United States v. Williams

34 M.J. 250, 1992 CMA LEXIS 122, 1992 WL 120273
CourtUnited States Court of Military Appeals
DecidedJune 5, 1992
DocketNo. 66,705; NMCM 90 0251
StatusPublished
Cited by1 cases

This text of 34 M.J. 250 (United States v. Williams) 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. Williams, 34 M.J. 250, 1992 CMA LEXIS 122, 1992 WL 120273 (cma 1992).

Opinions

Opinion of the Court

WISS, Judge:

In a contested general court-martial by military judge alone, appellant was convicted of raping his 2-year-old stepdaughter1 and was sentenced to a dishonorable discharge, confinement for 10 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Military Review affirmed without opinion.

We granted appellant’s petition to consider his claim that the evidence is insufficient as a matter of law to sustain his conviction. Specifically, he urges that the evidence is legally insufficient to prove that he ever had sexual intercourse with his stepdaughter. We disagree and affirm. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Harper, 22 MJ 157 (CMA 1986).

Appellant and his wife married in January 1988; his wife had a daughter who, at that time, was about 1 year old. The record is not clear whether the family lived together thereafter and if so, for how long. It is apparent, though, that appellant’s wife and her daughter lived in Arizona with his wife’s mother and the mother’s boyfriend— apart from appellant—from September 1988 until December 23, 1988. On the latter date, appellant and his family were reunited and moved into base housing in California.

On January 20, 1989, appellant and his wife took the little girl to the base emergency room because she had excessive vaginal discharge. There, following examinations and laboratory tests, it was deter[251]*251mined that the girl had gonorrhea. As a precaution, appellant and his wife also were tested for the disease. Appellant’s first test was inclusive because gonorrheal bacteria was not detected inside the white blood cells; however, appellant’s sample was cultured and thereafter did reveal the bacteria.2 His wife, however, never tested positive for the disease, even though they had engaged in a normal pattern of marital sexual intercourse.3

As trial counsel accurately phrased it at the outset of his closing argument: “[T]here are two central questions that have to be answered here today ... Did a rape occur; and was the accused the one who raped the step-daughter.”

Did a rape occur?

On February 10,1989—three weeks after the gonorrhea was discovered—the child was examined by Dr. Herbert A. Giese, a medical doctor who was qualified at trial “as an expert in pediatrics and child sexual abuse.” His examination included use of a culdescope—“an instrument which provides magnification from 5 to 30 power, has binocular vision and a good light source, specifically designed for examining light female genitalia.” Through the culdescope, Dr. Giese was able to obtain two “photographs of the child’s genitalia and particularly the hymenal ring.” Referring to these pictures, Dr. Giese explained in a straightforward way the factors that, together, led him to conclude that the girl had been the victim of vulvar intercourse by the head of a penis.

The “first irregularity” was that “[t]he hymenal membrane ... was sort of floppy and redundant and it tended to stretch very easily.” This feature “can be normal” and is distinctive only when considered with other factors revealed by the exam.

The “second irregularity” was “the bump at the 6 o’clock position.” Although the bump itself may not be significant, the bump in this case “was bound to a vaginal ridge which was on the inside____ [T]his area was inflamed and then scar tissue bound the two together.”

The next irregularity was the diameter of the hymenal ring when “stretch[ed] to a ... relaxed position.” In this position, which offers an opening of the ring “to a maximum amount,” the child’s ring measured 6 millimeters from top to bottom and also from side to side. This contrasted with “the acceptable upper normal limit of normal for children under 5” years of age of 5 millimeters. Again, this factor, “in mind of itself, does not indicate that the child has been traumatized.” Its significance is as one piece of the entire puzzle.

The fourth irregularity addressed two characteristics of the mound that Dr. Giese earlier had referred to as a “bump.” The doctor pointed out “a white linear discoloration in the mound which I believe represents scar tissue.” He continued:

[A]lso there is vascular disruption in this area; there’s vascularity which runs out to it [the mound] and then stops and then there’s vascularity on the other side which seems to come up approximately to it but there’s no cross over of those blood vessels; whereas the rest of the hymen, there is a lacy pattern of blood vessels where [there] is no interruptions.

Dr. Giese explained “the significance of” this evidence as follows:

I think that is a scar in the hymen that occurred because of a tear that has rehealed itself; and the mound and attachment to the vaginal ridge are part of that healing process.

[252]*252He concluded: “She had a hymenal tear which has rehealed; and this occurred because of some form of hymenal penetration.”

Attention then turned to the nature of the object that had penetrated the child. First, the doctor ruled out self-infliction. Even if she had masturbated, which, while “not real common with 2-year olds, it does occur, she would be paying attention up to the superior area where the clitoris is, because that is the sensitive area that induces a pleasural sensation.” (Emphasis added.) It will be recalled that the evidence of a tear was in the lower “6 o’clock” area of the hymenal ring. Additionally, Dr. Giese observed that “[ijnjury to the hymen is painful in children; and, in fact, touching the hymen in some children is an uncomfortable experience.”

The question which next logically followed was: “Could those injuries that you noted have been caused by penetration from a male penis?” Dr. Giese responded:

Yes, they could have but probably not full penetration. Full penetration, I would have expected much more damage and a larger opening. The most common source of partial dilation with a transection is a situation called vulvar intercourse which is when the head of the penis and the tip of the penis is placed in the introitous and pressure put against the area but there’s not full penial intromission. Because of the conical shape of the head of the penis, as that began to press in, this would stretch the hymen until it reached the point that it couldn’t give anymore and then it would tear; and I think that’s what—and the most common place where injuries occur is at the 6 o’clock posterior area.

When asked, then, whether it was his “opinion ... that vulvar intercourse took place,” Dr. Giese answered, “Yes.”

At this point, trial counsel moved along to address the matter of the child having gonorrhea:

Q. If you knew also that the child had had gonorrhea, would that add anything to your opinion as to what caused the injuries?
A.

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Bluebook (online)
34 M.J. 250, 1992 CMA LEXIS 122, 1992 WL 120273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-williams-cma-1992.