (R. 401). Dr. Hickey testified that the child told him that

her privates hurt because her father touches her with his arms

(R. 435). These statements suggest only that the child’s

privates were hurting and that her father touches her privates.

21

This is consistent with his having washed her privates as

instructed by his mother and that this washing was the cause

of the pain.

Without the petitioner’s statements there would be no

evidence as to his intent or as to the indecency element. The

indecency element is only satisfied by the evidence in the

confession that indicates that he placed his finger into his

daughter’s vagina. Had there been no confession, and

considering all the circumstances surrounding the alleged act

the evidence remaining would clearly have been insufficient

to sustain the conviction. See, United States v. Choate, 32

M.J. 423 (C.M.A. 1991).

CONCLUSION

The evidence is insufficient to sustain petitioner’s

conviction of indecent acts upon his daughter, since a rational

fact finder could not have found the elements of intent. The

fact that a rational fact finder could not have attached much

weight to the confessions—due to their lack of corroboration

and involuntariness—furthers the problems with the

government’s evidence. Even applying a plain error analysis

the error of allowing the confessions to come in without

adequate corroboration was obvious and substantial. Clearly,

without the petitioner’s pretrial statements the prosecutions

case fails.

MARGE A. OVERLY, Capt, USAF

Counsel of Record

Appellate Defense Counsel

Air Force Legal Services Agency

United States Air Force

202-767-1562

la

APPENDIX A

UNITED STATES, Appellee

v.

William O. COTTRILL, Staff Sergeant

U.S. Air Force, Appellant

No. 96-0138

Crim. App. No. 30951

United States Court of Appeals for the Armed Forces

Argued October 3, 1996

Decided 24 Jan. 1997

Counsel

For Appellant: Captain Marge A. Overly (argued); Colonel

Jay L. Cohen (on brief); Major Ormond R. Fodrea.

For Appellee: Captain Mitchel Neurock (argued); Lieutenant

Colonel Michael J. Breslin and Major Allen G. Erickson (on

brief); Colonel Theodore J. Fink.

Military Judge: William S. Colwell

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, UCMJ, 10 USC § 934. He

was sentenced to a dishonorable discharge, confinement for 6

years, and reduction to E-1. The Court of Criminal Appeals

reduced his sentence to a bad-conduct discharge, confinement

2a

for 4 years, and reduction to E-1. United States v. Cottrill, CCA

30951 (A.F. Ct. Crim. App. 26 September 1995) (unpub.).

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 the 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 admissibility of

these statements and claimed that he hadn’t done

anything wrong.

-Unpub. op. at 2.

3a

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

“jt 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. Hoggard, 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 for whether, considering the

evidence in the light most favorable to the prosecution, any

4a

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 (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 1/2 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, 364 (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

5a

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 offense in a particular case, 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 1/2 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. In our view, a

reasonable factfinder could conclude that appellant’s actions

were indecent under all the circumstances of this case. See

United States v. Tindoll, supra.

Appellant also contends that his pretrial statements do

not establish that he touched his daughter with an intent to

gratify his sexual desires, and that there was no other

evidence of this specific intent. See pare. 87b(1)(d), Part IV,

Manual, supra. Admittedly, appellant did not expressly state

in his pretrial statements that he had such a sexual intent.

6a

However, direct evidence of sexual intent is not required for

conviction of indecent acts with a child, and ample

circumstantial evidence of such an intent did exist in this case.

See generally United States v. Sakaye, 11 USCMA 680, 681,

29 CMR 496, 497 (1960). Most strikingly, appellant admitted

sexual arousal and excitement when powdering his daughter

and inserting his finger into her vagina. He also admitted to

masturbating after these touchings but not in her presence.

Such ev‘dence circumstantially showed that appellant touched

his dauguter with an intent to gratify his sexual desires. See

United States v. Sever, supra; United States v. Sanchez, 11

USCMA 216, 219, 29 CMR 32, 35 (1960).

