HomeMy WebLinkAboutCP-21-CR-0000782-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) RAPE OF A CHILD
: (2) IDSI (VICTIM UNDER 16)
: (3) IDSI WITH A CHILD
: (4) STATUTORY SEXUAL ASSAULT
v. : (5) AGGRAVATED INDECENT
: ASSAULT ON A CHILD
: (6) AGGRAVATED INDECENT
: ASSAULT
: (7) INDECENT ASSAULT ON A
: CHILD
: (8) CORRUPTION OF MINORS
: (9) INDECENT ASSAULT
NICHOLE MARIE :
ROWE [CLARK] :
OTN: K386404-4 : CP-21-CR-0782-2008
IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., January , 2010.
In this Megan’s Law case, Defendant was found guilty by a jury on January
27, 2009, of rape of a child, involuntary deviate sexual intercourse, involuntary
deviate sexual intercourse with a child, statutory sexual assault, aggravated
indecent assault on a child, aggravated indecent assault, indecent assault on a
1
child, corruption of minors, and indecent assault. Several of the offenses carry
mandatory minimum sentences of not less than 10 nor more than 20 years in a
2
state correctional institution.
The evidence in support of the prosecution was well-summarized in a
report filed by a member of the Pennsylvania Sexual Offenders Assessment Board,
as follows:
1
Order of Court, January 27, 2009.
2
See Commonwealth’s Notices of Mandatory Sentence, filed May 22, 2009.
The victim of the instant offense was an 11 to 13-year-old female (DOB
09/28/1993) who was acquainted with Ms. Rowe-Clark through living in
the same neighborhood. Records revealed that Ms. Rowe-Clark stated that
she had watched the victim grow up. Ms. Rowe-Clark was the paramour of
Kenneth Clark, the co-defendant in the instant offense, at the time of the
instant offense. She subsequently married him in November 2007.
The instant offense was revealed on 09/03/2007 when the victim’s mother
found a cell phone that did not belong in her home. She asked the victim
whose phone it was and the victim told her that it belonged to her mother’s
former boyfriend. The victim’s mother knew it did not belong to him and
became suspicious and took the phone to a friend’s house. When the friend
looked at the phone, she found three pictures of the victim engaging in
sexual acts. Two of the pictures were of the victim topless giving oral sex
to a man. The pictures were labeled “AB.J. from B.J.” [the victim’s initials
were B.J.S.] and “MMMMMM”. The third picture was of the victim
giving oral sex to a female. When the victim’s mother and her friend
confronted Ms. Rowe-Clark (then Ms. Rowe) about the pictures and asked
if it was her in the third photo with the victim, she reportedly hesitated,
stuttered then said, yes. Mr. Clark then appeared and grabbed the phone
from the friend’s hand and went back in the bedroom and deleted the
pictures from the phone. Mr. Clark stated that he deleted the pictures
because they were of him and Ms. Rowe-Clark and he was embarrassed.
The victim’s mother returned home and confronted the victim, who
admitted that she had been having sex with Mr. Clark and Ms. Rowe-Clark
for approximately two years. The victim reported that the sex included
intercourse with Mr. Clark and oral sex with both Mr. Clark and Ms.
Rowe-Clark. The victim stated that Mr. Clark and Ms. Rowe used sex toys
on her during the sexual acts. She reported that both Mr. Clark and Ms.
Rowe took pictures of her engaging in sex acts with them. She stated that
the pictures that were found were of her giving Mr. Clark fellatio and of
Ms. Rowe-Clark licking the victim’s vagina. The victim reported that Mr.
Clark also took pictures of her topless with an eye-shaped camera attached
to his computer and showed her a video of her on his computer.
The victim reported that the sexual acts occurred in the defendants’ bed
and in her bed when her mother was not home. She stated both Mr. Clark
and Ms. Rowe-Clark would watch her mother leave the house and then
call the victim to ask where her mother had gone. The victim revealed that
Ms. Rowe-Clark gave her a cell phone so that she could talk to her and Mr.
Clark. They would then go the victim’s house and have sex with her. The
victim reported that sometimes Mr. Clark would come alone to have sex
with her; sometimes Ms. Rowe-Clark would come alone to have sex with
her; and sometimes they would come together. The victim reported that the
sexual acts also occurred in Mr. Clark’s truck. The victim stated that both
Mr. Clark and Ms. Rowe-Clark licked her vagina and she had to lick Ms.
Rowe’s vagina. The victim described “white stuff” coming out of her
vagina and Ms. Rowe-Clark after they engaged in intercourse with Mr.
