United States v. Stroh

46 M.J. 643, 1997 CCA LEXIS 148, 1997 WL 203286
CourtUnited States Air Force Court of Criminal Appeals
DecidedApril 23, 1997
DocketACM 32182
StatusPublished
Cited by3 cases

This text of 46 M.J. 643 (United States v. Stroh) is published on Counsel Stack Legal Research, covering United States Air Force 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. Stroh, 46 M.J. 643, 1997 CCA LEXIS 148, 1997 WL 203286 (afcca 1997).

Opinion

OPINION OF THE COURT

PEARSON, Senior Judge.

Convicted of sexually molesting, raping, and threatening H, a young playmate of his daughter, and indecently exposing his penis to her and other neighborhood children, appellant argues he was prejudiced by (1) improper bolstering of the victim’s credibility, (2) restriction on his right to present a defense, (3) flawed impeachment of his testimony, (4) egregious prosecution argument, and (5) an incompetent defense lawyer. We affirm appellant’s conviction and sentence to a dishonorable discharge, 25 years confinement, and reduction to E-l.

FACTS

In the fall of 1992, Mrs. N noticed a dramatic change in her daughter H’s behavior as she entered second grade. “She was restless in her sleep. She started having nightmares. She was unhappy all the time and cried a lot. [645]*645She was always whining.” Mrs. N attributed H’s problems to a new baby in the family and the death of two grandparents. However, H’s behavior “really, got bad in 1994” when Mrs. N caught her masturbating. According to Mrs. N, H began masturbating “all the time,” wet the bed, had trouble academically, and was antisocial.

With H’s behavior deteriorating, Mrs. N took her to a local mental health clinic for therapy in mid-September 1994. Around Thanksgiving of that year, H began to reveal that appellant had touched her inappropriately about 2 years before when she played at his house.

Ultimately, H revealed a sordid story of sexual abuse at appellant’s hands, and testified about it at trial. She described playing “peek-a-boo” and “hide-and-go-seek” with appellant and other neighborhood children at his house. If they found appellant during a game of “hide-and-go-seek, they had “to give him a hug.” For “peek-a-boo,” “he would flash open his bathrobe and say ‘peek-a-boo, I see you.’ ” Since appellant never wore any clothing under his bathrobe, H and the other children would see his penis “a lot.”

While watching TV one day at appellant’s house “around the end of the first grade and the beginning of the second grade” (1992), appellant told H to stand up and take off her pants and panties. She complied and appellant handcuffed and tied her to a chair. After taping her mouth shut, he fondled and probed her vagina with his fingers. When appellant’s wife came home, appellant took H upstairs to the bedroom, tied her to the bed, and had sexual intercourse with her. He threatened to kill her if she told anyone. According to H, appellant’s wife and daughter were not aware of incident, and she went to the daughter’s bedroom afterward to play. She continued to visit the house to see appellant’s daughter until the end of 1992 or beginning of 1993.

Dr. Cooper, a well-qualified pediatrician with extensive experience in diagnosing and treating child sexual abuse, examined H in December 1994. She found H had a “clearly and unmitigatingly abnormal” hymenal tissue “very characteristic of a tearing injury which may be associated with a penetrating injury.” This penetrating injury was consistent with penile or attempted penile penetration, and would not have resulted from masturbation or some straddling type trauma like riding a bike.

Dr. Cooper also observed that H exhibited common behaviors associated with sexually abused children of the 6 to 11 age group, such as delayed reporting, recurrent nightmares, bed-wetting, low self-esteem, poor school performance, antisocial behavior, and excessive masturbation. Dr. Cooper opined that like most child victims, H had been consistent in certain “core elements” of her report, that is, facts she did not change. According to Dr. Cooper, H was consistent that there was only one “perpetrator” at one place who had exposed himself, used a “bondage modus operandi,” and threatened to kill her.

Finally, H was also not alone in her description of appellant’s fondness for playing children’s games while clad only in a bathrobe. Ten-year-old Jake, another neighborhood playmate, testified that he often played with appellant’s son. Appellant would join in games of “hide-and-go-seek,” exposing his penis when the robe would “fly back.” Jake believed he saw appellant’s penis “everytime [he] went there.”

BOLSTERING OF VICTIM’S CREDIBILITY

Expert Witness

Appellant argues, as he did at trial, that Dr. Cooper became a human lie detector in his case, stating “in no uncertain terms that LH] had been sexually abused consistent with her allegations” and offered inadmissible prior consistent statement evidence. We disagree. First off, we review a military judge’s decision to admit expert testimony under an abuse of discretion standard. United States v. Raya, 45 M.J. 251, 252 (1996). This trial judge was keenly alert to the line in the sand appellate courts have drawn on the admissibility of expert testimony comparing a victim’s behavior to that of an identified class of abuse victims. See United States v. Cacy, 43 M.J. 214 (1995). Not once, but twice, he sua sponte instructed [646]*646the members that they had the responsibility to determine a witness’s credibility and that

[n]o expert witness nor any other witness can testify that the alleged victim’s account of what occurred is true or credible, that the expert believed the alleged victim, or that a sexual encounter occurred. To the extent that you believe that any witness testified or implied that she believed the alleged victim, that a crime occurred, or that the alleged victim is credible, you may not consider this as evidence, that a crime occurred or that the alleged victim is credible.

The military judge’s ruling admitting Dr. Cooper’s testimony, as well as his limiting instruction, hit the bull’s-eye. Dr. Cooper never specifically testified that she believed H was truthful or that appellant committed the offenses charged. Instead, she stayed within the bounds the Court of Appeals for the Armed Forces established for experts in child sexual abuse cases. “An expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; discuss patterns of consistency in the stories of victims and compare those patterns with patterns in the victim’s story; and testify about a child’s ability to separate truth from fantasy.” Cacy, 43 M.J. at 217 (citations omitted). The judge kept Dr. Cooper’s testimony within these limits, even directing Dr. Cooper to refer to “alleged perpetrator” instead of “perpetrator.” Moreover, his instruction required the members to keep the expert’s testimony in its proper context.

Mrs. N

H’s mother, Mrs. N, testified on direct examination as a prosecution witness about H’s nightmares. On cross-examination, defense counsel tried to explore whether-someone else, such as appellant’s son Jonathan, was responsible for the offenses, asking Mrs. H if she recalled telling investigators that H would scream out in her sleep, “stop get off me, it hurts Jonathan.” The judge sustained the prosecutor’s objection to the question, ruling it beyond the scope of direct, but allowed defense counsel to recall Mrs. N in the defense case-in-chief to explore that issue.

As a defense witness, Mrs. N modified her testimony somewhat, stating H would scream “stop, it hurts, get off me” and then say the name of either appellant’s daughter or son. On cross, the prosecutor explored the defense attempt to shift blame to Jonathan, asking Mrs. N if H ever said anyone other than appellant had abused her.

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Cite This Page — Counsel Stack

Bluebook (online)
46 M.J. 643, 1997 CCA LEXIS 148, 1997 WL 203286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stroh-afcca-1997.