United States v. Pagel

40 M.J. 771, 1994 CMR LEXIS 257, 1994 WL 482134
CourtU S Air Force Court of Military Review
DecidedAugust 12, 1994
DocketACM 30185
StatusPublished
Cited by15 cases

This text of 40 M.J. 771 (United States v. Pagel) is published on Counsel Stack Legal Research, covering U S Air Force 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. Pagel, 40 M.J. 771, 1994 CMR LEXIS 257, 1994 WL 482134 (usafctmilrev 1994).

Opinion

[774]*774OPINION OF THE COURT

YOUNG, Judge:

Court members convicted appellant of one specification of attempting to commit carnal knowledge with, two specifications of committing sodomy with, and two specifications of committing indecent acts upon, a minor. Articles 80, 125, and 134, UCMJ, 10 U.S.C. §§ 880, 925, and 934 (1988). The court members sentenced appellant to a bad-eonduet discharge, confinement for 8 years, and reduction to E-3. Appellant alleges the military judge made six errors: (1) admitting dysfunctional family profile evidence; (2) excluding evidence of the victim’s prior sexual history (Mil.R.Evid. 412); (3) denying a challenge for cause; (4) refusing to instruct during sentencing on appellant’s lack of adverse disciplinary record; (5) admitting a transcript of an interview with the victim; and (6) allowing Captain Revis to testify in rebuttal. We disagree and affirm.

I. Dysfunctional Family Profile Evidence

A. Facts

In her opening statement, trial counsel told the members that they would hear testimony from two important witnesses. JP, appellant’s 14-year-old daughter, would describe the abuse she suffered at the hands of appellant. Captain Revis, a family advocacy officer and clinical child psychologist, would testify about the “dynamics of an incestuous child sexual abuse situation;” his evaluation of, and counseling with, JP; and his opinion that the information he had learned about the case was “consistent with a case of child abuse.”

In his opening statement, the civilian defense counsel stated that the defense would show that JP was not telling the truth and that, because of the inconsistent stories she had told about the allegations, she should not be believed.

JP testified that, while her mother was at work, appellant licked her vagina, forced her to suck his penis, attempted to have inter-' course with her, and touched her in indecent ways. On cross-examination, the defense tried to discredit JP and show that her actions were inconsistent with what one would expect of a victim of sexual abuse. The defense noted her failure to promptly report the abuse to authorities; her failure to tell law enforcement agents, without suggestive promptings, specifically what appellant had done to her; her making a special birthday card for her father after she made the allegations against him; and her faking fellatio with a boyfriend, despite her description of the sodomy with her father as nasty and scary.

After Captain Revis was qualified as an expert in the diagnosis and treatment of child sexual abuse, the trial counsel asked him to describe the common characteristics of a family in which sex abuse occurred. Appellant initially objected that Captain Revis was testifying beyond his area of expertise, but withdrew it after the witness clarified his qualifications. Captain Revis testified that such a family would be dysfunctional in many ways: (1) children assume adult roles; (2) the victim has a strained relationship with the parent of the same gender; (3) the father is usually the perpetrator; (4) the mother is impassive, ineffectual, and emotionally dependent; (5) the perpetrator fails to appropriately discipline his children; (6) the perpetrator is a substance abuser; and (7) the husband and wife have sexual difficulties. Captain Revis listed all of the reports and information he had examined about the family and its individual members.

Appellant next objected to Captain Revis testifying about specifics of appellant’s family life that matched the characteristics of a family in which child abuse might occur, and from which court members might infer that it did occur. Originally framed as an objection to specifies and then a motion for a limiting instruction, defense counsel later suggested it was more of a relevance objection under Mil.R.Evid. 403. The military judge offered appellant an out-of-court hearing on the issue. Appellant did not see the necessity for such a hearing and accepted the military judge’s offer of a limiting instruction. Trial counsel then stated, in front of the court members, that she intended to ask Captain Revis if he found any of these common characteristics in appellant’s family situation from which an inference of child sexual [775]*775abuse could be drawn. The defense made no further objection. The military judge agreed to give a limiting instruction at an appropriate time, but overruled the defense objections. Captain Revis then testified to his findings: (1) the members of appellant’s family exhibited dysfunctional relationships; (2) JP’s brothers had disciplinary problems; (3) appellant and his wife had marital problems; and (4) appellant had a history of alcohol abuse.

