United States v. Salinas

65 M.J. 927, 2008 CCA LEXIS 40, 2008 WL 274021
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedJanuary 29, 2008
DocketNMCCA 200700331
StatusPublished

This text of 65 M.J. 927 (United States v. Salinas) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Salinas, 65 M.J. 927, 2008 CCA LEXIS 40, 2008 WL 274021 (N.M. 2008).

Opinion

[928]*928PUBLISHED OPINION OF THE COURT

O’TOOLE, Judge:

The appellant was convicted by a general court-martial composed of officer and enlisted members, contrary to his pleas, of rape and sodomy of a child under the age of 12 years, in violation of Articles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 925. The appellant was sentenced to 20 years of confinement, reduction to pay grade E-l, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence.

We have considered the record of trial, the appellant’s four assignments of error,1 the Government’s response, the appellant’s reply, and the excellent oral arguments of counsel before the court on 25 October 2007. We conclude that the findings and sentence are correct in law and fact and that no error was committed that was materially prejudicial to the substantial rights of the appellant. See Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Background

“N” is the six-year-old girl identified as the victim in the rape and sodomy charges in this case. At the time of the offenses, she had two sets of parents: her biological mother, Brandy, and her husband, the appellant; and her biological father, and his wife, Amanda. N generally resided with her mother and the appellant, but regularly visited her father and step-mother, as she was doing on 25 February 2005. That day, N was not feeling well, so she watched cartoons during the morning. In the afternoon, her father asked N how she was feeling and she responded that she still felt sick. Her father then asked, ‘Where does it hurt?” She responded, “my front hurts,” or words to that effect, pointing to her genital area. She continued to explain, “Temo pushed it too hard.” “Temo” was a nickname for the appellant. These responses, observed by her father and Amanda, so surprised them that Amanda called her own mother for advice, while N’s father called Brandy, who came to see her child. The child repeated similar statements to Brandy and demonstrated what had happened using a Barbie and a Superman doll. Later that day, the child’s mother and maternal grandfather, a retired hospital corpsman, conducted a physical exam to determine if there was any obvious injury to the child. They found no injury, but, based on the child’s statements, they notified military and civilian authorities.

Two days later, the child was interviewed by a social worker from Child Protective Services. On the third day, N was interviewed by a child forensic specialist and a sexual assault exam was performed at a local hospital. That exam apparently revealed a tear in the child’s hymen.2 Thereafter, upon [929]*929referral of the County Crisis Support Services, N’s parents took her to Dr. Borrego, a licensed family therapist. During treatment by Dr. Borrego beginning 15 March 2005, and continuing over the course of more than a year, N made several incriminating statements about the appellant. Five of these statements were admitted into evidence despite the defense’s hearsay objections.3 Also, over a defense objection that the Government had not provided proper notice, Dr. Borrego testified that her diagnosis of N was post-traumatic stress disorder (PTSD). The admissibility of Dr. Borrego’s diagnosis and N’s various hearsay statements are the subject of appellant’s assigned errors.

The Medical Exception to the Hearsay Rule

Standard of Review

A military judge’s decision to admit evidence is reviewed for abuse of discretion. United States v. Hollis, 57 M.J. 74, 79 (C.A.A.F.2002) (citation omitted). We review the military judge’s findings of fact under the clearly erroneous standard and his conclusions of law, de novo. Id. We should only reverse if the findings of fact are clearly erroneous or if the military judge’s decision is influenced by an erroneous view of the law. Id.

Our superior court recently articulated the foundation that must be established in order to qualify a hearsay statement for admission under the exception provided in Military Rule of Evidence 803(4), Manual for Courts-Martial, United States (2005 ed.):

Statements which are offered as exceptions to hearsay under Mil. R. Evid. 803(4) must satisfy two conditions: first the statements must be made for the purposes of “medical diagnosis or treatment”; and second, the patient must make the statement “with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought.”

