United States v. Datavs

70 M.J. 595, 2011 CCA LEXIS 425, 2011 WL 5986827
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 9, 2011
DocketACM 37537
StatusPublished
Cited by15 cases

This text of 70 M.J. 595 (United States v. Datavs) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Datavs, 70 M.J. 595, 2011 CCA LEXIS 425, 2011 WL 5986827 (afcca 2011).

Opinions

OPINION OF THE COURT

ORR, Senior Judge,

delivered the opinion of the Court, in which BRAND, Chief Judge, joined:

Contrary to his pleas, a general court-martial composed of officer and enlisted members convicted the appellant of one specification of making a false official statement, one specification of forcible anal sodomy and one specification of forcible oral sodomy, in violation of Articles 107 and 125, UCMJ, 10 U.S.C. §§ 907, 925. The adjudged sentence consisted of a dishonorable discharge, forfeiture of all pay and allowances and reduction to the grade of E-l. The convening authority approved the sentence as adjudged. The appellant raises four issues for our consideration: 1) whether his trial defense counsel were ineffective; 2) whether the military judge abused his discretion by not permitting trial defense counsel to argue the mitigation of sex offender registration through reasonable inference and common knowledge; 3) whether the convening authority violated Rule for Courts-Martial (R.C.M.) 1107(d)(2) by approving total forfeitures of pay even though the appellant received no confinement; and 4) whether the appellant’s sentence to a dishonorable discharge was too severe. We heard oral argument on this case in the courtroom of the Supreme Court of Nevada in Las Vegas, Nevada, as part of our Outreach Program. After considering the record of trial, the briefs and arguments of counsel, with the exception of issue three, we find no error that materially prejudices a substantial right of the appellant and affirm. We take direct corrective action for the im[597]*597proper convening authority action in our concluding paragraph.

Background

The appellant was a Special Operations Equipment Maintenance member stationed at Cannon Air Force Base (AFB), New Mexico. Approximately a month and a half prior to the events leading to his court-martial, the appellant met SF, a woman who lived approximately 30 minutes from Cannon AFB. They saw each other on a weekly basis at softball games and the relationship between the appellant and SF progressed to a consensual sexual relationship. Late in the evening of the 14th of June 2008, the appellant asked SF to come to his apartment to discuss his upcoming deployment to Turkey. SF agreed and arrived at approximately 0200 the following day. SF knocked on the door and woke the appellant’s roommates, a married Airman and his wife who were renting out an extra room to the appellant. SF told them she was there to see the appellant and they let her in. SF then went to the appellant’s room where she found the appellant asleep so she woke him. They began kissing and quickly progressed to having consensual vaginal intercourse.

SF testified at trial that, unlike their first sexual encounter, the appellant became demanding. He asked her to perform oral sex to which she told the appellant “no,” but he pulled her head down and forced her to take his penis into her mouth. They then engaged in vaginal intercourse again, and although SF said she was now afraid, she continued because she did not want to make the appellant angry by refusing. SF testified the appellant put her into uncomfortable positions during intercourse, which caused her pain, but again, she did not complain to the appellant. At one point, the appellant slapped SF in the back and told her she “wasn’t in the right position.” SF then testified the appellant told her he wanted to have anal sex. She told the appellant “no,” but according to SF, the appellant proceeded despite her refusal. SF said the anal sex hurt so she shifted her weight and position, causing the appellant to stop. They then engaged in vaginal intercourse again, followed by SF performing oral sex on the appellant a second time.1 Afterwards, SF and the appellant talked and she left the house.

SF went home and then went to church later in the day. That night, she told her mother “I may have been raped.” Her mother advised her to go to the hospital for a rape examination. SF agreed and was seen by TB, a registered Sexual Assault Nurse Examiner (SANE), and a family acquaintance. SF told TB that she had been sexually assaulted, to include being anally penetrated against her will. TB took several pictures and wrote a report outlining her findings. SF filed a complaint with Detective RP of the Clovis Police Department in New Mexico. On 23 June 2008, she told the detective that, although they started out having consensual vaginal sex, the appellant forced her to engage in oral and anal sex. On 28 July 2008, Detective RP and Special Agent PC of the Air Force Office of Special Investigations, interviewed the appellant in response to SF’s allegations. After being properly advised of his rights, the appellant told them the oral sex with SF was consensual. Initially, the appellant told the investigators that he had never had anal sex. When pressed, he said it may have “slipped in when he was from behind” but he pulled out and because it happened so quickly he did not consider it anal sex. Finally, he gave a written statement saying, “I asked her if she wanted to try anal. I had never tried it before and she said she was willing to try it.”

Ineffective Assistance of Counsel — Part A

Prior to trial, defense counsel2 asked the convening authority to appoint a SANE to the defense team to assist during case preparation and to possibly testify in the defense’s case-in-chief. The convening authority denied the request. Trial defense counsel then submitted a motion to compel production of a [598]*598SANE expert with the military judge, saying:

An expert consultant SANE is a necessity in Defense preparation of this case. No member of the Defense team has received formal or informal training regarding forensic evidence collection from a complainant after an allegation of sexual assault. Defense consultant will be utilized to confirm the accuracy of the findings of Government’s SANE .... the consultant may assist as a witness to explain said favorable evidence to court.... There is a reasonable probability that not ordering the appointment of such an expert would result in a fundamentally unfair trial.

Prior to the start of the court-martial, and before the judge could rule on the motion, trial defense counsel interviewed TB for several hours. Based on this conversation, counsel determined TB’s testimony would not harm the defense’s case if she only discussed the anal injuries she observed rather than the vaginal trauma she noticed. Defense counsel then entered into an agreement with the prosecution, electing to withdraw the motion to compel on the condition that the government’s SANE expert, TB, would not testify about the vaginal injuries she observed during the victim’s sexual assault examination, and would limit her testimony to portions of the examination related to the injuries to the anus only.

At trial, TB’s testimony was apparently not what defense counsel expected. Rather than the benign comments they thought she would make regarding the anal injuries, she testified the victim suffered extensive blunt force trauma to the area and opined the injuries were consistent with “forced anal penetration by a man’s penis.” TB also testified that you would not usually see any lacerations from consensual sodomy “because that particular sexual act is for pleasure, not for pain and when it’s done in a controlled environment with ... lubrication, [and a] willing party ...

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Cite This Page — Counsel Stack

Bluebook (online)
70 M.J. 595, 2011 CCA LEXIS 425, 2011 WL 5986827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-datavs-afcca-2011.