United States v. Ciulla

32 M.J. 186, 1991 CMA LEXIS 45, 1991 WL 50326

• Court: United States Court of Military Appeals
• Decided: April 11, 1991
• Docket: No. 64,058; ACM 27528
• Status: Published

Opinions

Opinion of the Court

COX, Judge:

Appellant challenges the propriety of the military judge’s receipt of certain presentencing evidence in this judge-alone trial.¹

Appellant pleaded guilty’to committing sodomy and indecent acts upon his natural daughter, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. The charged conduct to which appellant judicially confessed — staggering in both quantum and degree — occurred while the child was between the ages of 10 and 13.² Upon a detailed providence inquiry, the military judge accepted appellant’s pleas and found him guilty. Prior to pronouncing sentence, the judge heard expert testimony about the massive psychological damage suffered by the victim.

The military judge sentenced appellant to a dishonorable discharge, confinement for 40 years, and reduction to E-3. The convening authority approved the sentence. The Court of Military Review reduced the confinement to 30 years, but otherwise affirmed the findings and the sentence, noting that it had “found no Air Force case for which similar child abuse offenses — however heinous — include[d] such a lengthy term of confinement.” 29 M.J. 868, 870 (1989).

The issue on appeal relates to a brief exchange that occurred on sentencing between trial counsel and the victim. Trial counsel was permitted to ask the victim this question, over defense objection based on relevance:

[D]uring the time that dad was doing these things to you, did dad ever say anything to you about doing these things to other girls?

The military judge’s rationale for permitting the question was:

Well, I believe I’m able to separate out anything that’s overly prejudicial and will not consider it in an undue fashion, but, based on the offered relevance at this point I will allow the matter to proceed until I determine, if at all, that it is not relevant

(Emphasis added.)

In response to the question, the victim testified that, on one occasion during the period in question, appellant expressed a desire to “do it” to one of her friends and to see this other girl naked. That was the extent of the challenged testimony; its propriety was never again addressed insofar as we can determine.

We resolve this case on any of three grounds. First, it is not at all clear that the military judge considered the information for any purpose. Given the tentative nature of the judge’s ruling, it was incumbent upon the defense to renew the objection and seek clarification prior to the time sentence was announced. The objection was thus waived.

Second, nothing would seem less surprising than to learn that one who had been sexually abusing his own daughter for years might entertain similar fantasies about other young girls. The expert testified to the same effect in any event. Given the magnitude of appellant’s offenses against the victim, we see no danger that this bit of testimony affected his punishment.

Third, “aggravating circumstances directly relating to ... the offenses of which the accused has been found guilty” may be introduced by the prosecution on sentencing. ROM 1001(b)(4), Manual for Courts-Martial, United States, 1984. As we have construed it, this type of state-of-mind/depth-of-problem evidence was directly related to the charged offenses. United States v. Mullens, 29 MJ 398 (CMA 1990), citing United States v. Silva, 21 MJ 336 (CMA 1986), and United States v. Martin, 20 MJ 227 (CMA 1985), cert. denied, 479 U.S. 917, 107 S.Ct. 323, 93 L.Ed.2d 295 (1986).

The decision of the United States Air Force Court of Military Review is therefore affirmed.

Chief Judge SULLIVAN concurs.

1 . As framed by appellant, the issue is:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ALLOWING THE VICTIM TO TESTIFY TO APPELLANT’S EXPRESSED DESIRE TO SEE A FRIEND OF THE VICTIM’S NAKED AND TO COMMIT INDECENT ACTS WITH THAT FRIEND.

2 . In addition, the victim testified, without defense objection, that the abuse began with inappropriate touching in the bathtub when she was about 2 years old; it escalated to full sodomy when she was in the second or third grade; and it continued unabated to age 13, at which point she finally reported it to her mother.