United States v. McClour ( 2016 )


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  •                 UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
    UNITED STATES
    v.
    Senior Airman TRENTLEE D. MCCLOUR
    United States Air Force
    ACM 38704
    11 February 2016
    Sentence adjudged 3 July 2014 by GCM convened at Joint Base Pearl
    Harbor-Hickam, Hawaii. Military Judge: Ira Perkins.
    Approved Sentence: Bad-conduct discharge, confinement for 180 days,
    forfeiture of all pay and allowances, and reduction to E-1.
    Appellate Counsel for Appellant: Captain Annie W. Morgan.
    Appellate Counsel for the United States: Major Mary Ellen Payne and
    Gerald R. Bruce, Esquire.
    Before
    TELLER, SANTORO, and ZIMMERMAN
    Appellate Military Judges
    OPINION OF THE COURT
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
    under AFCCA Rule of Practice and Procedure 18.4.
    SANTORO, Judge:
    Officer and enlisted members sitting as a general court-martial convicted
    Appellant, contrary to his plea, of abusive sexual contact in violation of Article 120,
    UCMJ, 
    10 U.S.C. § 920.1
     The adjudged and approved sentence was a bad-conduct
    discharge, confinement for 180 days, total forfeitures, and reduction to E-1. Appellant
    asserts: (1) the evidence is legally and factually insufficient to sustain his conviction, (2)
    the military judge erred by denying a challenge for cause, (3) the military judge erred by
    1
    Appellant was acquitted of raping the same victim on the same occasion.
    not providing appropriate relief after a witness offered what Appellant contends was
    “human lie detector” testimony, and (4) the military judge erred by instructing the
    members that they must enter a finding of guilty if the government proved its case
    beyond a reasonable doubt. We disagree and affirm.
    Background
    The victim’s brother, stationed with Appellant at Kunsan AB, Korea, introduced
    him “virtually” to the victim, Airman First Class (A1C) BS, while she was assigned to
    Joint Base Pearl Harbor-Hickam, Hawaii. Appellant and the victim spoke online and on
    the telephone over the following several months in anticipation of Appellant’s upcoming
    reassignment to Hickam.
    Appellant arrived at Hickam in March 2013. The friendship continued,
    culminating several weeks later in one occasion of consensual sexual intercourse.
    Knowing Appellant had a girlfriend, the victim told him that she did not want to engage
    in further intimate relations but wanted to remain friends and even entertained the idea of
    residing with Appellant and his roommate.
    On 6 May 2013 around 2200 or 2230 hours, the victim and another friend, Senior
    Airman (SrA) AJ, drove to Appellant’s residence. Appellant, his roommate, SrA AJ, and
    the victim ate pizza; the victim studied for an upcoming military examination; and one or
    more of the others settled on the couch to watch television and play video games. At
    some point later in the evening, the victim also relocated to the couch. The three other
    Airmen consumed varying amounts of alcohol, but the victim did not drink.
    The victim testified that she lay on the couch and pulled a blanket over her.
    Appellant approached her and told her she should sleep in his room. She declined, telling
    him she did not want to go to his room because the last time she was there they ended up
    having intercourse. He suggested once or twice more that she sleep in his bed; she
    declined each time.
    She fell asleep but was awakened to Appellant and his roommate’s carrying her
    into Appellant’s bedroom. She squirmed, trying to get them to put her down, while
    simultaneously laughing and joking with them. They laid her on Appellant’s bed and his
    roommate left the room. Appellant remained.
    A1C BS got up to leave the room, but Appellant grabbed her by the waist and
    pulled her back, shut the door, and turned off the light. She asked him what he was
    doing, and he told her he was going to have sex with her, then grabbed her waist, bent her
    over, and pulled her pants and underwear down.
    2                                   ACM 38704
    She froze and started to cry. He penetrated her several times in multiple positions
    and wrapped his arm around her throat. To create lubrication, Appellant spit on his hand
    several times and touched his penis.
    The victim told Appellant that he was hurting her and she needed to go to the
    bathroom. He did not stop but responded, “[B]ut baby, don’t you like it? I can hear you
    moan.” At this point, she pushed him away, got up off the bed, went into the bathroom,
    and shut the door behind her. Appellant opened the door and said he wanted to check on
    her.
