Date: 11-05-2024

Case Style:

Adam Clayton Zilm v. Steven Harpe

Case Number: 4:20-CV-509

Judge: Claire V. Egan

Court: United States District Court for the Northern District of Oklahoma (Tulsa County)

Plaintiff's Attorney: United States District Attorney’s Office in Tulsa

Defendant's Attorney:

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Description:

Tulsa, Oklahoma criminal defense lawyer represented the Defendant charged with sexual abuse of a child under the age of twelve.

The victim was K.A., the eleven-year-old daughter of Zilm’s girlfriend. In her
initial disclosures to a neighbor, a sexual assault nurse, and a forensic interviewer, K.A.
said she and Zilm were alone in his bedroom while her mother was at work. She was not 2
wearing underwear and he was wearing only his boxers. She said he massaged her
buttocks and labial area for several minutes, and while massaging her buttocks, he
penetrated her anus with his penis.

After her forensic interview, two police officers interviewed Zilm. His description
of the incident was generally consistent with K.A.’s, but he denied touching her with his
penis. He said either the pressure of the massage might have caused her to feel like
something was in her anus or the massage oil made his hand slip and he accidentally
jabbed her anus with his thumb. He said that at some point during the massage he
touched his own genitals.

K.A.’s testimony at the preliminary hearing was consistent with her initial
disclosures. On cross examination, she said she did not see whether it was Zilm’s penis
or his thumb that penetrated her. She said the incident gave her flashbacks of prior
sexual abuse by a relative, but denied that those memories influenced what she believed
happened during the incident with Zilm. She admitted she sometimes did not tell the
truth, but on redirect, she said her testimony was the truth.

About a year later, Zilm moved for a new preliminary hearing, alleging that K.A.
had recanted to her mother within days of disclosing the sexual abuse, that two
employees of the Oklahoma Department of Human Services (ODHS) involved in a
separate juvenile proceeding knew she had recanted, and that the prosecutor knew or
should have known before the preliminary hearing that she had recanted but did not
disclose that information to the defense. After an evidentiary hearing, the trial court
remanded the case for a new preliminary hearing, finding that “individuals not employed
by the District Attorney’s Office, by misfeasance or malfeasance, exercised unreasonable
influence on the minor child K.A. to secure testimony to which she had since recanted
repeatedly.” Aplt. App. vol. I at 13 (internal quotation marks omitted). It held that her
testimony at the first preliminary hearing was inadmissible but, after a later hearing, ruled
that the State could impeach her at trial with prior inconsistent statements she made at the
first preliminary hearing. K.A. did not testify at the second preliminary hearing.

Zilm moved to suppress his statement to police. After a hearing, the trial court
found the statement was voluntary and non-custodial and held that the portion of the
statement he made before he invoked his right to counsel was admissible.

The court also held a pretrial hearing to assess the admissibility of K.A.’s
statements to the neighbor and the forensic interviewer pursuant to Okla. Stat. tit. 12,
§ 2803.1(A), which provides for the admission of hearsay statements by a child regarding
sexual contact involving the child. K.A., the neighbor, and the forensic interviewer
testified, and the State showed a videotape of the forensic interview. The court held the
statements were inadmissible under the statute. But at a later hearing the court held the
State could impeach K.A. with prior inconsistent statements she made during the
interview. And at trial, despite its prior ruling, the court admitted K.A.’s statement to the
neighbor under the excited utterance exception in Okla. Stat. tit. 12, § 2803(2).

At trial, K.A. testified that on the day of the incident she told the neighbor and her
roommate she had a nightmare. When impeached with her testimony from the first
preliminary hearing, she said that testimony was false. She testified that her initial
reports were based on a nightmare about prior sexual abuse and that Zilm accidentally
jabbed her with his thumb during the massage. She further testified that her neighbor told
her what to say during her forensic interview and that ODHS case workers and the
prosecutor told her to repeat her initial disclosures, which she now said were not true.
The trial court instructed the jury to consider the impeachment evidence only for
purposes of evaluating K.A.’s credibility and not as proof of Zilm’s guilt or innocence.

The jury also heard testimony from an expert on Child Sexual Abuse
Accommodation Syndrome about the reasons why a child may recant after disclosing
sexual abuse. The neighbor and sexual assault nurse testified about their observations of
K.A. that day and her disclosures to them. They both testified that K.A. said nothing
about having a nightmare or previous sexual abuse. The neighbor denied telling K.A.
what to say about the incident.

The defense presented testimony from a DNA analyst that Zilm’s DNA was not
found on any swabs obtained from K.A.’s sexual assault examination kit. Zilm did not
testify, but the jury heard the audiotaped recording of his statement to police.

Outcome: Defendant was found guilty.

Plaintiff's Experts:

Defendant's Experts:

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