Perhaps sensing the inherent weakness of his initial

arguments in this case, appellant adopts an alternative

approach to the legal insufficiency question. He notes that his

conviction, if sustainable at all, was largely dependent on his

pretrial statements. He alternatively contends that these

pretrial statements to law enforcement agents were

inadmissible because they were involuntary and lacked

sufficient corroboration. See Mil.R.Evid. 304(a) and (g),

Manual, supra. Accordingly, on this basis he persists in his

claim that his conviction for indecent acts was based on

legally insufficient evidence.

The voluntariness of a confession depends on “the totality

of all the surrounding circumstances—both the characteristics

of the accused and the details of the interrogation.” United

States v. Martinez, 38 MJ 82, 86 (CMA 1993), citing

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); accord

Arizona v. Fulminate, 499 U.S. 279, 285 (1991). The

Government must prove voluntariness by a preponderance of

the evidence. United States v. Martinez, supra at 87.

Voluntariness of a confession is ultimately a legal question, see

Miller v. Fenton, 474 U.S. 104, 110 (1985), and this Court

owes no deference to the appellate court below or the military

ee

7a

judge in deciding this question. United States v. Martinez,

supra at 86; Mincey v. Arizona, 437 U.S. 385, 398 (1978).

The military judge’s special findings of fact, unless

clearly erroneous, are the basis upon which we rely to

determine the voluntariness of an accused’s confession. See

United States v. Martinez, supra at 86 (“[M]ilitary judge’s

detailed findings . . . surely do offer support to a legal

conclusion of involuntariness.”); Jd. at 87 (Sullivan, C.J.,

concurring) (“[MlJilitary judge’s factual conclusion . . . is

deserving of great weight in the voluntariness analysis.”). The

military judge here found as fact that appellant was read his

rights; he waived them on an Air Force Form 1168; he was

not threatened by law enforcement officials; he was

cooperative during the interview; he swore to an oath that the

Statement was voluntary and truthful; he made several pen

and ink changes to the statement; and then signed it.

Admittedly, there was also evidence in the record that he

was tired and distraught about his daughter during the two

interviews by law enforcement agents; that his interrogators

acted in an authoritative manner and that he was a “weak

minded person.” Such evidence, however, does not dictate a

conclusion that appellant’s confession was involuntary. See

United States v. Robinson, 26 MJ 361, 366-67 (CMA

1988)(appellant’s “weak character” did not make cunfession

involuntary). Moreover, the record as a whole does not

Support a finding that appellant was so tired that his will was

overborne. See Boggs v. Bair, 892 F.2d 1193, 1199 (4th Cir.

1989)(record supported finding that defendant was not “so

intoxicated that his will was overborne”). Finally, we are

persuaded that the interrogators’ manner, appellant’s concern

for his daughter, and his subservient personality did not lead

him to falsely incriminate himself. See Colorado v. Connelly,

479 U.S. 157 (1988); United States v. Morgan, 40 MJ 389,

394 (CMA 1994); cf. Mincey v. Arizona, supra.

8a

Appellant’s second argument in support of the

inadmissibility of his pretrial statements is that they lacked

sufficient corroboration, and therefore, that the military judge

erred in admitting them into evidence. He asserts that his

admission that he inserted his finger into his daughter’s

vagina with an evil intent was not shown by other evidence to

be trustworthy. In making this argument, he relies on our case

law and Mil.R.Evid. 304(g). The latter states:

An admission or a confession of the accused may be

considered as evidence against the accused . . . only

if independent evidence, either direct or

circumstantial, has been introduced that

corroborates the essential facts admitted to justify

sufficiently an inference of their truth.

The corroboration requirement for admission of a

confession at court-martial does not necessitate independent

evidence of all the elements of an offense or even the

corpus delicti of the confessed offense. See United States v.

Maio, 34 MJ 215, 218 (CMA 1992). Rather, the

corroborating evidence must raise only an inference of truth

as to the essential facts admitted. /d.; United States v.

