United States v. Evans

23 M.J. 665, 1986 CMR LEXIS 3015
CourtU.S. Army Court of Military Review
DecidedNovember 14, 1986
DocketCM 447204
StatusPublished
Cited by8 cases

This text of 23 M.J. 665 (United States v. Evans) 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. Evans, 23 M.J. 665, 1986 CMR LEXIS 3015 (usarmymilrev 1986).

Opinion

OPINION OF THE COURT

KENNETT, Judge:

Tried by a general court-martial with officer members, appellant was convicted, contrary to his pleas, of rape, forcible sodomy,1 and aggravated assault in violation of Articles 120,125, and 128, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. §§ 920, 925, and 928 (1982), respectively. He was sentenced to a dishonorable discharge, confinement for life,2 forfeiture of all pay and allowances, and reduction to the grade of Private E-l. The convening authority approved the sentence.

On appeal, appellant alleges numerous errors, either personally3 or through counsel. Four of these alleged errors, concerning the admissibility of hearsay statements made by the victim, appellant’s four-year-old daughter, and the sufficiency of the evidence to sustain the rape and sodomy convictions, will be discussed. The remaining alleged errors, including those personally asserted by appellant, are without merit.

[667]*667I. FACTS

Sometime on 3 April 1984, Chief Warrant Officer Two (CW2) David Vigeant received a telephone call at his place of duty, the Erlangen Health Clinic (Erlangen, Germany), from a “concerned father.” The individual was crying, had a “whining voice,” and seemed to CW2 Vigeant to be very upset. The individual related that his four-year-old daughter had fallen, sustaining a bloody nose and a bruise to the side of her face. CW2 Vigeant queried whether the child had lost consciousness, to which the caller replied “No.” CW2 Vigeant then asked whether the girl was alert and acting “okay,” to which the reply was “Yes.” CW2 Vigeant told the caller there didn’t seem to be “too much to worry about,” but cautioned “Just watch her.” The individual replied he was afraid “people” would think the child had been abused because of her appearance. CW2 Vigeant told him not to worry because “children oftentimes fall,” but that, if the father was concerned about the child’s health, he could bring her to the clinic. Later that day, CW2 Vigeant heard the father’s voice in the clinic. He located the father in the hallway across from the treatment room. In the treatment room, GW2 Vigeant saw “a very frightened little girl” with “a large bruise that covered the whole right side of her face.”

Between 0900-1000, 3 April 1984, Mr. William Moersch received a telephone call at his place of duty, the Emergency Room at the U.S. Army Hospital, Nuernberg, Germany. The caller identified himself as either Sergeant or Specialist Evans, and told Mr. Moersch that his four-year-old daughter, Michelle, had fallen down some stairs earlier that morning, sustaining a “facial head injury.” The caller informed Mr. Moersch that he had already discussed the “situation” with the Erlangen Clinic, and Mr. Moersch asked why he was now calling the Emergency Room. As the conversation progressed, the caller stated that the child was bleeding from the vagina: Mr. Moersch asked, “[CJould this have happened ... in the fall?” The caller replied, “[N]o, ... he did not feel that ... was a possibility at all.” He stated no other children were present. He then asked Mr. Moersch whether the child could be starting her menstrual cycle, as the child’s mother had begun her cycle at age nine. Mr. Moersch replied that such an occurrence would be very unlikely in a four-year-old. As the two men continued to talk about how the bleeding had started, the caller became “considerably more anxious, sobbing intermittently, somewhat less coherent.” Suddenly, the caller stated, “It looks like she’s been screwed.” As that comment seemed “totally out of the context ... of the conversation” they were having, Mr. Moersch asked the caller for an explanation. The individual stated his wife and child had been molested on one occasion in the past when he was not at home, and he reiterated his belief that the bleeding did not result from the fall on the stairs. Mr. Moersch advised him to bring the child to the Emergency Room in Nuernberg. The caller did not resist the advice. Sometime in “early mid-afternoon” that same day, the child was brought to the Emergency Room.

At approximately 1200, 3 April 1984, Mr. John Doherty, a nurse at the Erlangen Dispensary [Health Clinic] heard a “commotion” at the emergency entrance to the facility. He then saw appellant enter the building carrying a girl in his arms. Appellant asked for help and was escorted to the treatment room. Upon entering the treatment room, Mr. Doherty noticed a bruise on the right side of the child’s face. Mr. Doherty also noted that, for a child with an injury, the girl and her clothes were “very clean.”4 Upon inquiry by Mr. Doherty concerning what happened to the child, appellant initially stated that she had fallen down the stairs. Appellant then asked whether the girl could be having her “period,” stating she was bleeding from “down [668]*668there” while pointing to his own genital area. He said that three hours had elapsed from the time the girl had fallen until he noticed the blood from “down there” when she went to the bathroom. Appellant told Mr. Doherty that a German doctor had examined the child. During the conversation between appellant and Mr. Doherty, appellant was “at ... times ... real quiet” and, at other times, “babbling, rambling.” Mr. Doherty also characterized appellant’s speech as a “whining-type” mumble. In the treatment room, Mr. Doherty removed a rag, face cloth, or dish towel from between the child’s legs, and replaced the cloth with a sterile pad. he then asked a doctor to examine the girl. During the examination, Mr. Doherty saw what appeared to be a tear in the child’s vaginal area. The child appeared to be “detached,” saying in a rhythmatic cadence, “I fell down the stairs, I fell down the stairs, I fell down the stairs.” This statement would be made when the child was asked a question, but also when she was not asked anything. The child would also “drift off” and not answer questions. Although she whined “a little bit,” the child “didn’t cry a lot.” She was transferred to the hospital in Nuernberg shortly after her mother arrived at the dispensary.

Doctor (Lieutenant Colonel) Lowry Shropshire was on duty at the pediatrics clinic, U.S. Army Hospital, Nuernberg, on 3 April 1984. Shortly after lunch that day, Dr. Shropshire saw a female child being wheeled down the hall. He noticed a “very large bruise” on her face. He saw the child’s name, Michelle Evans, on an x-ray slip, and noticed that appellant was accompanying her. Dr. Shropshire examined the child and discovered that the fresh facial bruise was “quite extensive, going from her cheek up into her hairline, extending from her nose back to her ear.” There was a small amount of dried blood in her nose. The examination was otherwise normal until Dr. Shropshire saw the child’s genitalia, where he found “striking evidence of injury.” There was a severe tear or laceration of her vagina, with fresh blood oozing from the wound, and some clots visible. Dr. Shropshire discontinued his examination at this point and went to talk to appellant in an attempt to obtain a medical history of the girl’s injury preparatory to her hospital admission. Appellant related he had been home sick that morning, and that Michelle and her five-year-old brother had been home with him.

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Cite This Page — Counsel Stack

Bluebook (online)
23 M.J. 665, 1986 CMR LEXIS 3015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-evans-usarmymilrev-1986.