United States v. Sanchez

65 M.J. 145, 2007 CAAF LEXIS 782, 2007 WL 1805156
CourtCourt of Appeals for the Armed Forces
DecidedJune 21, 2007
Docket06-0617/AR
StatusPublished
Cited by37 cases

This text of 65 M.J. 145 (United States v. Sanchez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sanchez, 65 M.J. 145, 2007 CAAF LEXIS 782, 2007 WL 1805156 (Ark. 2007).

Opinions

Judge RYAN

delivered the opinion of the Court.

In this case we are asked to decide whether the military judge abused her discretion when she denied the motion in limine to exclude testimony from an expert in child sexual abuse that was based in part on findings from a physical examination of the victim, findings which Appellant claims are unreliable. See Military Rule of Evidence (M.R.E.) 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Billings, 61 M.J. 163, 166 (C.A.A.F.2005). We conclude that the military judge’s determination that the expert opinion had a sufficient factual basis and was reliable was not “ ‘manifestly erroneous.’ ” General Electric Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (quoting Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487 (1878)). Therefore, we hold that the military judge did not abuse her discretion.

I. Background

A.

A general court-martial composed of officer and enlisted members convicted Appellant, contrary to his pleas, of rape and forcible sodomy of his eight-year-old stepdaughter, JA, in violation of Articles 120 and 125, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 925 (2000). The sentence adjudged by the court-martial and approved by the convening authority included a dishonorable discharge, confinement for nine years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed. United States v. Sanchez, No. ARMY 20010943 (ACt.Crim.App. Apr. 12, 2006) (unpublished).

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ADMITTING EXPERT TESTIMONY REGARDING THE ALLEGED VICTIM’S MEDICAL EXAMINATION OVER DEFENSE OBJECTION.

B.

JA, Appellant’s eight-year-old stepdaughter, complained to her mother that Appellant sexually molested her over a period of more than two years. She presented details to her mother and to medical professionals regarding the instances of rape and forcible oral and anal sodomy of which Appellant was convicted.

In early January 2001, a few days after the last act of forcible anal sodomy, Ms. Lori Long, a forensic examiner and sexual assault nurse examiner at the Chrisus Santa Rosa Children’s Hospital, examined JA. Ms. Long concluded that JA’s vagina was abnormal, “concerning”1 for abuse, and consistent with the history of sexual abuse she took from JA.

At the end of January 2001, Dr. Nancy Kellogg, the Medical Director of the Alamo Children’s Advocacy Center, reviewed Ms. Long’s conclusions and the patient history taken from JA by Ms. Long, interviewed JA, and conducted her own physical examination and medical evaluation of JA.

At trial, Appellant moved in limine to exclude the testimony of Dr. Kellogg, who was an expert witness for the prosecution, under M.R.E. 702 and Daubert. The defense accepted Dr. Kellogg as an expert in child sexual abuse and did not argue that expert testimony on child sexual abuse was irrelevant to the facts at issue in the case.2 In[147]*147stead, the defense argued that the expert’s testimony was not the product of reliable methodology. Id.

The military judge conducted an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000) hearing, to assess the reliability of this testimony. At the hearing, Dr. Kellogg explained the methodology she used in arriving at her opinion that JA was concerning for sexual abuse. Dr. Kellogg testified that she had conducted a physical examination of JA, taken fluid samples, conducted laboratory tests on those samples, reviewed JA’s medical history, consulted with a professional colleague, and spoken with JA, who made certain comments about the sexual abuse that implicated Appellant. Dr. Kellogg testified that it is standard practice in her field to look at all of these factors together: “the diagnosis in medicine is made on the basis of a constellation of findings.”

Dr. Kellogg explained why, using this methodology, she concluded that JA was concerning for sexual abuse. One of the most important factors was the consistent patient history. Relevant to the instant appeal are three specific medical findings from Dr. Kellogg’s physical examination of JA that she considered: (1) a thickened hymen; (2) a high vaginal white blood cell count; and (3) anal dilation. Dr. Kellogg elaborated on the significance of each of these findings as it related to her conclusion that JA was concerning for sexual abuse.

Dr. Kellogg testified that the hymenal tissue in a prepubertal child should be thin and sheet-like, not thickened. JA’s hymen had focal thickening. Moreover, the vaginal swabs revealed that JA had numerous white blood cells inside of her vagina.

These findings were concerning for sexual abuse because while the hymen does thicken over time due to estrogen as the child matures and sexual development occurs, focal thickening of the sort observed in JA, who was only eight, is not normal and is usually the result of trauma. Trauma includes both irritation and penetration, which are consistent with sexual abuse. Further, in light of JA’s prepubertal state of maturity, a high white blood cell count was unusual. It could be caused by either an infection or irritation. JA did not have an infection. A hymen that was torn or attenuated could account for the presence of white blood cells because the protective shield is less effective in shielding the vagina from bacteria. JA’s hymen did not cover her vaginal opening. The medical findings and patient history were the basis of Dr. Kellogg’s medical assessment that JA’s vagina was concerning for sexual abuse.

Dr. Kellogg next described her examination of JA’s anus while JA was in the knee/ chest position. There was no stool, and both the external and internal sphincters immediately dilated. Dr. Kellogg acknowledged that there were certain other circumstances where anal dilation might be considered normal. But because none of those circumstances existed, the anal dilation was concerning for sexual abuse. Dr. Kellogg admitted that reliance on anal dilation findings to support a conclusion of sexual abuse is relatively controversial in her field.

Dr. Kellogg further explained that her medical findings were congruent with both the patient history that Dr. Kellogg had reviewed and JA’s statements during her examination. A consistent patient history is one of the strongest indicators of sexual abuse.

Dr. Kellogg admitted that no formal studies addressed the error rates for the medical findings she used as part of the basis for her conclusion that JA was concerning for sexual abuse.

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Cite This Page — Counsel Stack

Bluebook (online)
65 M.J. 145, 2007 CAAF LEXIS 782, 2007 WL 1805156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sanchez-armfor-2007.