Rounds, 30 MJ 76, 80 (CMA 1990). Moreover, while the

reliability of the essential facts must be established, it need

not be done so beyond a reasonable doubt or by a

preponderance of the evidence. United States v. Maio, supra

at 218 n.1; see United States v. Melvin, 26 MJ 145, 146

- (CMA 1988) (quantum of corroboration needed “very

slight”); United States v. Yeoman, 25 MJ 1, 4

(1987)(corroboration needed “slight”). This low standard

notwithstanding, we closely analyze the evidence in every

case before us to determine whether a confession has been

sufficiently corroborated. See United States v. Rounds,

supra at 218-19; see generally C.A. Wright, Federal

Practice and Procedure § 414 (1982).

9a

In the case sub judice, appellant expressly admitted that

he inserted his finger into his daughter’s vagina for 10-15

seconds on several occasions under circumstances indicating

he derived sexual gratification from these acts. The

trustworthiness of his admissions to these acts of sexual abuse

was supported by other evidence in the record. First, Doctor

Hickey testified that during a medical examination of

appellant’s daughter (CC), the young giri said her ‘iprivates”

hurt. That same doctor also testified that CC then said, “[M]y

Daddy touches my privates,” as the reason why she hurt.

Finally, Doctor Hickey testified that after multiple

examinations of CC, there appeared to be an unnatural

opening in CC’s hymen, and it was his Opinion that it was

caused by sexual abuse. This evidence tends to show that

sexual injury was inflicted on appellant’s daughter and

Supports appellant’s pretrial admissions to the acts causing

such injury. See United States ¥. Snearley, 15 USCMA 462,

465-66, 35 CMR 434, 437-38 ( 1965).

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judges CRAWFORD, GIERKE,

and EFFRON concur.

10a

APPENDIX B

UNITED STATES

v.

Staff Sergeant William O. COTTRILL

FR290—-60—7573

United States Air Force Court of Criminal Appeals

ACM 30951

26 September 1995

Synoposis

Sentence adjudged 28 July 1993 by GCM convened at

Plattsburg Air Force Base, New York.

Military Judge: William S. Colwell.

Attorneys

Approved sentence: Dishonorable discharge, confinement for

6 years, and reduction to E-I.

Appellate Counsel for Appellant: Colonel Jay L. Cohen,

Lieutenant Colonel Frank J. Spinner, Captain Robert I. Smith,

and Captain Marge A. Overly.

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise and Major Jules D. Silberberg.

Judge

Before DIXON, SCHREIER, and STARR Appellate Military

Judges

lla

OPINION OF THE COURT

Text of the decision

SCHREIER, Judge:

Contrary to his pleas, members convicted appellant of

divers incidents of indecent acts with his 3 1/2-year-old

natural daughter. They acquitted him of a single indecent act

with another 12-year-old female. Article 134, UCMJ, 10

U.S.C. Sec. 934 (1988). Members sentenced appellant to a

dishonorable discharge, confinement for 6 years, and

reduction to E-1. Appellant now asserts six errors concerning

the admissibility of his statements, the victim’s hearsay

statements to the doctor, and other background information,

the appropriateness of trial counsel’s arguments, factual and

legal sufficiency of the findings, and sentence severity. We

find that the sentence is inappropriately severe and reassess.

Otherwise, we find no prejudicial error.

FACTS

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 admissibility of these

statements and claimed that he hadn’t done anything wrong.

12a

MEDICAL EXCEPTION TO THE HEARSAY RULE

Appellant alleges that CC’s statements to Dr. Hickey that

her daddy touched her are inadmissible because Dr. Hickey

was acting as part of the law enforcement team and was not

evaluating CC for treatment purposes. Appellant further

alleges that his Sixth Amendment confrontation rights were

violated because CC did not testify at trial.

Statements made for purposes cf medical diagnosis or

treatment are admissible as an exception to the hearsay rules.