Without objection, Captain Revis testified to these common characteristics that victims of incestuous relationships exhibit: (1) feelings of guilt and shame; (2) feeling like she is dirty; (3) poor peer relationships; (4) feelings of failure; (5) feelings of hopelessness; and, (6) acting out — becoming a disciplinary problem. Captain Revis found JP’s behavior manifested several of these characteristics. Based on everything he knew about the case, Captain Revis testified that it was consistent with child sexual abuse having occurred. He further stated that if someone were making up a story of child sexual abuse, he would expect to find that the individual had a personality disorder or at least exhibit symptoms of such a disorder. He had tested JP and found she did not have any such disorder.

During the questioning, a court member asked what, if any, evidence, other than the personality test, did Captain Revis consider in determining whether the victim was telling the truth. The military judge instructed the members sua sponte that Captain Revis was not testifying as to whether JP was telling the truth, but merely “whether family background was consistent with her having been abused.” No other limiting instruction was either asked for by the defense or given by the military judge.

In findings argument, trial counsel told the members that Captain Revis’ testimony corroborated JP’s allegations of sexual abuse and “her description of the abuse Dr Revis told you is consistent with sexual abuse.” Trial counsel further argued:

What you saw, members of the court, as much as possible in a three day time period, was portrayed a classic textbook example of a dysfunctional family where the mother had suffered previous abuse, where there is alcohol abuse involved, where there is trouble — disciplinary acting out problems with the children, and all the other things that Dr Revis describe (sic) to you that were common characteristics of a situation where incest is likely to occur or where it commonly occurs.
Now, of course, Dr Revis isn’t telling you that because of these factors that are common to an incestuous situation were present, some of the factors were present in this particular, that that means the abuse occurred or didn’t occur. Obviously, the prosecution didn’t present it in that light. So, what it is is it is corroboration that in fact many of the factors that make a family vulnerable to this type of a situation are present in the accused situation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Bavender
Air Force Court of Criminal Appeals, 2019
United States v. Blough
57 M.J. 528 (Air Force Court of Criminal Appeals, 2002)
United States v. Miller
56 M.J. 764 (Air Force Court of Criminal Appeals, 2002)
United States v. Hopkins
55 M.J. 546 (Air Force Court of Criminal Appeals, 2001)
United States v. Aaron
54 M.J. 538 (Air Force Court of Criminal Appeals, 2000)
United States v. Bridges
52 M.J. 795 (Air Force Court of Criminal Appeals, 2000)
United States v. Stroh
46 M.J. 643 (Air Force Court of Criminal Appeals, 1997)
United States v. Pedrazoli
45 M.J. 567 (Air Force Court of Criminal Appeals, 1997)
United States v. Pagel
45 M.J. 64 (Court of Appeals for the Armed Forces, 1996)
United States v. Willis
43 M.J. 889 (Air Force Court of Criminal Appeals, 1996)
United States v. Lloyd
43 M.J. 886 (Air Force Court of Criminal Appeals, 1995)
United States v. Barrow
42 M.J. 655 (Air Force Court of Criminal Appeals, 1995)
United States v. Oliver
43 M.J. 668 (Air Force Court of Criminal Appeals, 1995)
United States v. Robinson
43 M.J. 501 (Air Force Court of Criminal Appeals, 1995)
United States v. Conway
40 M.J. 859 (U S Air Force Court of Military Review, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
40 M.J. 771, 1994 CMR LEXIS 257, 1994 WL 482134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pagel-usafctmilrev-1994.