United States v. Specialist RONALD E. COOK

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before SCHENCK, WALBURN, and MAGGS Appellate Military Judges UNITED STATES, Appellee v. Specialist RONALD E. COOK United States Army, Appellant ARMY 20060261 Headquarters, III Corps and Fort Hood Gregory A. Gross, Military Judge (arraignment) Alan L. Cook, Military Judge (trial) Colonel Mark Cremin, Staff Judge Advocate For Appellant: Lieutenant Colonel Steven Henricks, JA; Major Fansu Ku, JA; Captain Richard P. Pizur, JA (on brief). For Appellee: Colonel John W. Miller, JA; Major Elizabeth G. Marotta, JA; Captain Larry W. Downend, JA; Captain Lynn I. Williams, JA (on brief). 26 February 2008 ----------------------------------------- SUMMARY DISPOSITION ----------------------------------------- Per Curiam: Appellant was convicted by an officer and enlisted panel, contrary to his pleas, of forcibly sodomizing his seven-year-old stepdaughter. Appellant asserts the evidence is factually insufficient to support his conviction. We disagree. The victim, VW, testified that while her mother was at work, appellant came to her room, required her to lay across her bed, and proceeded to pull down her pants and anally sodomize her. VW further testified that appellant told her not to tell or he would hurt her. Despite this warning, VW told her mother the next morning about the attack as they were walking to the hospital for a previously scheduled medical appointment. Later that day, Ms. Deborah Kleypas, an experienced Sexual Assault Nurse Examiner (S.A.N.E.), examined VW. Ms. Kleypas, who was recognized by the military judge as a S.A.N.E. expert, had conducted over 300 sexual assault examinations and testified in court on 10 previous occasions (both civilian and military). VW told Ms. Kleypas that [appellant] “made me lay down on the bed . . . He put his middle part (VW pointed to a penis on an anatomical diagram) in my behind (VW pointed to an anus on the anatomical diagram) . . . Right in here where I do number two from. I cried because it hurt.” Ms. Kleypas testified that her physical exam of VW revealed recent injuries in VW’s anal area consistent with sexual abuse. Ms. Kleypas found a one centimeter laceration at eleven o’clock, a .5 centimeter abrasion at five o’clock, and a one and one-quarter centimeter abrasion at six-thirty o’clock. Photos of these injuries were admitted. Ms. Kleypas opined VW’s injuries indicated acute injury that had occurred within a week of her examination of VW. To counter the government’s case, the defense argued that both VW and appellant’s wife had tested positive for Chlaymydia, a sexually transmitted disease. There was no direct evidence that appellant was infected. A social worker later interviewed VW. When questioned about inconsistencies during this interview, and despite being shown a tape of this interview, VW denied making some of the statements shown on the video. The defense called Mr. Lawrence Presley whom the military judge recognized as a forensic examination expert. Mr. Presley’s testimony focused on the one piece of physical evidence connected with this case, a single hair sample found in the panties apparently worn by VW the day of her assault. Appellant argues his innocence is buttressed by Mr. Presley’s conclusion the hair found in VW’s panties was “dissimilar” to hair samples provided by appellant. While Mr. Presley did make this conclusion, his testimony does not particularly weaken the government’s case. The government did not rely on the hair to prove appellant’s guilt and Mr. Presley did not conclude that the hair came from another perpetrator. Rather, Mr. Presley merely testified that based on the size of the hair he would not have recommended DNA testing (and none was attempted). Additionally, he was unable to conclude it was a pubic hair. In fact, Mr. Presley opined the sample was more indicative of a head hair from a partly Negroid, partly Caucasian, person. It is entirely possible the hair was from VW’s own head. Based on the record as a whole we conclude that the evidence presented by the government was factually sufficient to support the panel’s verdict and we are convinced of appellant’s guilt beyond a reasonable doubt. See United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987); United States v. Bright, 60 M.J. 936, 938 (Army Ct. Crim. App. 2005) (citing United States v. Adams, 59 M.J. 367, 373 (C.A.A.F. 2004)). We have considered the remaining assignments of error, and those matters personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Accordingly, the finding of guilty and sentence are affirmed.* FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court * Although the convening authority’s action only provided 118 days confinement credit, appellant should receive the 123 days confinement credit the military judge awarded him. See Rule for Courts-Martial 1107(f)(4)(F); Army Reg. 27-10, Legal Services: Military Justice, para. 528a (16 Nov. 2005) (requiring a convening authority to “show in [the] initial action all credits against a sentence to confinement . . . regardless of the source of the credit . . . or for any . . . reason specified by the judge”); United States v. Delvalle, 55 M.J. 648 , 649 n.1, 656 (Army Ct. Crim. App. 2001); United States v. Arab, 55 M.J. 508 , 510 n.2, 520 (Army Ct. Crim. App. 2001). Although appellant defense counsel indicated appellant received 123 days confinement credit, to the extent appellant has not already received this credit, appellant will be credited with a total of 123 days of confinement credit.