Mil.R.Evid. 803(4). The declarant must have an expectation

that being truthful will help and that making the statement is

for the purpose of diagnosis or treatment. United States v.

Armstrong, 36 M.J. 311, 313 (C.M.A. 1993); United States v.

Siroky, 42 M.J. 707 (AF Ct. Crim. App. 1995) (en bane).

When the declarant is a child, courts have applied a relaxed rule

in determining whether the child had the necessary expectation

that being truthful will help the child feel better. United States

v. Avila, 27 M.J. 62 (C.M.A. 1988); United States v. Lingle, 27

M.J. 704 (A.F.C.M.R. 1988), pet. denied, 28 M.J. 455 (C.M.A.

1989). Additionally, while the declarant need not make a

formal declaration that the statements are made for medical

purposes, there must be some evidence to support that

inference. United States v. Ureta, 41 M.J. 571, 576 (AF Ct.

Crim. App. 1994). We evaluate the military judge’s decision to

admit hearsay testimony under an abuse of discretion standard.

United States v. Dorsey, 38 M.J. 244, 246 (C.M.A. 1993).

Dr. Hickey had previously examined CC approximately

6 or 7 times for either routine examinations or minor

illnesses, as well as monitoring her congenital heart problems.

CC complained to both her preschool teacher and Dr. Hickey

that “her privates hurt.” It is reasonable to believe that she

made these statements in an effort to seek help in feeling

better. Thus, the expectation prong of Armstrong is met.

Compare Siroky, 42 M.J. at 714.

13a

Appellant further argues that the medical diagnosis prong

was not met because Dr. Hickey was acting as a government

agent. Appellant claims that the doctor had no need to ask CC

questions, but should have merely conducted a physical

examination. We find such a proposal absurd. Information as

to what happened will determine whether additional testing,

such as for venereal diseases, is necessary. The fact that the

doctor was aware of the child’s admissions to a teacher does

not change the need to confirm the statement. In fact, this

hearsay exception is grounded on the belief that individuals

are honest when seeking medical treatment. Therefore, the

medical personnel should confirm the prior statements to

ensure the person is providing truthful information.

Finally, appellant argues that the statements are not

admissible because there was not a sufficient showing that

CC was unavailable to testify at trial. The medical exception

to the hearsay rule does not require that the declarant be

unavailable. Mil.R.Evid. 803(4). As a “firmly rooted”

exception to the hearsay rule, the medical exception

inherently provides guarantees of trustworthiness which

satisfy the Confrontation Clause of the Sixth Amendment.

United States v. Clark, 35 M.J. 98, 105 (C.M.A. 1992).

Appellant’s argument is without merit. There was no violation

of the Confrontation Clause. The military judge did not abuse

his discretion in admitting this evidence.

VOLUNTARINESS OF APPELLANT’S STATEMENTS

On 8 December 1992 at about 1630, appellant’s first

sergeant, MSgt Auld, contacted appellant at home and told

him to report with his daughter to the base hospital. At the

hospital, Dr. Hickey conducted a medical examination. The

local Child Protective Services (CPS) caseworker told

appellant that CC could not go home with him and appellant

made arrangements for CC’s care.

intelli ican cai

14a

Following a stop for supper, appellant arrived at the

AFOSI office about 1910. Appellant waived his Article 31

rights and the AFOSI agents then questioned appellant for

several hours. Appellant discussed how he bathed and

powdered his daughter but denied putting his finger in her.

About 2300 hours, appellant agreed to make a written

statement. Following completion of the statement shortly

after midnight, appellant consented to a search of his house.

The search was completed about 0200 on December 9th and

appeliant unsuccessfully tried to sleep. Appellant went to

work that day at 0630.

Around 1100, the AFOSI again called him in for

additional questioning. A civilian officer assisted in this

interview. Appellant again waived his rights. The civilian

officer sat directly facing appellant. Occasionally, their

knees touched or the civilian officer placed his hand on

appellant’s arm or shoulder in what he later described as a

comforting gesture. Several hours later, appellant admitted

to digitally penetrating CC’s vagina and provided a written

statement.