    A1C BS walked out of the bathroom, picked up her         pants and underwear, and
    began to get dressed. Appellant pushed her against the bed      and said, “[W]hat are you
    doing? I’m not done yet.” Looking at her clothing, he said,     “[T]his is our underwear,”
    then placed the victim’s hands on his penis, saying, “[T]his    is ours too.” She replied,
    “[N]o, that’s you and your girlfriend’s.”
    The victim told Appellant she was going to get a drink of water and left the
    bedroom. He fell asleep on the bed. She went to the living room, spoke to SrA AJ, went
    outside and called her supervisor—but did not talk about what had just occurred—and
    then she and SrA AJ left Appellant’s house. On the drive home, the victim told SrA AJ
    that Appellant had non-consensual sex with her.
    Additional facts necessary to resolve the assignments of error are included below.
    Legal and Factual Sufficiency
    Appellant’s attack on the sufficiency of his conviction is four-fold. He argues that
    (1) SrA BS was not credible; (2) the Government failed to establish that sexual contact
    occurred; (3) the Government failed to prove lack of consent and disprove a reasonable
    mistake of fact defense; and (4) even if the alleged contact occurred, the Government
    failed to prove that it was done with the intent to gratify sexual desires.
    This court reviews issues of legal and factual sufficiency de novo. United States v.
    Washington, 
    57 M.J. 394
    , 399 (C.A.A.F. 2002). “The test for legal sufficiency is
    ‘whether, considering the evidence in the light most favorable to the prosecution, a
    reasonable factfinder could have found all the essential elements beyond a reasonable
    doubt.’” United States v. Humpherys, 
    57 M.J. 83
    , 94 (C.A.A.F. 2002) (quoting United
    States v. Turner, 
    25 M.J. 324
    , 324 (C.M.A. 1987)). In applying this test, “we are bound
    to draw every reasonable inference from the evidence of record in favor of the
    prosecution.” United States v. Barner, 
    56 M.J. 131
    , 134 (C.A.A.F. 2001); see also
    United States v. McGinty, 
    38 M.J. 131
    , 132 (C.M.A. 1993).
    3                                    ACM 38704
    The test for factual sufficiency is “whether, after weighing the evidence in the
    record of trial and making allowances for not having personally observed the witnesses,
    [we are] convinced of [Appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at
    325. In conducting this unique appellate role, we take “a fresh, impartial look at the
    evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to
    “make [our] own independent determination as to whether the evidence constitutes proof
    of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 399. The
    term reasonable doubt, however, does not mean that the evidence must be free from
    conflict. United States v. Lips, 
    22 M.J. 679
    , 684 (A.F.C.M.R. 1986). Our assessment of
    legal and factual sufficiency is limited to the evidence produced at trial. United States v.
    Dykes, 
    38 M.J. 270
    , 272 (C.M.A. 1993).
    The elements of abusive sexual contact in this case are:
    (1) At or near Honolulu, Hawaii, on or about 7 May 2013, Appellant
    committed sexual contact upon A1C BS, to wit: causing A1C BS to
    directly touch his penis;
    (2) That Appellant did so by causing bodily harm to A1C BS, to wit:
    grabbing her hands and placing them on his penis;
    (3) That Appellant did so with the intent to gratify his sexual desires; and
    (4) That Appellant did so without the consent of A1C BS.
    While the members may have perceived a conflict in the evidence with respect to
    whether A1C BS consented to the initial interaction in the bedroom, or if she did not,
    whether Appellant reasonably believed that she did, we discern no meaningful conflict in
    the evidence with regard to the specification of which Appellant was convicted. At the
    time Appellant caused A1C BS to touch his penis, the sexual intercourse had concluded
    and A1C BS had retreated to the bathroom. Her reaction to his subsequent contact with
    her—both according to her testimony and the additional evidence introduced on this
    point—is consistent with one who had been assaulted.
    We are similarly unpersuaded by Appellant’s remaining arguments. A1C BS
    testified that the contact occurred. Other evidence in the record supports her testimony
    on this point. There is ample evidence to support the members’ conclusion that
    Appellant did not reasonably believe A1C BS consented to this contact. Finally, we find
    no merit in Appellant’s argument that his intent was not to gratify his sexual desires
    because his penis was flaccid at the time and he made the self-serving statement that he
    was “joking around.”
    4                                       ACM 38704
    We have considered the evidence in the light most favorable to the prosecution.
