United States v. Moore

15 M.J. 354, 1983 CMA LEXIS 20801
CourtUnited States Court of Military Appeals
DecidedMay 16, 1983
DocketNo. 39178/AR; CM 438897
StatusPublished
Cited by17 cases

This text of 15 M.J. 354 (United States v. Moore) 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. Moore, 15 M.J. 354, 1983 CMA LEXIS 20801 (cma 1983).

Opinions

Opinion

COOK, Judge:

Sandra Mae, an 18-year-old civilian female, had sexual intercourse with the accused, a 27-year-old sergeant, in his room at Fort Hood, Texas, on the night of May 22, 1979. According to Sandra Mae, the accused had forced himself upon her; according to the accused, Sandra had previously agreed to “make love” to him and had freely “opened” herself to him. A general court-martial convicted the accused of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920, and imposed a sentence that included a dishonorable discharge and confinement at hard labor for 8 years.

Intermediate reviewing authorities approved the conviction and the sentence, and the accused petitioned this Court for further review. We granted review on two issues. 9 M.J. 251 (1980). The first concerns the correctness of the trial judge’s instructions on reasonable doubt. We have since decided that issue against the accused. United States v. Salley, 9 M.J. 189 (C.M.A. 1980). The second issue concerns the correctness of a ruling by the trial judge allowing into evidence, over defense objection, testimony by three government witnesses qualified as experts. We now decide that issue against the accused. Our determination requires examination not only of the challenged testimony, but of its relationship to the issues in the case. Womack v. United States, 294 F.2d 204 (D.C.Cir. 1961), cert. denied, 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822 (1961). We therefore set out first the evidence independent of that challenged.

I

THE EVIDENCE INDEPENDENT OF THE EXPERT TESTIMONY

Sandra Mae had an unusual background. When very young she had been sexually assaulted, regularly and over an extended period, by her natural father, who had threatened to kill her if she ever reported his actions, and, later, by her step-father. While in high school, two “friends” enticed her into a car and had “sex” with her without her consent. She reported the incident but did not know the outcome of her report. She was then 16 years old and living with her mother in Oregon.

In August 1978, Sandra’s high school boyfriend, Terry, moved from Oregon to Houston, Texas. Some months later, Sandra joined him “to be engaged and then later married.” On her arrival, they were affianced, but did not marry. Shortly thereafter, Terry enlisted in the Army and was sent to Fort Knox, Kentucky. Sandra returned to her mother’s home, where she suffered a miscarriage of an unsuspected pregnancy.

At Terry’s request, Sandra joined him at Fort Knox. While at Fort Knox, she was “the victim of sexual misconduct” by a “friend.” In April 1979, Terry was transferred to Fort Hood. He had been informed by a drill sergeant that he would, at Fort Hood, be “able to draw a casual pay” so he asked Sandra to accompany him. However, on arriving at Fort Hood, he discovered he could not draw such pay. He “tried ... the Red Cross, Emergency Army Relief Fund, . .. everything ... [he] could think of” but “couldn’t get a dime.” He could not “help ... [Sandra] out.”

On the day of her encounter with the accused, Sandra had no regular “place to stay.” Apparently, she had, on occasion, used a car as a place to sleep; the car belonged to a former schoolmate and friend of Terry, who resided in Building CSC 2-58 at Fort Hood. Sandra had visited Terry in [356]*356the early evening. About 7:00 p.m., she left him, walking east on Battalion Avenue. A man in a ear drove “back and forth along the road,” calling out to her. Walking west on the avenue, Private May approached. Sandra greeted him, and on his response she “told him that a man was following” her in a car, “and she was kind of scared.” She asked May to walk with her; he agreed. En route, they “got on the subject of playing pool” and agreed “[t]o play a game.” They went to Helen’s Hide-Away and played pool with a Sergeant Muse, who was in May’s unit, and the female manager of the establishment, who played as Muse’s, partner.

Prom a nearby table, Private First Class Jerry Lewis watched the game. He, too, was a member of May’s unit and was known to him and Muse.

Lewis left before the game ended. When it ended, May and Sandra also left. Outside the building they encountered Lewis, who had apparently been waiting for a bus. All three engaged in a conversation regarding Sandra’s desire to telephone a military police sergeant who she thought would be able to help her obtain a place to stay. The three walked to a nearby public telephone outside a building known as Bowler’s Green.

Accused came on the scene while Sandra, May, and Lewis were at the telephone site. It was then about 10:30 p.m. All four agree the accused represented that CID agents were at the entrance to Bowler’s Green checking the identification cards of women. Learning that Sandra had no car, the accused suggested they try to hide her before the CID might ask. “[Djirected” by the accused, they went around the side of the building, where it was “dark.”1 All also agree that the initial general conversation concerned Sandra’s indecision over whether to continue May’s efforts to locate the police sergeant she knew or to go to Building CSC 2-58 to see the friend whose car she had been using. May testified that, in the course of the conversation, he told Sandra he “had a girlfriend that lived off post” and “she could stay with [her] for the night.” The accused represented that he knew where Building CSC 2-58 was located, and he offered to drive Sandra there. For about ten minutes, he urged her to accept his offer “of help.” As described by May and Lewis, Sandra’s reaction to the accused’s persistence was hesitancy or confusion. “[E]ventually,” said May, she agreed to go to the accused’s barracks. Sandra testified she was “afraid to go,” but felt “reassured because Billy [May] was with” her, and she “needed to get to . .. [her] friend’s barracks.”

In his own testimony, the accused admitted that the group left Bowler’s Green to get keys to a car to drive to Sandra’s friend’s barracks. However, he maintained that May had told him they were going to a party in the “1st Cav” area. En route to his barracks, he concluded the distance to that area was “too far to walk,” so he proposed that the party be held in his room, where he “had some beer.” He also maintained that he then told Sandra, May, and Lewis that he had two roommates, and he asked whether that would “matter.” “Everybody,” he testified, “said, no.” Thereupon, he announced that, if they went to his room, everyone would “ ‘make love’ ”; he indicated to them “exactly what” he meant by those words. May, Lewis, and Sandra denied that the accused made any statement to them about a party. They also denied that they had agreed to “ ‘make love.’ ”

Accused’s barracks was about 150 to 200 years from Bowler’s Green. As they proceeded toward it, the accused, in his words, “grabbed ... [Sandra’s] arm” and “entangle[d]” it with his. As she did not complain or withdraw and had put her other arm around May, the accused “interpreted” her action to mean that “everyone ... was preparing to go and do what we were going to do.” Sandra testified she had “tried to [357]*357pull away,” but the accused had “tightened his grip” and she was unable “to break free.”

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Bluebook (online)
15 M.J. 354, 1983 CMA LEXIS 20801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-moore-cma-1983.