United States v. Staff Sergeant ROY S. TRIPP

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant ROY S. TRIPP
United States Army, Appellant
ARMY 20130683
Headquarters, 7th Infantry Division
David L. Conn, Military Judge (arraignment)
Stefan R. Wolfe, Military Judge (motions hearing)
Timothy R. Hayes, Jr., Military Judge (trial)
Lieutenant Colonel Michael S. Devine, Staff Judge Advocate (pretrial)
Colonel Robert F. Resnick, Staff Judge Advocate (post-trial)
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Christopher A. Clausen, JA (on brief).
30 March 2016
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SUMMARY DISPOSITION
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CAMPANELLA, Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of rape of a child and one specification of
sodomy of a child in violation of Articles 120 and 125 of the Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 925 (2006) [hereinafter UCMJ]. The military
judge sentenced appellant to a dishonorable discharge, twenty-eight years
confinement, and reduction to the grade of E-1. The convening authority approved
the sentence as adjudged and credited appellant with six months of Mason credit
towards his sentence to confinement. See United States v. Mason, 19 M.J. 274(C.M.A. 1985).
TRIPP —ARMY 20130683
This case is before us for review pursuant to Article 66, UCMJ. Appellate
counsel raises two assignments of error, both of which require discussion, one of
which warrants relief. We find the issues raised by appellant, pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) to be meritless.
BACKGROUND
Appellant began raping his daughter, KT, when she was six years old. The
rapes occurred when appellant’s spouse, KT’s step-mother, would leave KT alone in
their home with appellant. On divers occasions over approximately a two-year
period from May 2008 to May 2010 appellant inserted his penis into KT’s vagina.
KT testified that in April 2012, her step-mother left her alone in the house
with appellant. She testified that, on this day, while watching cartoons in the living
room of appellant’s home, appellant started “to put his balls inside [KT’s] butt, but
after a couple times he couldn’t get in, but then one time [appellant] finally got it in,
but then it kept slipping out after that.” KT explained that “balls” referred to where
appellant goes to the bathroom to “pee.” KT testified appellant also put his finger
inside “where she pees.” When appellant stopped raping and sodomizing KT on this
occasion, she saw “white stuff on the couch.” She then went to the playground to
play with friends.
At the playground, KT disclosed to a friend that she had sex with her father
and she liked it, and that “white stuff came out of her butt.” KT’s friend told her
parents - who called law enforcement authorities - leading to an immediate criminal
investigation.
Law enforcement went to appellant’s home and immediately removed KT
from the home. She was taken to the hospital where she underwent a sexual assault
forensic examination (SAFE). KT’s clothes were also collected and tested for
forensic evidence. When KT’s panties were tested, appellant’s sperm and DNA were
found inside the crotch and buttocks area of the panties. The pattern of appellant’s
sperm on the panties matched the description given by KT of how appellant sexually
assaulted her that day.
At trial, defense attempted to attack KT’s credibility by raising prior
inconsistent statements made by KT. To rebut defense’s attack on KT, the
government offered the testimony of Ms. KA, a child interviewer from the Pierce
County Prosecutor’s office. Ms. KA interviewed KT approximately a week after
KT’s initial disclosure to her friend on the playground. Over the objection of defense
counsel, the military judge allowed Ms. KA’s statement into evidence to rebut
defense’s assertion of recent fabrication of the sexual assault allegations by KT.
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TRIPP —ARMY 20130683
On appeal, in a headnote pleading void of any analysis, appellant submits that
the military judge erred in permitting Ms. KA’s testimony into evidence to rebut
recent fabrication. Appellant now asserts the victim’s motive to fabricate sexual
assault allegations against appellant existed prior to her statements to Ms. KA and
therefore are not prior consistent statements within the meaning of Military Rule of
Evidence [hereinafter Mil. R. Evid.] 801(d)(1)(B). We disagree with appellant’s
view of the law based on the facts presented in this case.
LAW AND DISCUSSION
Prior Consistent Statement
Under Mil. R. Evid. 801(d)(1)(B), a prior consistent statement of a witness is
“not hearsay. . . if offered to rebut an express or implied charge of recent fabrication
or improper influence or motive.” United States v. Allison, 49 M.J. 54, 57 (C.A.A.F.
