Donald W. Swensen Master Sergeant U.S. Air Force Convicted Sex Offender Sexual Contact With A Child Under 12

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Name: Donald W. Swensen

U.S. V. Swensen

Date Of Conviction: September 1, 2009

Plea: Guilty

Charges: Sodomy and indecent acts with a child

Military Branch: U.S. Navy

Listed In National Sex Offenders Registry? YES California

Sentence adjudged 01 September 2009 by GCM convened at Kadena Air Base, Japan. Military Judge: Grant L. Kratz (sitting alone).

Approved sentence: Dishonorable discharge, confinement for 7 years, forfeiture of all pay and allowances, and reduction to E-1.

Pursuant to his pleas, the appellant was convicted at a general court-martial by military judge alone of one specification of engaging in sexual contact with a child under the age of 12, two specifications of indecent acts with a child under the age of 16, and one specification of wrongfully endeavoring to influence the actions of a witness, in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934. The adjudged sentence consists of a dishonorable discharge, 11 years of confinement, forfeiture of all pay and allowances and reduction to E-1. The convening authority approved the findings, 7 years of confinement, suspended the adjudged forfeitures and waived the mandatory forfeitures for six months, and approved the remainder of the sentence as adjudged.

At trial, the appellant admitted to engaging in divers incidents of indecent acts with his stepdaughter, BW. The first occurred three years prior when BW was approximately 14 or 15 years old. While she and the appellant were at a swimming pool, her bathing suit top came off. The appellant intentionally grabbed her breast while in the pool and did not immediately let go. The remaining indecent acts took place at the appellant‟s home during “tickle sessions” with the appellant, BW, and ES, the appellant‟s biological daughter. During these episodes, the appellant put his hand on BW‟s breast, allowing his hand to linger in order to arouse his sexual desires. The appellant further admitted to enticing ES into his bed and touching her genitalia when ES was 5 or 6 years of age.

During sentencing, the government called BW to testify about not only the events the appellant admitted to, but also four other sexual incidents that occurred prior to the charged offenses. Over defense objection, the military judge permitted BW to describe what had taken place. BW testified that when she was 7 or 8 years of age (approximately

9 or 10 years previously), the appellant coaxed her into the bathroom and she touched the appellant‟s penis after he urged her to do so. On another occasion a few months later, while BW and the appellant were taking a bath, the appellant pulled his bathing suit down and had BW sit on his erect penis. The third incident took place four to five years prior when BW was approximately 13 years old. The appellant took her into his room and told her, “men have urges and this is why I am molesting you.” The fourth event took place when BW was 15. She testified that when she and the appellant were riding a jet ski, the appellant, who was in back, put his hand under her bathing suit and penetrated her vagina. BW further expounded on the tickling incidents, saying the appellant would sometimes put his hand down her pants without her consent.

Defense counsel objected to BW‟s testimony on the basis of uncharged misconduct and improper aggravation evidence. The military judge overruled the objection, finding the testimony reflected a pattern and a continuous course of conduct and was relevant in sentencing regarding the impact of the charged offenses on members of the appellant‟s family and the depth of the appellant‟s sexual problems. The military judge applied a balancing test under Mil. R. Evid. 403 and found the probative value of the evidence substantially outweighed the danger of unfair prejudice. He concluded his ruling by stating he would not sentence the accused for the uncharged offenses.

The appellant argues that his sentence is too severe, emphasizing his 24 years of military service, his “many positive qualities and personal achievements, his rehabilitation potential, and his overall outstanding contributions to the United States military.” We disagree. Intentional sexual molestation of minors merits a strong punishment. We hold that the approved sentence is not inappropriately severe, having given individualized consideration to this particular appellant, the nature of the offense, the appellant‟s record of service, and all matters in the record of trial.

Conclusion

The approved findings and sentence are correct in law and fact and no error prejudicial to the substantial rights of the appellant occurred.