Appellant urges that his statements were involuntary

based on a combination of factors. He cites his lack of sleep

and acute tiredness, his anxiety over his daughter being

removed from his home, the threats of the civilian officer to

take him to jail if he didn’t cooperate, and the proximity of

the civilian officer when questioning him.

We review the voluntariness of an appellant’s statements

under a de novo standard of review. United States v. Collier,

36 M.J. 501, 504 (A.F.C.M.R. 1992), pet. denied 38 M.J. 461

(C.M.A. 1993). The totality of the circumstances determines

the voluntariness of appellant’s statements. Mil.R.Evid.

304(a), United States v. Byers, 26 M.J. 132 (C.M.A. 1988).

The burden is on the government to establish that the

statements were voluntary. Mil.R.Evid. 304(f).

15a

The investigatory agents testified that they never

threatened appellant, offered him frequent breaks, and did not

observe any acute tiredness. Appellant testified that he

understood his rights although he never stopped the

interviews when he was tired because he thought he had to be

there. The AFOSI agents further indicated that he actively

participated in drafting the statements. Although appellant

claims he did not read the statements, the second document

shows cross-outs and substitutions made by appellant.

The military judge made extensive findings of fact which

we adopt as our own. The length of the interviews,

particularly during normal resting hours, and appellant’s

apparent tiredness are but two of the factors we consider in

determining the voluntariness of the statements. We also

considered that appellant had about 12 years on active duty at

the time of the interviews, was oriented as to what was

happening, recalled the circumstances of the interviews, and

participated in the revisions on the statements. We find that

there was no evidence of coercion, unlawful influence or

inducement and that the statements were voluntary. Article

66(c), UCMJ.

STATE OF MIND EVIDENCE

Trial defense counsel proffered the testimony of Carrie

Carpenter, a CPS caseworker, to discuss appellant’s state of

mind on December 10th when he told her he did not

remember what he had told the AFOSI. The military judge

admitted the evidence over trial counsel’s relevancy objection.

During cross-examination, trial counsel sought to introduce

evidence of the witness’ previous contact with appellant

during an earlier inquiry. Defense counsel objected arguing

the evidence was outside the scope of direct. However, the

military judge allowed the questioning because it helped

explain appellant’s state of mind on December 10th. The

l6a

military judge excluded some evidence but allowed the

witness to testify as to appellant’s reluctance to talk with her

and his denial of abuse.

Appellant now alleges that admission of this evidence

was error. He argues that the implications that there was a

separate incident of misconduct and that appellant was

reluctant to talk with the caseworker are unfairly prejudicial.

We review the military judge’s decision to admit

evidence under an abuse of discretion standard. United States

v. Spata, 34 M.J. 284 (C.M.A. 1992). We believe that portions

of the testimony concerning appellant’s contact with Ms.

Carpenter were admissible as relevant to his later state of

mind. We do not believe the members were misled into

thinking there was another uncharged offense. While the

testimony concerning appellant’s reluctance to talk to the CPS

caseworker is not as clearly relevant and could be interpreted

as reflecting a consciousness of guilt, the military judge did

not abuse his discretion in admitting this testimony. Here, the

military judge balanced the prejudicial impact of the

testimony and limited the overall questioning. Furthermore,

the testimony concerning appellant’s prior contacts with Ms.

Carpenter was not unfairly prejudicial under the facts of this

case where appellant’s written AFOSI statement admitted that

he became sexually aroused when he digitally penetrated his

daughter’s vagina. Article 59a, UCMJ. See United States v.

Walker, 42 M.J. 67 (C.A.A.F. 1995).

TRIAL COUNSEL’S STATEMENTS DURING ARGUMENTS

Trial counsel made extremely aggressive arguments

during findings and sentencing and, at one point, theatrically

tore up copies of defense evidence. There were no objections

to his comments. Appellant now asserts the military judge

committed plain error in failing to stop trial counsel’s highly

inflammatory and often misleading argument.

