United States v. Avila

24 M.J. 501

• Court: U S Air Force Court of Military Review
• Decided: March 3, 1987
• Docket: ACM 25577
• Status: Published

Opinions

DECISION

SESSOMS, Senior Judge:

The accused was convicted, despite his pleas, of having committed an act of sodomy with his four year old stepdaughter at their off-base residence in Tacoma, Washington. The sentence imposed by the members included a dishonorable discharge, confinement for 10 years, reduction to pay grade E-l, and the forfeiture of $319 per month for 10 years. The convening authority reduced the confinement and forfeiture period to seven years.

Appellate defense counsel have assigned as error (1) the failure of the military judge to grant a motion to dismiss for lack of subject matter jurisdiction, and (2) the admission into evidence of the hearsay testimony of a clinical psychologist regarding her interview with the victim. The testimony of the psychologist was determined by the trial judge to be admissible under Mil. R.Evid. 803(4) as a statement which had been taken for the purpose of medical diagnosis or treatment. Because of our disposition of the jurisdictional question we do not reach the latter issue.

The salient facts which form the basis for the jurisdictional dispute are not complicated. The wife of the appellant, Deborah, had formerly served on active duty as a member of the Air Force. On 3 April 1981, and while she was attending technical school at Sheppard AFB, Texas, she married one Michael Pollock, also an Air Force member. Within six months of the marriage Deborah gave birth to her daughter, Diana, the victim in this case. Diana has been known as Diana Pollock since birth.

Deborah and Michael Pollock lived together as husband and wife until October 1982; first in Texas, and later in the Philippines where they had been posted on a joint assignment. In an action instituted by Deborah, they were subsequently granted a divorce by a Texas court, the jurisdiction in which they were married. The decree, which was issued on 27 March 1984, provided, inter alia, that Michael was not Diana’s biological father, and made no provision for her support. On 9 June 1984, while they were still in the Philippines, Deborah married the appellant, Sergeant Avila. She had apparently begun seeing him sometime during the previous fall.

After her return to the United States Deborah was discharged from the service because of an injury she had received in the course of her duties as a refrigeration specialist. Pollock’s assignment upon his return was to Buckley Field, Colorado. He was later moved to Tyndall AFB, Florida, his duty station at the time of the trial. The appellant returned from the Philippines to McChord AFB, Washington. Deborah and her daughter joined him there on 12 April 1985. The offense occurred sometime between that date and 15 January 1986.

Before denying the motion to dismiss the trial judge made detailed findings of fact regarding subject matter jurisdiction. These findings dealt with, among other things, the geography and demography of the area surrounding McChord Air Force Base, including the fact that the family residence was 3V2 miles from the base. He also made findings concerning the possible effect the allegations had on the accused, Sergeant Pollock, the military mission of McChord, the impact on the morale of the accused’s unit, and a wide variety of other factors which he considered to be relevant. Perhaps the most significant finding of the trial judge on the issue of subject matter jurisdiction is the one pertaining to the relationship of Sergeant Pollock to the victim. He concluded that under the laws of the State of Washington, Pollock was presumed to be the victim’s legal father because he was married to her mother at the time of her birth. As a result of this rebuttable presumption, Sergeant Pollock is a necessary party to any custody dispute that might arise in a Washington court. Apparently, it was upon this basis that the military judge concluded, and so judicially found, that Pollock was the child’s legal father. We have great difficulty in understanding his rationale in reaching this conclusion, particularly in view of the fact that he also judicially determined that the child had been conceived before Deborah and Michael became acquainted. He was also aware of the particulars of the Texas divorce decree. It seems obvious to us that under these circumstances this rebuttable presumption of parenthood would be summarily overcome if this issue were submitted for adjudication to any court of competent jurisdiction.

The Court of Military Appeals has held that, when other salient factors are present, there is a service-connection sufficient to bestow upon military courts subject matter jurisdiction of off-base sex offenses perpetrated by military members against the dependent daughters of fellow service members because of the continuing effects of the misconduct on the fathers of the victims. United States v. Abell, 23 M.J. 99, (C.M.A.1986); United States v. Solorio, 21 M.J. 251, (C.M.A.1986), cert. granted, — U.S. —, 106 S.Ct. 2914, 91 L.Ed.2d 543 (1986). Although many of the factors relied upon by our superior court in determining the existence of service-connection in the cases cited above are also present in this case, we believe that the tenuous relationship of Sergeant Pollock to the victim of this crime is considerably less than that of parenthood, and certainly is not sufficient to bring this case within the parameters of Solorio, and Abell, both supra. If the misconduct of this appellant had any perceivable effect on Sergeant Pollock, it seemed to manifest itself in the concern that he might somehow be required to become responsible for child support in the future. This is hardly the effect on the fathers of victims that the Court of Military Appeals was contemplating when deciding Solorio and Abell. We are convinced that there are no factors present in this case that are sufficiently significant to distinguish it from United States v. Bolser, 22 M.J. 564, (A.F.C.M.R.1986) , or United States v. Dale, 23 M.J. 598, (A.F.C.M.R.1986). We therefore find, as we did in those cases, that the trial court was without subject matter jurisdiction over the alleged offenses and that the military judge erred in denying the motion to dismiss.

The findings and sentence are hereby set aside and the charges are

DISMISSED.

Senior Judge FORAY and Judges STEWART, MICHALSKI, and MURDOCK concur.