United States v. Rodngaez-Rivera, 63 M.J. 372, 381 (C.A.A.F.2006) (citations omitted).

Findings of Fact

Before beginning our analysis of the military judge’s decision, we note that when factual issues are involved in determining a motion, military judges are to state essential findings on the record. Rule for Courts-Martial 905(d), Manual for Courts-Martial, United States (2005 ed.); see United States v. Postle, 20 M.J. 632, 636 (N.M.C.M.R.1985). In this case, the military judge specifically found that the evidence established N, “in fact, had the requisite intent or understanding of why she was seeing Dr. Borrego.” Record at 117. While this single finding is an essential fact pertaining to the second condition required to admit the contested evidence, that fact alone is inadequate to resolve the whole of the issue presented. Ordinarily, such an inadequacy would require a rehearing or return of the record to the military judge for entry of complete essential findings. United States v. Doucet, 43 M.J. 656, 659 (N.M.Ct.Crim.App.1995). However, under the authority of Article 66(c), UCMJ, we have our own fact-finding authority and we choose to exercise it here. Id.

Based on our review of the record of trial, we find the following facts:

1. Dr. Borrego holds a Ph.D. in psychology and is a licensed family psycho-therapist with 28 years of experience. Record at 90-91.
2. After the date of the alleged abuse, N exhibited certain uncharacteristic behavior, including becoming moody, aggressive, emotionally reactive, and fearful. Her grades fell and she had nightmares. Record at 92, 107, 111, 254-79, and 291-317.
[930]*9303. Dr. Borrego told N’s parents that, although accepting their daughter as a patient upon referral from the county, her role was to help the child and not to get into the details of an investigation or anything that had to do with whether someone was going to be convicted or not. Record at 97-99.
4. Dr. Borrego began treating N on 15 March 2005, twenty days after N first reported sexual abuse by the appellant, which she said occurred on or about 23 February 2005. Record at 91, 93.
5. Dr.

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

Related

Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (Supreme Court, 1993)
United States v. Foster
64 M.J. 331 (Court of Appeals for the Armed Forces, 2007)
United States v. Brooks
64 M.J. 325 (Court of Appeals for the Armed Forces, 2007)
United States v. Rodriguez-Rivera
63 M.J. 372 (Court of Appeals for the Armed Forces, 2006)
United States v. Traum
60 M.J. 226 (Court of Appeals for the Armed Forces, 2004)
United States v. Donaldson
58 M.J. 477 (Court of Appeals for the Armed Forces, 2003)
United States v. Hollis
57 M.J. 74 (Court of Appeals for the Armed Forces, 2002)
United States v. Kerr
51 M.J. 401 (Court of Appeals for the Armed Forces, 1999)
United States v. Gray
51 M.J. 1 (Court of Appeals for the Armed Forces, 1999)
United States v. Kelley
45 M.J. 275 (Court of Appeals for the Armed Forces, 1996)
United States v. Haner
49 M.J. 72 (Court of Appeals for the Armed Forces, 1998)
United States v. Doucet
43 M.J. 656 (Navy-Marine Corps Court of Criminal Appeals, 1995)
United States v. Postle
20 M.J. 632 (U.S. Navy-Marine Corps Court of Military Review, 1985)
United States v. Deland
22 M.J. 70 (United States Court of Military Appeals, 1986)
United States v. Bledsoe
26 M.J. 97 (United States Court of Military Appeals, 1988)
United States v. Avila
27 M.J. 62 (United States Court of Military Appeals, 1988)
United States v. Dean
31 M.J. 196 (United States Court of Military Appeals, 1990)
United States v. Edens
31 M.J. 267 (United States Court of Military Appeals, 1990)
United States v. Quigley
35 M.J. 345 (United States Court of Military Appeals, 1992)
United States v. Quigley
40 M.J. 64 (United States Court of Military Appeals, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
65 M.J. 927, 2008 CCA LEXIS 40, 2008 WL 274021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-salinas-nmcca-2008.