United States v. Toledo

25 M.J. 270, 1987 CMA LEXIS 3994, 1987 WL 4367
CourtUnited States Court of Military Appeals
DecidedDecember 14, 1987
DocketNo. 54,817; NMCM 85 3868
StatusPublished
Cited by22 cases

This text of 25 M.J. 270 (United States v. Toledo) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Toledo, 25 M.J. 270, 1987 CMA LEXIS 3994, 1987 WL 4367 (cma 1987).

Opinion

Opinion of the Court

COX, Judge:

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of one specification of rape, five specifications of indecent assault, and one specification of committing indecent acts on a female under the age of 16, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 30 years, and total forfeitures. The convening authority suspended confinement in excess of 20 years and otherwise approved the sentence. The Court of Military Review was unpersuaded beyond a reasonable doubt that penetration had occurred and reduced the rape specification to committing indecent acts upon a child under the age of 16, a violation of Article 134. Upon reassessment of the sentence, the court reduced the period of confinement to 15 years but otherwise affirmed the sentence as adjudged.

We granted review of the following issues:

I
WHETHER THE MILITARY JUDGE ERRED BY AUTHORIZING THE PROSECUTION TO PRESENT AN EXPERT WITNESS TO OFFER HIS OPINION ON APPELLANT’S TRUTH AND VERACITY.
II
WHETHER THE MILITARY JUDGE ERRED BY AUTHORIZING THE TESTIMONY OF AN EXPERT WITNESS CONCERNING A CHILD-ABUSE VICTIM’S CREDIBILITY.
III
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING TESTIMONY OF A CLINICAL PSYCHOLOGIST IN VIOLATION OF ARTICLE 31(b)[, UCMJ, 10 U.S.C. § 831(b)].

Finding no error to the substantial prejudice of appellant, we affirm. Art. 59(a), UCMJ, 10 U.S.C. § 859(a).

Of the granted issues, only a portion of the first issue requires substantial discussion. In order to resolve it and the other issues, however, a detailed description of the evidence is necessary.

When appellant first arrived for duty in Misawa, Japan, he was befriended by Petty Officer Amardo Serrano. As Serrano testified: “He [appellant] was new in the command. He didn’t know anybody. And he was — he felt lost, so I was just trying to make him feel at home.” Appellant accepted the invitation and became a frequent visitor to the Serrano home, where he often played with the three young Serrano children. One of the reasons the Serranos let appellant play with their children so much was that appellant often told them how much he missed his adopted younger sister who was back home.

On the evening of November 6, 1984, appellant was at the Serrano home with Petty Officer Serrano and the children. Mrs. Serrano had gone to a baby shower. Serrano was involved in connecting some video equipment when it was time for the children to bathe and get ready for bed. Appellant insisted on going with them and, even though Serrano “was a little uncomfortable” about it, he let him. Periodically, Serrano would check in to make sure everything was all right.

After the bath, appellant commenced reading bedtime stories to the children in [272]*272their rooms. Following one unusually long period of silence, Serrano again went upstairs to see what was happening. Peering into his 5-year-old daughter’s room, he discovered a sickening scene. The child was sitting at the edge of her bed, leaning backward, with her panties pulled down. Appellant stood directly in front of her “with his pants open.” At trial, Serrano testified:

Toledo ... turned away, and ... walked towards the comer. He had his hands in front of him. I did not see his penis, but I saw a pubic hair, I saw his pubic hair. ... [Toledo] quickly turned away and started to zip his pants. I said, “What the hell is going on here?”. I yelled. And my daughter answered, “Toledo was only scratching.” ... She stood there ... [with] a terrified look on her face, and she was shaking.

Serrano further testified as follows:

Q. Will you describe for the members what was he doing in the comer, could you observe him from the comer?
A. He was fixing his pants, trying to fix his pants, put on his belt. I — I stood there after I — I asked what was going on, and my daughter said he was only scratching himself, I just stood there for a few seconds, and I couldn’t believe what was going on. He was — he just had turned, and he was over there fixing his pants, he was just buckling them up, zipping them up and everything.

In response to Serrano’s yell:

He [appellant] didn’t say anything. He just turned away with his head down, that’s when he started fixing his pants. Then I just — I yelled — I yelled out again, I said, “Get the hell out of my house. I never want to see you near my kids. I never want to see your face again.” And Toledo walked out of the door, he was still fixing his pants.
Q. Did he — did he say anything to you?
A. He never said a word. He never even looked at me. There was never any eye contact.
Q. Could you describe his appearance at the time he left the room?
A. He was — he was sweating profusely. He was soaked, he was drenched in sweat. And he just slowly walked out of the — out of the room.
Q. To the best of your memory, what — what was the temperature, what were the climatic conditions—
A. Oh, it was cold that night, it was really cold that night. It was in November. It was pretty cold.

As appellant was leaving, Serrano instructed him to report to his barracks, and he informed him that he would be calling the Shore Patrol. Rather than walking in the direction of the barracks, appellant headed straight for the main gate. Several hours later, he was apprehended off base. His clothing was seized; laboratory analysis revealed the presence of a large semen stain on his underpants.

Approximately 3 months later, the victim testified at an Article 32, UCMJ, 10 U.S.C § 832, session. Her testimony was videotaped, and a verbatim transcript was prepared. At trial, the defense agreed that the victim was unavailable to testify and that there had been an adequate opportunity to cross-examine her at the Article 32 hearing. Further, the defense did not wish to have her testify in person. Accordingly, the videotape recording of the victim’s pri- or testimony was played for the court members pursuant to the former-testimony exception to the hearsay rule, Mil.R.Evid. 804(b)(1), Manual for Courts-Martial, United States, 1984.

In her testimony, the girl described the events of the evening, including her mother’s departure for the baby shower, the bath in which appellant participated, and the bedtime stories. She also stated that on two occasions that evening appellant put his “pee pee” “[o]n ...

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Cite This Page — Counsel Stack

Bluebook (online)
25 M.J. 270, 1987 CMA LEXIS 3994, 1987 WL 4367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-toledo-cma-1987.