    We have also made allowances for not having personally observed the witnesses. Having
    paid particular attention to the matters raised by Appellant, we find the evidence legally
    sufficient to support his conviction for abusive sexual contact. Moreover we are,
    ourselves, convinced of his guilt beyond a reasonable doubt.
    Denial of Challenge for Cause
    Trial defense counsel challenged Senior Master Sergeant (SMSgt) SG for cause,
    arguing that he was impliedly biased because his wife had been sexually assaulted by her
    brother 15 years earlier and because he stated, in response to a question, that his
    takeaway from Sexual Assault Prevention and Response (SAPR) training was, “[W]e
    always listen to the victim. But, I mean, due process is due process.”
    The military judge denied the challenge for cause, finding that the assault of
    SMSgt SG’s wife was remote in time and under facts and circumstances different than
    those in Appellant’s case. The military judge also noted that SMSgt SG was not a
    facilitator of SAPR training (unlike another member whom the military judge did excuse
    for cause), and indicated his agreement with the trial counsel’s statement that the context
    of SMSgt SG’s comment about “always listen[ing] to the victim” meant that he was
    trained to listen to alleged victims, not automatically believe them.
    Appellant elected not to exercise his peremptory challenge against any member of
    the panel.
    Appellant has waived appellate review of this issue. Rule for Courts-Martial
    (R.C.M.) 912(f)(4) controls this very situation: “When a challenge for cause has been
    denied . . . failure by a challenging party to exercise a peremptory challenge against any
    member shall constitute waiver of further consideration of the challenge upon later
    review.” See also United States v. Medina, 
    68 M.J. 587
    , 592 (N.M. Ct. Crim. App. 2009)
    (citing R.C.M. 912(f)(4)).
    Even without waiver, we find the military judge did not err in denying the
    challenge for cause. Reviewing for actual bias, implied bias, and applying the liberal
    grant mandate, there is nothing about SMSgt SG’s answers in voir dire to indicate that
    Appellant received anything less than a panel composed of fair and impartial members.
    See United States v. Wiesen, 
    56 M.J. 172
    , 174 (C.A.A.F. 2001).
    “Human Lie Detector” Testimony
    The victim’s direct and cross-examinations addressed aspects of her in-court
    testimony that differed in certain respects from her out-of-court statements to friends and
    investigators. During its case in chief, the defense offered expert testimony to establish
    5                                   ACM 38704
    that A1C BS had been diagnosed with post-traumatic stress disorder. The Government
    rebutted portions of this testimony by calling its own expert forensic psychologist,
    Colonel PC. After establishing his qualifications as an expert, the following dialog
    ensued:
    Q.     Now, Colonel [PC], in your opinion, can Post-
    Traumatic Stress Disorder, maybe we’ll just use PTSD
    from now on, can that help explain the memory loss
    that Airman [BS] has described as part of this trial?
    A.     I want to be clear, I have not evaluated her, neither has
    [the defense expert]. Clinical evaluation[] is the only
    way to get into the specific weeds on her memory. But
    Post-Traumatic Stress Disorder, to me, given all the
    clinical data I have reviewed in her medical records,
    i[t] absolutely accounts for her memory loss.
    Q.     So, can you explain how it might account for memory
    loss?
    A.     So, if we go to that criteria, where the inability to
    recall key aspects of a trauma, is part of PTSD. And
    again, I emphasize, this is validated through the theory,
    robust research, and clinical application. But in this
    case, there’s an aspect in her testimony where she tried
    to push out some thoughts. And the reality is, I don’t
    know how well she pushed them out or not. I’ve not
    done the clinical assessment, but what I do know is
    this. This is not the first time I’ve heard about patients
    trying to get thoughts out, particularly thoughts related
    to trauma that are painful, either psychological or
    maybe even physically. But there is an absolute
    attempt to push these thoughts out of their
    consciousness so that they’re not painful. I’ve seen
    this again, and again, and again, throughout the years.
    I do believe in her testimony, and again, I have not
    assessed her. But I would absolutely want clarity on
    what she meant by the way she described it, that she
    pushed out the memory of being choked and that’s
    why she didn’t recall it during her—
    6                                    ACM 38704
    Trial defense counsel objected, citing the prohibition against offering human lie detector
    testimony, and the military judge immediately convened an Article 39(a), UCMJ, 
    10 U.S.C. § 839
    (a) session.
