Rogelio Pablo Staff Sergeant U.S. Army Convicted Sex Offender Sodomy Of A Child Under 12

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Name:Rogelio Pablo

Case: United States v. Rogelio Pablo No. 99-0681

Date Of Appeal: February 4, 2000

Plea: Not Guilty

Charges: Sodomy Of A Child Under 12

Military Branch: U.S. Navy

Listed In National Sex Offenders Registry? NO

Judge GIERKE delivered the opinion of the Court.

Appellant was charged with sodomy with a child under 12, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925. A general court-martial composed of officer and enlisted members convicted him, contrary to his pleas, of the lesser-included offense of committing an indecent act with a child, in violation of Article 134, UCMJ, 10 USC § 934.

The adjudged and approved sentence provides for a bad-conduct discharge and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 50 MJ 658 (1999).

Appellant’s wife was baby-sitting the victim, EB, a 7-year-old girl, and her 6-year-old brother, RL, during the Christmas break from school. Appellant’s wife left their apartment to run an errand, leaving the children in appellant’s care. EB testified that she, RL, appellant, and appellant’s daughter, KL, were playing hide-and-seek in the apartment.

When EB was "it," appellant took her into the bedroom and blindfolded her. She testified that in the hide-and-seek game, "one person has to count and then all the others go hide," but that she did not count because appellant told her not to. She testified that appellant put chocolate in her mouth, and then pulled down his pants and "put his pee-pee in [her] mouth." She testified that she knew it was his "pee-pee" because she peeked under the blindfold and saw appellant’s pants "down on the floor." She testified that she took off the blindfold, walked out of the room, and told KL what had happened.

She testified that she also told appellant’s wife when she returned to the house, but that appellant’s wife said she did not believe her. Appellant’s wife told another baby-sitter that EB had told her something that upset appellant. EB testified that she did not tell her mother, because she was afraid that she "might get in trouble," but that she told her student counselor, Ms. Myra Earls.

Before the trial on the merits had begun, the military judge had conditionally granted a defense motion in limine to preclude the testimony of EB’s student counselor, Ms. Earls. The testimony was offered by the prosecution as residual hearsay under Mil. R. Evid. 803(24), Manual for Courts-Martial, United States (1995 ed.).* The military judge preliminarily ruled that Ms. Earls’ testimony was not admissible, because it was not more probative than EB’s own testimony; but he conditioned his ruling on hearing and evaluating EB’s testimony.

After EB’s testimony on direct and cross-examination, the prosecution asked the military judge to reconsider. The military judge reversed his earlier ruling, finding that EB’s testimony was "vague and foggy" concerning the events surrounding the alleged sodomy.

Ms. Earls testified that she has 5 years of experience as a counselor. She met EB in a counseling group for children of divorced parents. The mother of a student told Ms. Earls that EB had accused a friend's husband of putting his penis in her mouth. The woman also said that EB had hugged her inappropriately, and that EB’s mother had "boyfriends in and out." Concerned that EB might have been abused, Ms. Earls went to EB’s classroom and brought EB to her office for questioning. Ms. Earls began with small talk and then asked EB a number of questions about her mother’s boyfriends and her life at home. She asked EB if any of her mother’s boyfriends had "bothered" her. EB responded, "No. I never see them." EB then said, "You know what?" and volunteered that appellant had "put his wiener in her mouth." When Ms. Earls asked if anyone else was present, EB told her that appellant’s daughters, JW and KL, were present.

After interviewing KL, Ms. Earls again questioned EB. She "basically repeated the story," but added "a little more detail." The following day, Ms. Earls interviewed EB a third time. She knew that EB was making a serious charge, and she "wanted to be sure." EB again "repeated the same story." Ms. Earls then notified the police. Ms. Earls testified that EB was comfortable during the questioning, but she covered her mouth, turned red, and seemed embarrassed when she said that appellant’s pants were down.

Sergeant (SGT) Arnold Carter testified that he works for appellant. He testified that appellant told him EB had accused him of sticking his finger in her mouth. SGT Carter asked appellant if EB was telling the truth, and appellant responded, "What do you think. Trust me."