Clark. She stated that Mr. Clark commented that he did not want to get the
victim pregnant “yet”. The victim reported that Mr. Clark told her that he
2
was going to die and wanted to eventually get either Ms. Rowe-Clark or
the victim pregnant so that they could give him a son.
The victim revealed during her interview at the Children’s Resource
Center that she participated in sexual acts with Mr. Clark and Ms. Row-
Clark from the age of 11 to age 13. She stated that Ms. Rowe-Clark was
often present and participated when Mr. Clark had sex with her. The
victim reported that the last time Mr. Clark and Ms. Rowe-Clark had sex
with her was at a motel at a truck stop on 08/25/2007. She recalled that she
was supposed to go camping with Mr. Clark and Ms. Rowe-Clark but
beforehand they stopped at a motel. The victim stated that when Ms.
Rowe-Clark went into the office to pay, the victim was made to hide on
the floor of the truck. She reported that while at the motel, she performed
fellatio on Mr. Clark; fingered Ms. Rowe-Clark’s vagina while Ms. Rowe-
Clark fingered her vagina; and Mr. Clark had sexual intercourse with both
3
her and Ms. Rowe-Clark.
4
Defendant was herself a teenager when the offenses began, and has since
given birth to a child fathered by her much older co-defendant, Kenneth James
5
Clark, who is 39 years old. The child is being raised by a member of Defendant’s
6
family. Mr. Clark was found by the undersigned judge to be a sexually violent
7
predator on October 8, 2009. It appears that Defendant was herself sexually
8
abused by Mr. Clark, commencing when she was about 13.
This case was referred to the Pennsylvania Sexual Offenders Assessment
Board for purposes of an assessment as to whether Defendant should be classified
9
as a sexually violent predator.
3
Commonwealth’s Ex. 1, at 1-2, Hearing, November 25, 2009 (hereinafter Commonwealth’s Ex.
1). As of the writing of this opinion, a final transcript of the notes of testimony from the hearing
on November 25, 2009, had not been prepared or filed. Accordingly, the citations to the transcript
are approximate.
4
N.T. 20, Hearing, November 25, 2009 (hereinafter N.T. ___).
5
Commonwealth’s Ex. 1; N.T. 10-11; Complaint, filed March 3, 2008, CP-21-CR-0781-2008
(Cumberland County).
6
N.T. 78.
7
Order of Court, October 8, 2009, CP-21-CR-0781-2008 (Cumberland Co.).
8
Defendant’s Exhibit 1, at 3, Hearing, November 25, 2009 (hereinafter Defendant’s Ex. 1).
9
Order of Court, January 27, 2009.
3
10
Based upon an affirmative response from the Board, the Commonwealth
11
filed a praecipe for a hearing on the issue, which was held on November 25,
2009. At the hearing, the Commonwealth presented the testimony and report of
Nancy W. Einsel, M.S., CCMHC, LPC, a member of the Pennsylvania Sexual
12
Offenders Assessment Board. Defendant presented the testimony and report of
13
Dr. Stanley E. Schneider, a practicing psychologist. The two experts reached
different conclusions as to whether Defendant should be classified as a sexually
14
violent predator.
For the reasons stated in this opinion, Defendant will not be determined to
be a sexually violent predator.
STATEMENT OF LAW and FINDINGS OF FACT
Statement of law
A predatory act is defined in Section 9792 of the Judicial Code as “[a]n act
directed at a stranger or at a person with whom a relationship has been initiated,
established, maintained or promoted, in whole or in part, in order to facilitate or
support victimization.” Section 9792 defines “sexually violent predator” as:
A person who has been convicted of a sexually violent offense as set forth
in section 9795.1 (relating to registration) and who is determined to be a
sexually violent predator under section 9795.4 (relating to assessments)
due to a mental abnormality or personality disorder that makes the person
likely to engage in predatory sexually violent offenses. . . .
Act of October 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §9792 (“sexually
violent predator”).
Several of the crimes of which Defendant was found guilty make her
subject to lifetime registration under Megan’s Law, as well as lifetime publication
10
Commonwealth’s Ex. 1, Hearing, November 25, 2009.
11
Commonwealth’s Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), filed May 21, 2009.
12
N.T. 2-57; Commonwealth’s Ex. 1.
13
N.T. 57-82; Defendant’s Ex. 1.
14
Commonwealth’s Ex. 1.
4
15
on the Megan’s Law website. Classification as a sexually violent predator would
make Defendant subject to several more specific public notification
1617
requirements, as well as quarterly residence verification and monthly
18
counseling.