    Outside the members’ presence, the military judge asked Colonel PC what he
    meant by the statement, “I do believe her testimony.” Colonel PC responded that he
    “grossly misspoke,” and that he intended to say that there were two parts to what he was
    about to say next: “Number one, so, the inability to recall key aspects of a traumatic
    event, it’s within the diagnostic criteria of PTSD; second, to get clarity. The only way to
    get clarity on that challenge is to do a clinical assessment. And that’s it, sir.”
    Defense counsel then sought three specific forms of relief: that the military judge
    “strike” Colonel PC’s testimony in its entirety, that his curriculum vitae (CV) be
    withdrawn from evidence, and that he not be allowed to testify further. The military
    judge granted the defense request to “strike” the testimony at issue but declined to
    prohibit the members from considering Colonel PC’s CV. Although the military judge
    did not grant the request to prohibit Colonel PC from testifying further, he did restrict
    Colonel PC’s subsequent testimony to two issues: whether he believed there was PTSD
    involved in the case and, if so, what impact that would have had on the victim’s memory.
    Trial defense counsel then made a motion for a mistrial, which was denied.
    When the members returned, the military judge gave the following instruction:
    Members, during the direct examination, the expert had made
    a statement, I do believe in her testimony. I’m asking that
    that question and that response be stricken because an expert
    witness cannot testify to the alleged victim’s account of what
    occurred, whether it’s true or not true. They can’t—the
    expert can’t believe or not believe the alleged victim’s
    account of something. They’re not allowed to go into that.
    . . . You’re not to consider that, at all, in terms of whether
    this witness does or does not believe the victim.
    Prior to deliberations, the military judge gave the following instruction:
    Only you, the members of the court, determine the credibility
    of the witnesses and what the facts of this case are. No expert
    witness can testify that the alleged victim’s account of what
    occurred is true or credible, or not credible, or what the expert
    believes or does not believe the alleged victim or that a sexual
    encounter did or did not occur. To the extent that you
    believed that an expert testified or implied that he does or
    does not believe the alleged victim or that a crime did or did
    7                                    ACM 38704
    not occur, or that the alleged victim is or is not credible, you
    may not consider this evidence that the alleged victim is or is
    either not credible. And as I instructed you earlier, you had to
    strike that testimony, where the expert inadvertently made a
    comment that sounded like that. Experts are not allowed to
    testify [to] that. That wasn’t his intention. You must strike
    that testimony.
    Before us, Appellant asserts the military judge erred in three ways: (1) he abused
    his discretion by failing to stop the testimony, (2) he abused his discretion and
    exacerbated the error by overruling the defense’s objection to “an additional elicitation of
    the testimony,” and (3) he failed to give a proper instruction to ensure that the members
    disregarded the testimony. Appellant does not, however, argue that the military judge
    erred by denying his motion for a mistrial.
    We review a military judge’s decision to admit evidence for an abuse of
    discretion. United States v. Johnson, 
    46 M.J. 8
    , 10 (C.A.A.F. 1997). The issue of
    whether the members were properly instructed is a question of law, which we review de
    novo. United States v. McDonald, 
    57 M.J. 18
    , 20 (C.A.A.F. 2002). Although we assume
    without deciding that Colonel PC’s testimony that he believed in the victim’s testimony
    constituted inadmissible human lie detector testimony, see United States v. Kasper, 
    58 M.J. 314
     (C.A.A.F. 2003),2 we are not persuaded that the military judge’s handling of the
    situation constituted error. To the contrary, the military judge stopped the testimony and
    issued an immediate curative instruction which he followed with another instruction at
    the close of the evidence. This is precisely the judicial response suggested by our
    superior court. 
    Id. at 319
    .
    The military judge stopped Colonel PC’s testimony and convened an immediate
    Article 39(a), UCMJ, session as soon as the objection was lodged and while the witness
    was still answering the question that elicited the problematic response. When Colonel PC
    returned to the stand, and after the military judge instructed the members to disregard
    Colonel PC’s earlier inadmissible testimony, the military judge sustained each of defense
    counsel’s subsequent objections except one.3 Finally, Appellant does not identify any
    error in the military judge’s subsequent instructions that the members must disregard the
    inadmissible opinion testimony. Court members are “presumed to follow instructions,
    2
    Appellant also asserts that Colonel PC’s testimony that post-traumatic stress disorder (PTSD) “absolutely”
    accounted for the victim’s reported memory loss similarly constitutes impermissible human lie detector testimony.
