

   
   
   
   U.S. v. Allen



United States, Appellee
v.
Matthew D. ALLEN, Specialist
U.S. Army, Appellant
 
 
No. 97-1016
Crim. App. No. 9501503
 
 
United States Court of Appeals for the Armed
Forces
Argued October 7, 1998
Decided March 26, 1999


EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and CRAWFORD and GIERKE, JJ., joined. SULLIVAN,
J., filed an opinion concurring in the result.
 


Counsel
For Appellant: Captain Jodi E. Terwilliger-Stacey
(argued); Major Leslie A. Nepper (on brief); Colonel John
T. Phelps, II, Lieutenant Colonel Michael L. Walters, Lieutenant
Colonel Adele H. Odegard, and Major Holly S. G. Coffey.
For Appellee: Major Lyle D. Jentzer
(argued); Colonel Russell S. Estey (on brief); Lieutenant
Colonel Eugene R. Milhizer and Major Patricia A. Ham.
Military Judges: Robert F. Holland and Gary
Holland
Tried at Fort Campbell and Fort Knox, KY
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION


Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer
and enlisted members convicted appellant, pursuant to his mixed pleas,
of rape (3 specifications), committing indecent acts (2 specifications),
adultery (3 specifications), and providing alcoholic beverages to a minor
(4 specifications), in violation of Articles 120 and 134, Uniform Code
of Military Justice, 10 USC §§ 920 and 934, respectively.
Appellant was sentenced to a dishonorable discharge, confinement for 6
years, and reduction to the grade of E-1. The convening authority approved
the sentence as adjudged, and the Court of Criminal Appeals affirmed the
findings and sentence in an unpublished opinion.
On appellant's petition, we granted review
of the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT
TO SUPPORT A FINDING OF GUILTY OF RAPE AND ADULTERY BECAUSE THE EVIDENCE
PRESENTED AT TRIAL SIGNIFICANTLY VARIES FROM THE SPECIFICATIONS ALLEGED
IN THE PLEADINGS.

At issue in this appeal is Charge II, consisting
of six specifications of rape. Each specification addressed either a weekend
in November or December 1994, and each specification further alleged
that, within each such weekend, appellant committed rape "on divers occasions."
For the reasons stated below, we conclude that the findings of guilty of
rape should be consolidated into one specification, and as modified, we
affirm the findings and the sentence.

I.
With respect to each of the rape specifications
under Charge II, the victim was appellants 15-year-old sister-in-law,
T.P. At trial, the defense presented expert testimony by a clinical psychologist,
Dr. Brams, detailing T.P.s mental capabilities. According to Dr. Brams,
T.P. suffered from "significant language deficits." T.P. tested in the
bottom first percentile in her ability to understand directions, to communicate
in her environment, and to understand what people told her. She scored
in the second percentile in her understanding of the complexity of language.
She scored in the ninth percentile in her ability to formulate sentences.
Overall, her IQ score was 52, which, Dr. Brams testified, put her in "the
moderately retarded range, the very high end of moderately retarded, the
very low end of mildly mentally retarded."
T.P. testified at trial that she had engaged
in sexual intercourse with appellant "more than once," but she was unable
to identify the dates or the exact number of times that intercourse had
occurred. She stated that the intercourse had occurred while her sister,
appellants wife, was at work. The Government also introduced testimony
concerning a medical examination indicating that T.P. had experienced sexual
intercourse, as well as testimony concerning appellants access to T.P.
The defense introduced contradictory medical testimony, as well as testimony
disputing appellants access on five of the six weekends covered by the
six specifications.
The panel convicted appellant of three specifications
of rape on divers occasions for the weekends of November 25-26, December
16-17, and December 30-31. The panel returned not guilty verdicts for the
specifications alleging rape on December 2-3, 9-10, and 23-24.

II.
A. VARIANCE
Appellant contends that his convictions for
rape should be set aside because the proof at trial varied significantly
from the offenses alleged in the pleadings. He takes the position that
the proof at trial was not specific as to the dates of the alleged rapes,
that this lack of specificity constituted a variance, and that he was prejudiced
by the variance because he is not protected from future prosecution for
the same offenses.
The Government counters that there was no material
variance between the offenses charged - rape on divers occasions over
a period of six weekends -- and those that were proved. The Government
contends that, because testimony at trial established that the rapes had
occurred during that same 6-week period, there was no fatal variance in
this case.
A variance between pleadings and proof exists
when evidence at trial establishes the commission of a criminal offense
by the accused, but the proof does not conform strictly with the offense
alleged in the charge. See United States v. Lee, 1 MJ 15,
16 (CMA 1975). "To prevail on a fatal-variance claim, appellant must show
that the variance was material and that it substantially prejudiced him."
United
States v. Hunt, 37 MJ 344, 347 (CMA 1993).
Even assuming there was a variance in this
case, it was neither material nor prejudicial. The Government charged the
rapes as occurring "on or about" each of the six specified weekends. When
a charge employs "on or about" language, the Government is not required
to prove the specific date alleged in the charge. In this case, the victim
was able to recall only that the rapes began when her sister, appellants
wife, began working outside the home. At trial, the Government introduced
Mrs. Allens work schedule, which showed that she began working weekends
on November 11, 1994, and that she had worked on all of the weekends specified
in Charge II. Although the evidence adduced at trial was not specific as
to the particular dates on which intercourse occurred, the evidence focused
on the identical time frame alleged in the specifications and, therefore,
did not constitute a material variance.
Appellant was not prejudiced by the manner
in which the offenses were charged. In order to show prejudice, appellant
must show both that he was misled by the language of Charge II, such that
he was unable adequately to prepare for trial, and that the variance puts
him at risk of another prosecution for the same offense. See Lee,
1 MJ at 16. Far from misleading appellant, the specifications of Charge
II established a finite time frame, which defense counsel then used to
present a defense based on lack of access to the victim. In addition, the
findings are sufficiently definite to protect appellant against another
prosecution for the same offenses because the "on or about" language of
the Charge II specifications enables him to rely on the record of trial
and convictions in this case to establish a former jeopardy defense to
any subsequent criminal proceeding based on the same conduct.

