United States v. Buenaventura

40 M.J. 519, 1994 CMR LEXIS 219, 1994 WL 317518
CourtU.S. Army Court of Military Review
DecidedJuly 6, 1994
DocketACMR 9200939
StatusPublished
Cited by3 cases

This text of 40 M.J. 519 (United States v. Buenaventura) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Buenaventura, 40 M.J. 519, 1994 CMR LEXIS 219, 1994 WL 317518 (usarmymilrev 1994).

Opinions

OPINION OF THE COURT

LANE, Judge:

On mixed pleas, the appellant was convicted by a general court-martial composed of officer members of absence without leave, two specifications of rape, two specifications of indecent acts with a child under sixteen years of age, indecent liberties with a child under sixteen years of age, and two specifications of breaking restriction in violation, of Articles 86, 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 920 and 934 (1988) [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and reduction to Private E1.

Citing the “constitutionally required” exception to Military Rule of Evidence 412 [hereinafter Mil.R.Evid.], the appellant asserts, inter alia, that the military judge erred in excluding evidence of sexual abuse of the victim by her grandfather and how this abuse may have psychologically affected her, thus denying the appellant “his only viable defense” to the sexual offenses. We disagree.

I. Facts

The sexual offenses of which the appellant was convicted reportedly occurred in the Fort Lewis, Washington, quarters of his sister and brother-in-law. The appellant visited in those quarters for approximately one month before deploying to, and for approximately one month upon his return from, Saudi Arabia. This latter visit was from August to September, 1991. The victim, A, is the [521]*521appellant’s niece. At the time of the alleged offenses, A was eight years of age.

On 10 September 1991, A, on her own initiative, sought out a school counselor and reported that she had been sexually molested by her grandfather1 and the appellant. She repeated these allegations in subsequent discussions with a therapist and Dr. Peterson, a clinical psychologist, both of whom appeared as government witnesses during the appellant’s trial. During these discussions, A’s descriptions of some of the abusive acts she ascribed to the appellant were similar in a number of particulars to the abusive acts she ascribed to her grandfather.

At trial, the appellant sought to be allowed to admit evidence of A’s molestation by her grandfather (through the testimony of A’s father and the school counselor) and the testimony of Dr. Peterson as to its possible impact on A’s psychological condition.2 This evidence formed the basis of the appellant’s defense that A was subconsciously substituting the appellant for the grandfather when recalling the incidents of abuse. The military judge denied the defense motion, finding that the matter was not of constitutional proportions so as to fall under that exception in Mil.R.Evid. 412.

When Dr. Peterson appeared during the trial as a government expert witness, the appellant’s counsel requested an Article 39(a), 10 U.S.C. § 839(a), UCMJ, session. He objected to the government’s proffer that Dr. Peterson would only discuss various concepts relative to child abuse without tying them to this case specifically. He claimed once again that this denied the defense the benefit of Dr. Peterson’s expert opinion on the appellant’s contention that children often try to “normalize” memories of abuse by incorporating a friendly, nonabusive person into their recall of the abuse. The military judge called Dr. Peterson to testify at the Article 39(a), UCMJ, session, so that he could hear the expert testimony before ruling on what testimony would be allowed before the panel.

During the trial counsel’s direct examination, Dr. Peterson stated that it was common for children to delay reporting abuse, that if molested more than once there could be inconsistencies in tying the abuse to different people, that children do remember important events but remember more recent events best (the concept of “recency”), and that a child’s temporal understanding is not well-developed.

Under cross-examination by the defense counsel, Dr. Peterson testified that persons suffering from post-traumatic stress disorders relive the stressful events, often vividly. He stated that he had interviewed A and studied materials relating to her ease, and that he had diagnosed A “as suffering from a post-traumatic stress type of disorder.” Counsel next asked if Dr. Peterson had an opinion, based on A’s reports of abuse, as to whether, on 10 September 1991, she had recently suffered a post-traumatic stress event. Dr. Peterson said that “it was my impression ... that she was experiencing some signs of post-traumatic stress at that time.” Defense counsel then pressed with the question of whether such an event could affect the victim’s concept of recency. Dr. Peterson stated that “[fit’s possible that recency would not apply because of the recall— the vividness of the recall of the original post-traumatic event — the stressful event.”

[522]*522After some questions concerning cross-modal memory (the ability to identify past sensations through current visual stimulus) and accuracy of recollections, defense counsel asked about the concept of “normalization.” Dr. Peterson first explained the concept as a child trying to make sense of something that is difficult for them to understand by reenacting the event in their play.3 The defense counsel then asked if that concept included the phenomenon of “integrating a non-abusing person in the normalization process.” Dr. Peterson responded:

Given the limited strategies a child has available to them to deal with events which are outside of [the] realm of normal experience, it would not be unusual for a child to attempt to make sense out of something that was horrific by replacing the individual who abused them with someone who is much more acceptable. It’s not much not [sic] different than fantasizing about being married for a child who is eight or nine years old.

Dr. Peterson went on to say that it was not that the child was lying, but that the child’s recall had to be examined “memory-by-memory.” Defense counsel closed his examination of Dr. Peterson with the following exchange.

Q. Doctor Peterson, let me ask you one question. You have interviewed the child, reviewed the records and statements, done testing, and made a diagnostic finding. Is that correct?
A. Correct.
Q. Are your findings, based on your training, testing, and expertise, necessarily inconsistent with Specialist Buenaventura’s claim that he didn’t do it?
A. Not necessarily inconsistent.

The military judge then asked Dr. Peterson several questions, to “clear up my understanding.” After explaining that younger children recall less, but with more accuracy, than older children, and that leading questions also elicit more information but not necessarily more accurate information, Dr. Peterson made the following statement concerning spontaneous, uninterrupted reports of abuse by children.

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Related

United States v. Cordoba
991 F. Supp. 1199 (C.D. California, 1998)
United States v. Buenaventura
45 M.J. 72 (Court of Appeals for the Armed Forces, 1996)
Isely v. Capuchin Province
877 F. Supp. 1055 (E.D. Michigan, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
40 M.J. 519, 1994 CMR LEXIS 219, 1994 WL 317518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-buenaventura-usarmymilrev-1994.