    As he did not object to this testimony at trial, we test for plain error. Rule for Courts-Martial 920(f). We are not
    persuaded that testimony that PTSD caused a witness’s reported memory loss is human lie detector testimony. See
    United States v. Kasper, 
    58 M.J. 314
    , 315 (C.A.A.F. 2003) (stating that human lie detector testimony is “an opinion
    as to whether the person was truthful in making a specific statement regarding a fact at issue in the case”). Because
    we cannot conclude that the admission of this testimony constituted plain error, we do not test for prejudice.
    3
    The question to which the defense objection was overruled was, “[I]s traumatic amnesia actually a diagnosis in the
    DSM-V?”
    8                                              ACM 38704
    until demonstrated otherwise.” Washington, 57 M.J. at 403 (citing United States v. Holt,
    
    33 M.J. 400
    , 408 (C.M.A. 1991)).
    Findings Instructions
    Prior to deliberations, the military judge instructed the members as follows with
    respect to proof beyond a reasonable doubt:
    A “reasonable doubt” is a conscientious doubt based upon
    reason and common sense, and arising from the state of
    evidence. Some of you may have served as jurors in civil
    cases, or as members of an administrative board[], where you
    were told that it is only necessary to prove that a fact is more
    likely true than not true. In criminal cases, the government’s
    proof must be more powerful than that. It must be beyond a
    reasonable doubt. Proof beyond a reasonable doubt is proof
    that leaves you firmly convinced of the accused’s guilt.
    There are very few things in this world that we know with
    absolute certainty, and in criminal cases the law does not
    require proof that overcomes every possible doubt. If, based
    on your consideration of the evidence, you are firmly
    convinced that the accused is guilty of any offense charged,
    you must find him guilty. If, on the other hand, you think
    there is a real possibility that the accused is not guilty, you
    must give him the benefit of the doubt and find him not
    guilty.
    Appellant did not object to this instruction. Appellant now argues that this instruction
    violates Supreme Court precedent prohibiting a trial judge from “directing the jury to
    come forward with a [guilty verdict], regardless of how overwhelmingly the evidence
    may point in that direction.” United States v. Martin Linen Supply Company, 
    430 U.S. 564
    , 572–73 (1977).
    We review de novo the military judge’s instructions to ensure that they correctly
    address the issues raised by the evidence. United States v. Maynulet, 
    68 M.J. 374
    , 376
    (C.A.A.F. 2010); United States v. Thomas, 
    11 M.J. 315
    , 317 (C.M.A. 1981). Where, as
    here, trial defense counsel made no challenge to the instruction now contested on appeal,
    the appellant forfeits the objection in the absence of plain error.4 R.C.M. 920(f). If we
    find error, we must determine whether the error was harmless beyond a reasonable doubt.
    United States v. Medina, 
    69 M.J. 462
    , 465 (C.A.A.F. 2011).
    4
    Although we recognize that the rule speaks of “waiver,” this is, in fact, forfeiture. United States v. Sousa, 
    72 M.J. 643
    , 651–52 (A.F. Ct. Crim. App. 2013).
    9                                              ACM 38704
    The language used by the military judge in Appellant’s case is—and has been for
    many years—an accepted reasonable doubt instruction used in Air Force courts-martial.
    See, e.g., United States v. Sanchez, 
    50 M.J. 506
    , 510–11 (A.F. Ct. Crim. App. 1999). It
    was also offered by our superior court as a suggested instruction. See United States v.
    Meeks, 
    41 M.J. 150
    , 157 n.2 (C.M.A. 1994) (citing Federal Judicial Center, Pattern
    Criminal Jury Instruction 17-18 (1987)). Both Sanchez and Meeks were decided after the
    authorities cited in Appellant’s brief.
    Based on this legal landscape, we cannot say that the military judge committed
    error, plain or otherwise, in his reasonable doubt instruction.
    Conclusion
    The findings and sentence are correct in law and fact, and no error materially
    prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c),
    UCMJ, 
    10 U.S.C. §§ 859
    (a), 866(c). Accordingly, the findings and sentence are
    AFFIRMED.
    FOR THE COURT
    LEAH M. CALAHAN
    Clerk of the Court
    10                                 ACM 38704
    

Document Info

Docket Number: ACM 38704

Filed Date: 2/11/2016

Precedential Status: Non-Precedential

Modified Date: 2/17/2016