United States v. Hurst

29 M.J. 477, 1990 CMA LEXIS 16, 1990 WL 18754
CourtUnited States Court of Military Appeals
DecidedMarch 19, 1990
DocketNo. 62,739; ACM 26785
StatusPublished
Cited by13 cases

This text of 29 M.J. 477 (United States v. Hurst) 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. Hurst, 29 M.J. 477, 1990 CMA LEXIS 16, 1990 WL 18754 (cma 1990).

Opinion

Opinion of the Court

SULLIVAN, Judge:

In August 1987 appellant was tried by a general court-martial composed of members at Hickam Air Force Base, Hawaii. Contrary to his pleas, he was found guilty of committing sodomy on divers occasions upon his stepdaughter, a female under the age of 16, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925. He was sentenced to dismissal. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated January 6, 1989.

This Court granted review of the following issues:

I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY NOT ALLOWING THE DEFENSE TO CROSS-EXAMINE THE ALLEGED VICTIM ON SPECIFIC PAST SEXUAL BEHAVIOR.
II
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY NOT ALLOWING APPELLANT TO PRESENT EVIDENCE OF HIS GOOD MILITARY CHARACTER IN THE FORM OF HIS OERS [OFFICER EFFECTIVENESS REPORTS],
III
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY RULING THAT HEARSAY TESTIMONY WAS A PRIOR CONSISTENT STATEMENT.

We hold that no prejudicial error occurred when the military judge prevented appellant from introducing his OERS on the merits of this case. See United States v. Wilson, 28 MJ 48 (CMA 1989); United States v. Weeks 20 MJ 22, 25 (CMA 1985). Otherwise, we find no error of any kind in the challenged rulings of the military judge.

The evidence of record shows that in June 1986, appellant’s wife went to visit her mother in Florida, leaving her husband at home in Hawaii. He later executed a sworn statement and admitted that during his wife’s absence, he awoke from an alcohol-induced sleep to discover himself basically engaged in mutual oral sodomy with his 15-year-old stepdaughter, T. He stated that when he realized that his sex partner was not his wife, he “pushed her off” and sent the stepdaughter to another room. He further stated that his stepdaughter attempted to repeat this conduct shortly before his wife was scheduled to return from Florida.

On September 19,1986, T was discovered unconscious on the bathroom floor of her home. At the hospital, she was discovered to be heavily intoxicated with a blood alcohol level of .1937. While in the Emergency Room, with both parents present, T stated, “I hate you, Daddy, I hate Daddy because while Mom was gone this summer, you molested me.” Eventually, appellant admitted to his wife that he had engaged in the acts of sodomy noted earlier.

At trial, defense counsel indicated that he wished to explore T’s sexual history. He specifically wanted to question her about her first sexual experience with RT when she was 14 years old; her regular sexual conduct with her current boyfriend GN; her attempt to obtain birth control pills; and her attempted use of appellant to divert her mother from the house so that [479]*479she could engage in sexual intercourse with GN. During the subsequent session under Article 39(a), UCMJ, 10 USC § 839(a), defense counsel also elicited information concerning T’s sexual encounters with her adopted brother JH and her half-brother SC.

The defense averred this evidence to be relevant for the following reasons:

Your Honor, we have two purposes for this. One goes to the motive to fabricate and that is that [T] had either actually-been sexually molested many times in the past or she has made up a lot of this information in order to get what [T] wants. In other words, later on the evidence will establish that [T] got [JH] out of the house because — after she made these allegations against him. And further testimony from witnesses will show that there- were other allegations of molestation even earlier in her life. It also will — if we ever should happen to get to a sentencing phase — it will become obvious that we could use it at that point. In addition — and it also, well it could go on the merits if the government then brings in a social worker that they have that is going to talk about the rape-trauma syndrome. We could show that [T] has had other instances of sexual behavior that could have given her this rape-trauma syndrome. "

After further development of the concerns raised above, the military judge rendered, in relevant part, the following ruling:

The offenses alleged involving [T] fall within the scope envisioned by Military Rule of Evidence 412, [Manual for Courts-Martial, United States, 1984] and therefore its provisions concerning the admissibility of evidence are applicable. The evidence of past specific instances of sexual behavior between the alleged victim, [T] and her stepbrothers occurring in the late 1970s and early 1980s is too remote from this incident to have sufficient probative value to outweigh the danger of unfair prejudice. The evidence of past specific instances of sexual behavior between the alleged victim, [T], and [RT], has been shown to have only minimal relevance and its probative value is far outweighed by the danger of unfair prejudice. Now the evidence of past specific instances of sexual behavior between the alleged victim, [T], and [GN] are not sufficiently relevant to outweigh the danger of unfair prejudice.
Now in discussion, I would like to state that the defense has proffered this evidence to show, 1, knowledge of the alleged victim of certain sexual acts and, 2, the victim’s motive to fabricate because of the accused’s attempts to stop her affair with [GN]. Now, with that in mind, the specific instances of sexual behavior have little relevance to the purported defense’s purposes and there is a clear danger of circumventing Military Rule of Evidence 412 and allowing unfair prejudicial evidence before the court. With this in mind, I make the following rulings:
The alleged victim, [T], will not be cross-examined on any specific instances of past sexual behavior as the evidence is inadmissible under Military Rule of Evidence 412. Now that said, and in the interest of fairness to all parties, I will allow the defense to raise the following issues with the alleged victim:
First, generally, had she had sex before the alleged misconduct in the charges? If yes, since what period of time and how often?
Secondly, does she know what oral sex is? And, if yes, had she engaged in oral sex before the alleged misconduct and how often?
And finally, was she having an affair with [GN]? And if yes, what if anything did the accused do to break it up and her reactions to this?

Also of import in this trial, the military judge rendered the following ruling on a different matter:

As for the Government’s motion in limine concerning the offer by the defense of good military character through the ac[480]*480cused’s officer effectiveness reports, the court finds that the charges as brought before this court do not in any way bring into question the accused’s military character; that therefore evidence of good military character would not be pertinent to a violation of Article 125 of the Uniform Code of Military Justice or Article 134, the general offense Article under the Uniform Code of Military Justice.

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Cite This Page — Counsel Stack

Bluebook (online)
29 M.J. 477, 1990 CMA LEXIS 16, 1990 WL 18754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hurst-cma-1990.