A “mental abnormality” is defined in Section 9792 as “[a] congenital or
acquired condition of a person that affects the emotional or volitional capacity of
the person in a manner that predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace to the health and safety of
other persons.” Id. (“mental abnormality”).
The burden of establishing that a defendant is a sexually violent predator is
on the Commonwealth. Id., §9795.4(e)(3). Sexually violent predator status must
be established by clear and convincing evidence. Id. Clear and convincing
evidence is evidence that is “so clear, direct, weighty, and convincing as to enable
[the fact finder] to come to a clear conviction, without hesitancy, of the truth of the
precise facts in issue.” Lessner v. Rubihson, 527 Pa. 393, 400, 592 A.2d 678, 681
(1991) (citations omitted). In Commonwealth v. Krouse, the Superior Court of
Pennsylvania stated:
[W]e strongly recommend that trial courts present specific findings of fact
regarding the findings necessary for a SVP determination as defined in
Section 9792 and the factors specified in Section 9795.4(b) which the
legislature has deemed relevant.
Commonwealth v. Krouse, 799 A.2d 835, 842 (Pa. Super. Ct. 2002).
15
Act of May 10, 2000, P.L. 74, §3, as amended, 42 Pa. C.S.A. §9795.1(b); Act of November 24,
2004, P.L. 1243, §13, as amended, 42 Pa. C.S.A. §9798.1.
16
Act of October 24, 2005, P.L. 1079, §1, as amended, 42 Pa. C.S. §9797 (written notification to
the victim of the sexually violent predator’s residence by the local police department); Act of
October 24, 2005, P.L. 1079, §1, as amended, 42 Pa. C.S. §9798 (written notification of the
sexually violent predator’s residence by the local police department to (1) the sexually violent
predator’s neighbors, (2) the county children and youth services, (3) the superintendent of the
county school district as well as parochial and private schools, (4) certified day-care centers in the
municipality, and (5) colleges within 1,000 feet of the sexually violent predator’s residence).
17
Act of October 24, 2005, P.L. 1079, §1, as amended, 42 Pa. C.S. §9796.
18
Act of October 24, 2005, P.L. 1079, §1, as amended, 42 Pa. C.S. §9799.4.
5
Section 9795.4(b) of Megan’s Law II specifies that an assessment shall
include, but not be limited to, the following:
(1) Facts of the current offense, including:
i. Whether the offense involved multiple victims.
ii. Whether the individual exceeded the means
necessary to achieve the offense.
iii. The nature of the sexual contact with the victim.
iv. Relationship of the individual to the victim.
v. Age of the victim.
vi. Whether the offense included a display of unusual
cruelty by the individual during the commission of
the crime.
vii. The mental capacity of the victim.
(2) Prior offense history, including:
i. The individual’s prior criminal record.
ii. Whether the individual completed any prior
sentences.
iii. Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
i. Age of the individual.
ii. Use of illegal drugs by the individual.
iii. Any mental illness, mental disability or mental
abnormality.
iv. Behavioral characteristics that contribute to the
individual’s conduct.
(4) Factors that are supported in a sexual offender assessment field as
criteria reasonably related to the risk of reoffense.
Act of May 10, 2000, P.L. 74, §3, as amended, 42 Pa. C.S. §9795.4(b) (2009
Supp.).
Findings of Fact
The factual background of this case has been stated heretofore. With
respect to the specific statutory factors enumerated in the Judicial Code as being of
particular relevance to a determination of whether a person is a sexually violent
predator, the following additional findings are made:
6
Victim characteristics. The only victim was an 11 to 13-year-old
female who was prepubescent at the time of the commencement of the
19
instant offenses.
Means necessary to commit offense. The actions of Defendant in the
commission of the instant offenses did not exceed the means necessary to
20
achieve them.
Nature of sexual contact. Defendant performed cunnilingus on the
victim; had the victim perform cunnilingus on her; digitally penetrated the
victim’s vagina and had the victim digitally fondle her vagina; and was
present and often participating when Mr. Clark performed sex acts on and
with the victim. The sexual acts occurred in Mr. Clark and Ms. Rowe-
Clark’s residence; in the victim’s residence; in Mr. Clark’s truck and in a
motel room. The victim also watched Defendant have intercourse with Mr.
Clark. The victim reported that “white stuff” came out of her and out of
21
Defendant after intercourse with Mr. Clark.
Relationship to the victim. The victim was acquainted with Defendant
22
as a neighbor of her and Mr. Clark.
23
Age of the victim. The victim was an 11- to 13-year-old female.
Display of unusual cruelty. Defendant did not display unusual cruelty
in the commission of the offenses, and no sadistic characteristics are
24
evident in her personality.
