United States v. Allen

50 M.J. 84, 1999 CAAF LEXIS 7, 1999 WL 166816
CourtCourt of Appeals for the Armed Forces
DecidedMarch 26, 1999
Docket97-1016/AR
StatusPublished
Cited by28 cases

This text of 50 M.J. 84 (United States v. Allen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Allen, 50 M.J. 84, 1999 CAAF LEXIS 7, 1999 WL 166816 (Ark. 1999).

Opinions

Judge EFFRON

delivered the opinion of the Court.

A general court-martial composed of officer and enlisted members convicted appellant, pursuant to his mixed pleas, of rape (3 specifications), committing indecent acts (2 specifications), adultery (3 specifications), and providing alcoholic beverages to a minor (4 specifications), in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 USC §§ 920 and 934, respectively. Appellant was sentenced to a dishonorable discharge, confinement for 6 years, and reduction to the grade of E-l. The convening authority approved the sentence as adjudged, and the Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

On appellant’s petition, we granted review of the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT A FINDING OF GUILTY OF RAPE AND ADULTERY BECAUSE THE EVIDENCE PRESENTED AT TRIAL SIGNIFICANTLY VARIES FROM THE SPECIFICATIONS ALLEGED IN THE PLEADINGS.

At issue in this appeal is Charge II, consisting of six specifications of rape. Each specification addressed either a weekend in November or December 1994, and each specification further alleged that, within each such weekend, appellant committed rape “on divers occasions.” For the reasons stated below, we conclude that the findings of guilty of rape should be consolidated into one specification, and as modified, we affirm the findings and the sentence.

I.

With respect to each of the rape specifications under Charge II, the victim was appellant’s 15-year-old sister-in-law, T.P. At trial, the defense presented expert testimony by a clinical psychologist, Dr. Brams, detailing T.P.’s mental capabilities. According to Dr. Brams, T.P. suffered from “significant language deficits.” T.P. tested in the bottom first percentile in her ability to understand directions, to communicate in her environment, and to understand what people told her. She scored in the second percentile in her understanding of the complexity of language. She scored in the ninth percentile in her ability to formulate sentences. Overall, her IQ score was 52, which, Dr. Brams testified, put her in “the moderately retarded range, the very high end of moderately retarded, the very low end of mildly mentally retarded.”

T.P. testified at trial that she had engaged in sexual intercourse with appellant “more than once,” but she was unable to identify the dates or the exact number of times that intercourse had occurred. She stated that the intercourse had occurred while her sister, appellant’s wife, was at work. The Government also introduced testimony concerning a medical examination indicating that T.P. had experienced sexual intercourse, as well as testimony concerning appellant’s access to T.P. The defense introduced contradictory medical testimony, as well as testimony disputing appellant’s access on five of the six weekends covered by the six specifications.

The panel convicted appellant of three specifications of rape on divers occasions for the weekends of November 25-26, December 16-17, and December 30-31. The panel returned not guilty verdicts for the specifications alleging rape on December 2-3, 9-10, and 23-24.

II.

A. VARIANCE

Appellant contends that his convictions for rape should be set aside because the proof at trial varied significantly from the offenses alleged in the pleadings. He takes the position that the proof at trial was not specific as to the dates of the alleged rapes, that this lack of specificity constituted a variance, and that he was prejudiced by the variance be[86]*86cause he is not protected from future prosecution for the same offenses.

The Government counters that there was no material variance between the offenses charged — rape on divers occasions over a period of six weekends — and those that were proved. The Government contends that, because testimony at trial established that the rapes had occurred during that same 6-week period, there was no fatal variance in this case.

A variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge. See United States v. Lee, 1 MJ 15, 16 (CMA 1975). “To prevail on a fatal-variance claim, appellant must show that the variance was material and that it substantially prejudiced him.” United States v. Hunt, 37 MJ 344, 347 (CMA 1993).

Even assuming there was a variance in this case, it was neither material nor prejudicial. The Government charged the rapes as occurring “on or about” each of the six specified weekends. When a charge employs “on or about” language, the Government is not required to prove the specific date alleged in the charge. In this case, the victim was able to recall only that the rapes began when her sister, appellant’s wife, began working outside the home. At trial, the Government introduced Mrs. Allen’s work schedule, which showed that she began working weekends on November 11, 1994, and that she had worked on all of the weekends specified in Charge II. Although the evidence adduced at trial was not specific as to the particular dates on which intercourse occurred, the evidence focused on the identical time frame alleged in the specifications and, therefore, did not constitute a material variance.

Appellant was not prejudiced by the manner in which the offenses were charged. In order to show prejudice, appellant must show both that he was misled by the language of Charge II, such that he was unable adequately to prepare for trial, and that the variance puts him at risk of another prosecution for the same offense. See Lee, 1 MJ at 16. Far from misleading appellant, the specifications of Charge II established a finite time frame, which defense counsel then used to present a defense based on lack of access to the victim. In addition, the findings are sufficiently definite to protect appellant against another prosecution for the same offenses because the “on or about” language of the Charge II specifications enables him to rely on the record of trial and convictions in this case to establish a former jeopardy defense to any subsequent criminal proceeding based on the same conduct.

B. SUFFICIENCY OF THE EVIDENCE

Appellant also argues that the evidence at trial was legally insufficient to support convictions for three separate specifications of rape on three separate weekends. In determining whether evidence is legally sufficient to support a conviction, this Court must view the evidence in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A conviction for three specifications for rape on divers occasions would entail a finding by the panel that at least two acts of intercourse occurred on each of the three weekends.

At trial, the victim’s doctor testified that, based on a physical examination of the victim, he concluded that she had been “sexually active at least on several occasions in the past.” The victim testified that she had engaged in intercourse with appellant “more than once.” No further evidence was presented as to the number of times intercourse had occurred.

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Cite This Page — Counsel Stack

Bluebook (online)
50 M.J. 84, 1999 CAAF LEXIS 7, 1999 WL 166816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-allen-armfor-1999.