15 M.J. 518 | U.S. Army Court of Military Review | 1983
OPINION OF THE COURT
Contrary to his pleas, Johnson was convicted of committing indecent, lewd and lascivious acts upon his four year old son and upon his two year old daughter. Prior to the testimony of the son, the prosecutor requested that the son’s aunt, a Mrs. Skipper, be allowed to sit beside the child during his testimony. The following colloquy then took place:
MJ: What is the defense position with regard to the Aunt accompanying the child?
DC: Your Honor, as far as the preliminary questioning, we have no objection if she wants to come in and get the child oriented to the proceedings. However, because of her involvement for the past few days in this thing, we would object to her holding thé child during the merits, as we are afraid that she may affect the child’s testimony in some way.
MJ: The Aunt will be permitted to occupy a chair next to the child. If I detect any indication that the child, in any manner, is turning to her for guidance or response in any of his responses, then she’ll have to be excluded from that. But until that happens, I will permit that.
There is no indication in the record that the son in any way sought or received guidance from his aunt during his subsequent testimony.
This fact situation is quite similar to the one present in Evers v. State, 84 Neb. 708, 121 N.W. 1005 (1909), a sexual assault case in which the complaining witness was an eight year old girl. Over defense objection, the trial court allowed a Mrs. Wheeler to sit on the witness stand in close proximity to the girl while she testified. Subsequently, the defense claimed that Mrs. Wheeler was
We are likewise convinced that there was no error in this case, and we commend the trial judge for utilizing sound judicial procedure in dealing with the situation.
The acts which formed the basis of the charges in this case were alleged in both specifications to have occurred “on divers occasions from on or about 20 February 1982 to on or about 24 April 1982.” Although the evidence adduced at trial established that the acts occurred on only one occasion with each child, Johnson was convicted as charged. As a result, Johnson asserts that the evidence is insufficient to support his convictions. We would agree that the findings should be modified had not the convening authority mooted the error by approving only so much of each specification as found that Johnson committed acts upon each victim on but a single occasion and by reassessing the sentence accordingly.
The findings and the sentence are affirmed.