17a

Absent plain error, objections based upon improper

argument are waived unless made at trial. United States v.

White, 36 M.J. 306 (C.M.A. 1993). Plain error must be both

obvious and so substantial as to have had an unfair

prejudicial impact on the appellant. United States v. Fisher, 21

M.J. 327: (C.M.A. 1986). Defense counsel’s failure to object

is some evidence that he considered the statements to be of

little consequence. United States v. Grandy, 11 M.J. 270, 275

(C.M.A. 1981).

Trial counsel’s findings and rebuttal arguments were

designed to appeal to the emotions, mischaracterized the

evidence by stating that the accused was masturbating while

he was touching his daughter, and occasionally exceeded the

limits of reasonable comment on the evidence by stating that

he “screwed with” his daughter. An argument with emotional

overtones or one that appeals to the member’s sense of

outrage is not automatically improper. United States v.

Williams, 23 M.J. 776, 778 (A.C.M.R. 1987), pet. denied, 25

M.J. 209 (C.M.A. 1987). However, in this case, counsel

exceeded the proper limits more than one time. Additionally,

statements such as “And if you buy this story about I couldn’t

see because | didn’t have my glasses, I’ve got some land for

you down on Long Island Sound” are clearly inappropriate.

Rules of Professional Responsibility and USAF Standards for

the Administration of Criminal Justice, The Prosecution

Function, Standard 3—5.8(b) (TJAG Policy Number 26, 1

July 1994). However, rather than focusing solely on counsel’s

alleged inflammatory statements, we must consider the entire

argument. We have also considered the fact that this was a

hard fought trial in which both defense counsel and the

military judge played active roles, yet neither objected to trial

counsel’s statements.

While concerned about the overly aggressive nature of

counsel’s comments, nonetheless, taken as a whole, counsel’s

El

i el

18a

argument was not so clearly inappropriate as to require the

military judge to intervene. Furthermore, members convicted

appellant only of the offense of indecent acts with his

daughter which he had described in his written statement to

the AFOSI and acquitted him of the offense involving the

other child. Therefore, even if we were to determine that

counsel’s argument was inappropriate and required

intervention, we find no prejudice or plain error during the

findings portion of trial. Article 59a, UCMJ.

Trial counsel’s sentencing argument also exhibited the

same pattern of misstatements and overstepping the bounds

of appropriate comment on the evidence. However, trial

defense counsel capably refocused the member’s attention on

the appellant and not the victim. Additionally, on several

different occasions, the military judge intervened correcting

misstatements of the law and the evidence (indicating that

there was no evidence to show appellant was masturbating

while he was touching his daughter). The military judge did

not commit plain error in failing to further limit trial

counsel’s sentencing argument. We also find that the

combination of the two arguments did not unfairly prejudice

the appellant. Article 59a, UCMJ.

REMAINING ASSIGNMENTS OF ERROR

The evidence is factually and legally sufficient to support

the finding of guilty. United States v. Turner, 25 M.J. 324,

324-5 (C.M.A. 1987). However, in light of appellant’s general

good character, as well as the limited scope and duration of

the abuse, we find the approved sentence is inappropriately

severe. Therefore, we approve only so much of the sentence

as provides for a bad conduct discharge, confinement for four

years, and reduction to E-1. United States v. Healy, 26 M.J.

394, 395-6 (C.M.A. 1988); United States v. Snelling, 14 M.J.

267, 268 (C.M.A. 1982).

19a

We conclude the findings and sentence, as modified, are

correct in law and fact, the modified sentence is appropriate,

and no error prejudicial to appellant’s substantial rights

occurred. Accordingly, the findings of guilty and the modified

sentence are AFFIRMED.

Chief Judge DIXON and Judge STARR concur.

OFFICIAL

ALVIN J. STRIBLING Technical Sergeant, USAF Chief

Court Administrator