Mental capacity of the victim. The victim had the mental capacity of
an 11- to 13-year-old.
Prior offense history. Defendant has no prior criminal history, as an
25
adult or juvenile.
Age of the individual. Defendant was 18 years old when the criminal
26
activity commenced and had just turned twenty when it ended.
Mental illness, mental disability or mental abnormality. Defendant
27
has a personality disorder in the form of pedophilia.
19
Commonwealth’s Ex. 1, at 3; N.T. 15.
20
Commonwealth’s Ex. 1, at 3; N.T. 20, 47-48.
21
Commonwealth’s Ex. 1, at 3; N.T. 16-17, 47.
22
Commonwealth’s Ex. 1, at 3; N.T. 15.
23
Commonwealth’s Ex. 1, at 3; N.T. 15.
24
Commonwealth’s Ex. 1, at 3; N.T. 20, 48.
25
Commonwealth’s Ex. 1, at 4, N.T. 48.
26
Defendant was born on June 4, 1987. Criminal Complaint, at 1. The criminal conduct in this
case began around September 3, 3005, and ended on August 25, 2007. Information, filed May 22,
2008; N.T.20.
27
Commonwealth’s Ex. 1, at 4; Defendant’s Ex. 1, at 5; N.T.21, 26, 61.
7
Behaviorial characteristics contributing to the conduct. Defendant is
socially shy, submissive, insecure, vulnerable, and subject to
28
exploitation. She developed an emotional dependence upon her older,
29
male co-defendant.
Both experts in this case were in agreement that Defendant should be
30
diagnosed as having a personality disorder in the form of pedophilia. In addition,
certain of her offenses were of a type that permit a court to consider her for
31
sexually violent predator status. The experts disagreed, however, on whether she
32
was a person likely to engage in predatory sexually violent offenses in the future.
The Commonwealth’s witness was of the view that Defendant’s “behavior
related to her diagnosis of Pedophilia makes her likely to engage in predatory
sexually violent offenses for the following reasons:
● Paraphilic interests are related to [Defendant’s] sexual offending, and
given that people with this condition show a tendency toward having
sexual contact with minor children, it is this board member’s opinion that
these disorders predispose [Defendant] toward committing sexually violent
offenses.
● Literature indicates that the strongest predictors of sexual offense
recidivism are variables related to sexual deviancy, such as deviant sexual
preferences.
● [Defendant’s] victim was not related to her. “Having victims outside the
immediate family is empirically related to a corresponding increase in
33
risk.” (Harris, Hanson)
The witness opined that, notwithstanding an apparent emotional
dependence of Defendant upon her co-defendant, “details of the instant offense do
not bear out that [Defendant’s] behavior meets the profile of a female who
clinically is primarily motivated to offend by both a fear of her male co-offender
and an emotional dependence on him. Her actions appear to be driven by deviant
28
Defendant’s Ex, 1, at 4; N.T. 62-63.
29
Commonwealth’s Ex. 1, at 4; N.T. 62-63.
30
Commonwealth’s Ex. 1, at 4; Defendant’s Ex. 1, at 5; N.T.21, 26, 61..
31
See Act of October 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §§9792, 9795.1.
32
Commonwealth’s Ex. 1, at 5; Defendant’s Ex. 1, at 5; N.T. 31-32, 81-82.
33
Commonwealth’s Ex. 1, at 4-5.
8
34
sexual interest and the enticement of power and superiority over the victim.” The
witness felt that Defendant’s own victimization as a child by the co-defendant may
35
have been a predisposing factor in her commission of the offenses.
Defendant’s expert, who had the benefit of examining and interviewing
3637
Defendant, which Plaintiff’s expert did not, agreed with Plaintiff’s witness that
38
a diagnosis of pedophilia in Defendant’s case was appropriate. He also agreed
that certain of her offenses made her statutorily eligible for sexually violent
39
predator status.
Dr. Schneider noted that Defendant had had no prior contact with the
4041
criminal justice system, and had maintained a generally positive work history.
He concluded that “Nichole’s personality inventory evidenced feelings of extreme
vulnerability. She produced a valid profile with personality traits reflecting a high
self-revealing inclination. Her findings are consistent with someone who is seen as
socially shy, submissive, insecure and vulnerable. She would typically place
herself in an inferior or demeaning situation and permit others to be inconsiderate,
if not exploitive, of her. Most notable is her habit of judging herself to be
valueless, of no account, a person who should be dismissed as insignificant and
inconsequential. She admits to having low self esteem and low self
worth. . . . There is no evidence in her background history—other than this recent
34
Commonwealth’s Ex. 1, at 4.
