United States v. Deland

16 M.J. 889, 1983 CMR LEXIS 828
CourtUnited States Court of Military Appeals
DecidedJuly 29, 1983
DocketCM 442202
StatusPublished
Cited by5 cases

This text of 16 M.J. 889 (United States v. Deland) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Deland, 16 M.J. 889, 1983 CMR LEXIS 828 (cma 1983).

Opinion

OPINION OF THE COURT

FOREMAN, Judge:

Contrary to his pleas, the appellant was convicted of falsifying an official document, his “officer’s record brief”; statutory rape; sodomy; and conduct unbecoming an officer, in violation of Articles 107,120,125 and 133, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920, 925 and 933 (1976). His approved sentence provides for a dismissal, confinement at hard labor for ten years and total forfeitures.

The appellant contends, inter alia, that the military judge erred by allowing a psychiatrist to testify regarding the victim’s statements about the sex offenses, that the evidence is insufficient to support his conviction, and that the post-trial review is prejudicially misleading.

I. The Facts

A. The Sex Offenses

The appellant was divorced in 1979 and Mrs. Deland was given custody of their three children. The appellant retained visitation rights. The victim of the sex offenses was the appellant’s seven-year-old daughter, Stefanie. She testified that while visiting the appellant in July 1980 he inserted his penis into her vagina twice, once while they were locked in the bathroom and again when she was in bed. She also testified that the appellant placed cream on her hands and told her to rub it on his penis, which she did. She further testified that the appellant spooned honey onto her vagina while she was in bed and licked it.

Stefanie’s twin sister, Bridget, and an older brother, Erik, corroborated her account of the incident in the bathroom. They testified that the appellant was alone in the bathroom with Stefanie, that Bridget tried to enter the bathroom but could not because the door was locked, that Stefanie was crying when she came out with the appellant, and that the appellant told Stefanie not to tell Bridget what had happened.

In April 1981, while Stefanie’s mother was driving Stefanie, Bridget and Erik to visit the appellant she heard Stefanie tell Bridget that “daddy” had inserted his penis into her vagina. Impelled by a desire to ascertain the truth of Stefanie’s accusation and concerned about Stefanie’s recent antisocial behavior and persistent nightmares, Mrs. Deland took Stefanie to a Doctor Steude, who in turn referred Stefanie to a Doctor Schnackenberg, a child psychiatrist. Doctor Schnackenberg administered several tests to Stefanie, including a sentence completion test in which she was instructed to complete sentences with whatever thoughts came immediately to her mind. Among the thirty-four sentences which Stefanie was asked to complete, she completed three of them as follows (the underscored portion completed by Stefanie):

I worry about daddv.
I don’t like daddv doing these things to me.
Sometimes I think about daddv and me alone.

When Doctor Schnackenberg questioned Stefanie about her answers, she told him that the appellant had placed his penis in her vagina, asked her to lick and suck his penis, and licked her vagina. The military judge permitted Doctor Schnackenberg to testify over defense objection, ruling that his testimony was admissible under Military Rule of Evidence 803(4).

Captain Sara Rodgers, M.D., a pediatrician, testified that she examined Stefanie nine to twelve months after the incident and found a slight stretching of the perihymenal area, but no other physical signs of sexual intercourse. Captain Rodgers testified that such stretching was abnormal, but that her opinion was a judgment call which might be contradicted by other experts.

[891]*891The appellant testified on his behalf and denied sexually molesting Stefanie. Lieutenant Colonel Milton Hutchinson, M.D., an expert in obstetrics and gynecology, testified that he examined Stefanie and found no evidence of stretching in her vagina and no other evidence of sexual molestation. The defense also introduced evidence to establish that Mrs. Deland was engaged to a man who physically resembled the appellant, had a history of child molestation, collected pornography, and had a habit of masturbating while watching pornographic movies.

In rebuttal the prosecution called two of the appellant’s former supervisors who testified that the appellant had a poor reputation for truthfulness.

B. The Offenses Involving the Appellant’s Personnel Records

The civilian education section of the appellant’s officer record brief (ORB) which was prepared in May 1980 reflected that the appellant had a Masters Degree in International Relations from Canal Zone College. On 2 September 1980 the appellant audited his ORB and signed it after making numerous corrections in the assignment history section, updating the date of his latest physical examination and changing his mailing address. He made no change to the civilian education section. On 3 June 1981 the appellant was advised by a military law enforcement agent that he was suspected of rape, sodomy, conduct unbecoming an officer and falsifying his personnel records. On 6 July 1981, in compliance with a written request dated 18 June 1981 that he perform the annual audit of his records, the appellant again audited his ORB and made several changes, including deletion of the masters degree from Canal Zone College. The appellant also deleted an entry reflecting that he could read and understand Chinese, which had not appeared in the May 1980 ORB. He also corrected his permanent grade and date of rank, even though those two entries were reflected in the same erroneous manner on both the May 1980 and September 1980 ORBs. Lastly, he corrected his mailing address, place of birth and made additional corrections in his assignment history. First Lieutenant Kenneth Carroll, who had been the appellant’s executive officer from May 1980 until November 1980, testified that the appellant told him that he had two masters degrees. Mrs. Gene Handy, who had been the appellant’s secretary, also testified that the appellant told her that he had two masters degrees. Mrs. Deland testified that the appellant did not attend any college classes while they were stationed in Panama.

II. The Admissibility of Doctor Schnackenberg’s Testimony

Over defense objection, the military judge admitted the testimony of Doctor Schnackenberg under Military Rule of Evidence 803(4) as substantive evidence that Stefanie had been molested. The rule allows the admission, as an exception to the hearsay rule, of “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” The military rule adopts Federal Rule of Evidence 803(4). See Manual for Courts-Martial, United States, 1969 (Revised edition), Analysis of the Military Rules of Evidence at A18-103 through A18-104.

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Related

United States v. Green
52 M.J. 803 (Navy-Marine Corps Court of Criminal Appeals, 2000)
United States v. Milliren
31 M.J. 664 (U S Air Force Court of Military Review, 1990)
United States v. Tu
30 M.J. 587 (U.S. Army Court of Military Review, 1990)
United States v. Deland
22 M.J. 70 (United States Court of Military Appeals, 1986)
United States v. Cottriel
21 M.J. 505 (U.S. Navy-Marine Corps Court of Military Review, 1985)

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Bluebook (online)
16 M.J. 889, 1983 CMR LEXIS 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-deland-cma-1983.