United States v. Plott

35 M.J. 512, 1992 CMR LEXIS 618, 1992 WL 173312
CourtU S Air Force Court of Military Review
DecidedJuly 16, 1992
DocketACM 29343
StatusPublished
Cited by1 cases

This text of 35 M.J. 512 (United States v. Plott) 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. Plott, 35 M.J. 512, 1992 CMR LEXIS 618, 1992 WL 173312 (usafctmilrev 1992).

Opinion

OPINION OF THE COURT

RIVES, Judge:

Is an adult male a pedophile if he has sex with a female under the age of 16? In this case, the defense established that appellant was not. Over objection, the military judge [514]*514nonetheless permitted the members to receive substantial prosecution testimony about the poor rehabilitative potential of pedophiles. Finding prejudicial error, we set aside the sentence.

I

Factual Background

Tried by general court-martial composed of officer members, appellant was convicted, despite his pleas, of rape and adultery on divers occasions over a 20-month period and of two specifications (each on divers occasions) of indecent acts on a female under the age of 16. His sentence to a dishonorable discharge, confinement for 25 years, and reduction to E-l was approved by the convening authority.

The offenses involve Angela, a niece of appellant’s wife, who suffered many unpleasant incidents in her young life. While living in Mississippi, Angela was molested by both her grandfather and her mother’s boyfriend. Thereafter, under the protection of a court order, she moved to live with appellant and his wife at Cannon Air Force Base (AFB), New Mexico. She was 9 years old at the time. After a year, she returned to live with her mother. A couple of years later, they moved to the civilian community near Cannon AFB, where appellant was still assigned.

Angela frequently visited her aunt and uncle’s home. The couple lived in a trailer, which was the site of appellant’s sexual misconduct with Angela. She was about 13 years, 8 months old when he began to fondle her. She says she feared him because he was a large man and had a violent temper. She had seen him slap his wife hard and throw various objects at her. She testified that after a few months, appellant indicated a desire for sexual intercourse. Angela said when she resisted his advances, he screamed at her and punched holes in the wall paneling, first with his head and then with his fists. Finally, he committed a forcible act of sexual intercourse. Angela’s mother often sent her to stay at the trailer, and for a time she lived there. Sexual contact between Angela and appellant occurred frequently. Ultimately, she reported the abuse to the police.

When confronted, appellant first denied any sexual misconduct, but he later confessed. He maintained Angela was a willing participant in all of their sexual activities. At trial, the defense offered evidence that Angela had a bad temper, was violent, had made other allegations of rape, and was involved in consensual sex with several others.

Discussion of Pedophilia

In the findings stage of the trial, the defense had a psychiatrist, Dr. Hoyer, testify that appellant suffered from Klinefelter’s Syndrome, a chromosomal disorder that includes “a diminished sexual drive because of the low levels of male hormones.” Hoyer had treated appellant for acute depression; at one point, he ordered appellant hospitalized because he had expressed some “suicidal ideas.”

Appellant’s “passive” and “docile” personality were discussed. Hoyer expressed the opinion that someone with appellant’s “psychological makeup” would be more susceptible to being seduced by a young woman than others would be. While explaining that, Hoyer briefly mentioned pedophilia—but he clearly prefaced his remarks by saying the topic “doesn’t apply to” appellant. Before concluding direct examination, the defense counsel had Hoyer confirm there was “no indication of pedophilia” in appellant’s case. The record shows appellant was an in-patient for mental health evaluations on at least two occasions; even during follow-up outpatient psychotherapy prior to trial, he was never diagnosed as a pedophile.

The trial counsel pursued the subject of pedophilia. In cross-examination, Hoyer stated there was no evidence of a link between Klinefelter’s Syndrome and pedophilia. In response to a number of followup questions in this area, he ultimately speculated that sufferers of Klinefelter’s Syndrome could be “vulnerable” and “more at risk than the average person” to seduction by a young girl. The following exchange occurred:

[515]*515Q: Doctor, would a person who had sex with a 13 year old be considered a pedophilia [sic]?
A: Yes. It’s pedophilia. Let’s put it this way, if it’s pedophilic activity, I would hesitate to say I’d be willing to make that diagnosis just on a onetime occurrence.
Q: Well, is it your understanding that this is a one-time instance of sexual contact between [appellant] and his 13 year old niece?
A: No, but only since the trial has started have I become aware of the fact that it apparently happened more than once. I was merely correcting my initial agreement to your question.

(emphasis added). In context, Hoyer’s “initial agreement” to the question of whether sex with a 13-year-old is a pedophilic act was in the nature of an academic response; Hoyer “corrected” his statement in an effort to clarify that appellant was not a pedophile.

During redirect, Hoyer noted that Dr. Grant, an expert witness for the prosecution, had provided him 13 unsolicited articles about Klinefelter’s Syndrome. Hoyer believed Grant gave him the articles for the transparent purpose of having him discredited during cross-examination. Hoyer was not offended by the tactic, and he said that neither the articles nor any matter discussed in cross-examination had changed his opinion about appellant.

Grant was called as the prosecution’s lone sentencing witness. His credentials were discussed, and he was accepted without objection as an expert in the fields of forensic psychiatry and child sexual abuse. The trial counsel raised the first matter of substance when he asked: “Dr. Grant, let’s talk about pedophilia in general. How difficult is it to treat a pedophile?” Grant answered, “Well, if you believe the numbers, they can’t be treated at all.”

Before another question could be asked, the defense counsel interjected: “I object to this line of questioning. I don’t see any relevance to the issue of pedophilia. There’s been evidence already in the trial, there was no indication of [appellant] being diagnosed as a pedophile.” The trial counsel countered that Dr. Hoyer had “clearly stated” that appellant’s “behavior was indeed pedophilia.” The defense counsel rejoined, “And he came back and clarified what he meant by that. He did not diagnose him as pedophilic.” The military judge ruled: “I’ll let him go into it. Go ahead.” Trial counsel thereafter developed Grant’s testimony on the relative ineffectiveness of attempting to treat pedophiles. He parlayed that information in his sentencing argument, asking for lengthy confinement at least in part because of the expert’s testimony about appellant’s poor “long term prognosis.”

II

Appellant attacks the propriety of the judge’s ruling that permitted Dr. Grant to discuss the treatment of pedophiles. He submits the extensive expert testimony about pedophilia caused him to suffer the stigma of a diagnosis he never received. We agree.

“Relevant evidence” is very broadly defined in the military. See, e.g., United States v. Reece, 25 M.J. 93, 95 (C.M.A. 1987) .

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Related

United States v. Plott
38 M.J. 735 (U S Air Force Court of Military Review, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
35 M.J. 512, 1992 CMR LEXIS 618, 1992 WL 173312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-plott-usafctmilrev-1992.