1998) (quoting Mil. R. Evid. 801(d)(1)(B)). Military Rule of Evidence 801(d)(1)(B)
contains several “inherent safeguards” that must be satisfied before prior statements
will be admitted. United States v. Hood, 48 M.J. 928, 933 (Army Ct. Crim. App.
1998) (citing United States v. McCaskey, 30 M.J. 188, 191). “The rule's predicate
safeguards are that the declarant must testify at trial and be subject to cross-
examination; the statement must be consistent with the declarant's in-court
testimony; and, the statement must be offered to actually rebut an attack of recent
fabrication or improper motive or influence.” Id.However, “where multiple motives to fabricate or multiple improper
influences are asserted, the statement need not precede all such motives or
inferences, but only the one it is offered to rebut.” Allison, 49 M.J. at 57; see also,
United States v. Faison, 49 M.J. 59 (C.A.A.F. 1998).
At trial, defense argued under Mil. R. Evid. 403 that Ms. KA’s testimony
would be unduly prejudicial and was an unfair attempt by the government to bolster
KT’s testimony. While KT’s motive to fabricate was raised by defense as part of the
general defense strategy in the case, defense counsel did not assert KT’s motive to
fabricate predated her statements to Ms. KA when asked by the military judge during
trial to provide a basis to exclude the evidence. In fact, the evidence elicited at the
trial alluded to not only the fact that KT was under the improper influence of her
mother while testifying at trial – but also that KT provided inconsistent statements
to a defense counsel a few weeks before trial. Accordingly, defense counsel
conceded at trial that they had raised prior inconsistent statements by KT. The
military judge overruled defense counsel’s objection and allowed Ms. KA’s
testimony into evidence to rebut defense’s assertion of recent fabrication by KT.
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TRIPP —ARMY 20130683
In this case, Mil. R. Evid. 801(d)(1)(B) was not presented to the military
judge as a basis to exclude Ms. KA’s testimony at trial. In fact, multiple improper
influences were asserted by the defense such that KT’s statement to Ms. KA need
“not precede all such motives or inferences, but only the one it is offered to rebut.”
Allison, 49 M.J. at 57; see also, United States v. Faison, 49 M.J. 59 (C.A.A.F.
1998). Consistent with the holding in Allison, we are hard-pressed to find error.
Assuming error, we find nothing that materially prejudices appellant's
substantial rights. See UCMJ art. 59(a); see also McCaskey, 30 M.J. at 193. The
evidence against appellant in this case, without regard to the prior statements to Ms.
KA, was overwhelming.
Dilatory Post-Trial Processing
The convening authority took action 461 days after the sentence was
adjudged, 356 of which are attributable to the government. The record in this case
consists of seven volumes, and the trial transcript is 723 pages. Although we find no
due process violation in the post-trial processing of appellant’s case, we must still
review the appropriateness of the sentence in light of the dilatory post-trial
processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine
what findings and sentence ‘should be approved,’ based on all the facts and
circumstances reflected in the record, including the unexplained and unreasonable
post-trial delay.”); see generally United States v. Toohey, 63 M.J. 353, 362-63
(C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 617 (Army Ct. Crim. App.
2010); United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).
The government argues they were forced to rely on I Corps staff for
processing court-martial transcripts and were operating on a skeleton staff due to the
reactivation of 7th Infantry Division, thereby causing a transcription backlog.
Despite the government’s arguments, relief in this case is appropriate as the delay
between announcement of sentence and action could “adversely affect the public’s
perception of the fairness and integrity of military justice system . . . .” Ney, 68
M.J. at 617. As such, we provide relief in our decretal paragraph.
CONCLUSION
Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, we affirm only so much of the
sentence as provides for a dishonorable discharge, twenty-seven years and eleven
months confinement, and reduction to the grade of E-1. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58b(c) and
75(a).
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TRIPP —ARMY 20130683
Senior Judge TOZZI and Judge CELTNIEKS concur.
FOR THE
FOR THE COURT:
COURT:
JOHN P. TAITT
JOHNDeputy
Chief P. TAITT
Clerk of Court
Chief Deputy Clerk of Court
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