35
N.T. 23-24.
36
Defendant’s Ex. 1, at 1.
37
Commonwealth’s Ex. 1, at 2. Defendant’s counsel exercised her option not to participate in the
board’s assessment. Id.
38
Defendant’s Ex. 1, at 5; N.T. 61.
39
Defendant’s Ex. 1, at 5; N.T. 62.
40
Defendant’s Ex. 1, at 2; N.T. 64.
41
Defendant’s Ex. 1, at 4; N.T. 63.
9
conviction and the behaviors related to same—that would indicate that she would
42
take advantage or exploit others who are more defenseless than she.”
[R]egarding the issue of sexually violent behavior, this examiner does not
believe that Nichole meets the criteria to be identified as a sexually violent
predator given that she has had exposure and contact with younger
children, by virtue of her babysitting and helping her grandmother with
those responsibilities. She has not had contact with any other victims other
than this conviction. My findings reflect her to evidence an ability to be
respectful of appropriate boundaries, to self-manage, self-control and self-
regulate her behavior.
Nichole does not present evidence of being sexually preoccupied with
young girls and sex is not used as a coping strategy to help her deal[] with
the demands, stresses and responsibilities in her life. Further, she
evidences no attitudes supportive of sexual assault, sexual entitlement, nor
pro-rape nor pro-child molester attitudes—even given her conviction. . . .
Outside of the reported possession of sex toys with her husband, there is
no evidence of Nichole engaging in phone sex, her owning pornographic
materials, or engaging in sexually risky behaviors. She may be a victim of
child sexual abuse given her tender age when she became sexually
involved with Mr. Clark. Moreover, she has no psychopathy, mental
illness, personality disorder [other than pedophilia], or substance abuse.
There is no evidence of any impulse control problems; she evidences a
43
deep-seated respect for social conventions.
CONCLUSION
After a careful review of the record, including that of the trial over which
the undersigned presided, the court is of the view that Defendant should not be
classified as a sexually violent predator. Among the factors leading to this
conclusion are (a) the heavy burden of proof upon the Commonwealth on the
issue, (b) the court’s strong impression that Defendant was herself a victim of the
co-defendant and that he was the decisive influence in her commission of these
offenses, (c) the likelihood that the effect of ten or more years in the state prison
system will serve to overcome this influence and deter Defendant from
committing similar acts in the future, (d) the absence of a prior criminal record on
the part of Defendant and of any evidence of other inappropriate conduct by her
with children, (e) the motivational rehabilitation which may be anticipated from
42
Defendant’s Ex. 1, at 4-5.
43
Defendant’s Ex. 5.
10
her own recent motherhood, and (e) the opinion of an expert in the field that
Defendant does not meet the criteria for a sexual violent predator.
For the foregoing reasons, the court finds that the Commonwealth has not
proven by clear and convincing evidence that Defendant is likely to engage in
predatory sexually violent offenses hereafter. Accordingly, the following order
will be entered:
ORDER OF COURT
AND NOW, this day of January, 2010, upon consideration of the
Commonwealth’s Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), following a
hearing held on November 25, 2009, and for the reasons stated in the
accompanying opinion, Defendant is not found to be a sexually violent predator.
DEFENDANT IS DIRECTED to appear for sentence on Tuesday, January
19, 2010, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse,
Carlisle, Pennsylvania.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Jaime M. Keating, Esq.
First Assistant District Attorney
Gregory B. Abeln, Esq.
Attorney for Defendant
11
12
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) RAPE OF A CHILD
: (2) IDSI (VICTIM UNDER 16)
: (3) IDSI WITH A CHILD
: (4) STATUTORY SEXUAL ASSAULT
v. : (5) AGGRAVATED INDECENT
: ASSAULT ON A CHILD
: (6) AGGRAVATED INDECENT
: ASSAULT
: (7) INDECENT ASSAULT ON A
: CHILD
: (8) CORRUPTION OF MINORS
: (9) INDECENT ASSAULT
NICHOLE MARIE :
ROWE [CLARK] :
OTN: K386404-4 : CP-21-CR-0782-2008
IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this day of January, 2010, upon consideration of the
Commonwealth’s Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), following a
hearing held on November 25, 2009, and for the reasons stated in the
accompanying opinion, Defendant is not found to be a sexually violent predator.
DEFENDANT IS DIRECTED to appear for sentence on Tuesday, January
19, 2010, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse,
Carlisle, Pennsylvania.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
14
Jaime M. Keating, Esq.
First Assistant District Attorney
Gregory B. Abeln, Esq.
Attorney for Defendant