B. SUFFICIENCY OF THE EVIDENCE
Appellant also argues that the evidence at
trial was legally insufficient to support convictions for three separate
specifications of rape on three separate weekends. In determining whether
evidence is legally sufficient to support a conviction, this Court must
view the evidence in the light most favorable to the prosecution. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979). A conviction
for three specifications for rape on divers occasions would entail a finding
by the panel that at least two acts of intercourse occurred on each of
the three weekends.
At trial, the victims doctor testified that,
based on a physical examination of the victim, he concluded that she had
been "sexually active at least on several occasions in the past." The victim
testified that she had engaged in intercourse with appellant "more than
once." No further evidence was presented as to the number of times intercourse
had occurred. Appellants counsel contends that the proof, even when viewed
in the light most favorable to the Government, could only support one specification
of rape on divers occasions.
Appellant asserts that he did not have access
to the victim on at least five of the six charged weekends. Various witnesses
testified that T.P. spent weekends at a friends house and that the friend
had visited T.P. at her parents house on other weekends during the 6-week
time period at issue. There was also testimony that appellant had spent
several nights playing cards or bowling with the victims parents. Based
on this testimony, appellant argues that the evidence was insufficient
to support even one specification of rape, because the evidence showed
that he did not have access to the victim.
The Government responds that the medical evidence
presented at trial was sufficient, when viewed in the light most favorable
to the prosecution, to support convictions for the three specifications
of rape on divers occasions. The Government refuted appellants lack-of-access
argument at trial by introducing evidence that he had told investigators
that T.P. had stayed at his house almost every weekend. The Government
argues that this evidence, in addition to the evidence that T.P. had been
sexually active "more than once" or "on several occasions," could have
led the panel to conclude that penetration occurred at least six times.
Regardless of whether the evidence demonstrated
that appellant had raped T.P. on three specific, separate, and distinct
weekends, the evidence introduced by the Government was sufficient evidence
to sustain a finding under Jackson v. Virginia, supra, that
appellant had raped T.P. on more than one occasion between November 25
and December 31, 1994. At oral argument, counsel for the Government was
asked whether, in light of the multiple charges and the nature of the evidence,
there was any societal interest to be served by charging appellant with
six separate specifications of rape, rather than charging this crime as
a course of conduct, with one specification of rape on divers occasions.
The Government responded that there was no societal interest that would
militate against a single consolidated specification covering a course
of conduct with a start and end date. Counsel added that the Government
would have no objection to such a consolidated specification. In view of
the position taken by the Government, we conclude that it is appropriate
to order consolidation of the three specifications appellant was found
guilty of into a single specification alleging rape on divers occasions
between November 25 and December 31, 1994.
Appellant argues that a consolidation of the
specifications in this case would necessitate a rehearing on sentence.
Appellant's argument is based on the proposition that the original sentence
was based on a minimum of six acts of penetration (at least two for each
of the three specifications), while a new sentence would be based on a
single specification, indicating only two or more penetrations.
Based on the manner in which the evidence was
presented at trial, we do not agree that a rehearing on sentence is required.
This is not a case in which the members were presented with specific evidence
of multiple rapes on specific dates. Rather, in light of the limited capabilities
of the victim, it is a case in which the members were presented with evidence
from the victim that intercourse had occurred "more than once," along with
evidence indicating the opportunity for appellant to be alone with the
victim. We also note that the multiple findings of guilty did not increase
the maximum punishment, because a single finding of rape would have carried
the same maximum punishment -- confinement for life. See para. 46e(1),
Manual for Courts-Martial, United States (1995 ed.). It is noteworthy that
appellant's sentence of 6 years' confinement -- which covered convictions
for a variety of offenses other than rape -- was well below the maximum.
In that context, we are confident that the members sentenced appellant
based on the evidence of the course of conduct, which is reflected in the
consolidated specification.

III.
Specifications 1, 4, and 6 of Charge II are
consolidated into the specification of Charge II.1
The decision of the United States Army Court
of Criminal Appeals, as to modified Charge II, and in all other respects,
is affirmed.
FOOTNOTE:
1 "In that
SPC Matthew D. Allen, US Army, did, at Fort Knox, Kentucky, between on
or about 25 November 1994 and on or about 31 December 1994, on divers occasions,
rape [T.P.], a person who had not attained the age of 16 years."
 
 
SULLIVAN, Judge (concurring in the result):
Even with the Governments concession at oral
argument, I am hesitant to join the majoritys consolidation of the rape
offenses. The consolidated specification approved by the majority violates
RCM 307(c)(4) and 906(b)(5), Manual for Courts-Martial, United States (1995
ed.). Two or more offenses charged in one specification is generally contrary
to military pleading practice. See D. Schlueter, Military Criminal
Justice
§ 6-1(C)(2) at 282-83 (4th
ed. 1996).
On the sufficiency of evidence question, in
my view, the evidence warrants affirmance of three specifications of rape
under Jackson v. Virginia, 443 U.S. 307 (1979). This rape victim
was appellants 15-year-old sister-in-law. The record shows that her mental
capacity was that of a 6-year-old. The work schedule of Mrs. Allen, the
testimony of the victim, and the doctors testimony, when viewed under
the lens of Jackson v. Virginia, support the jurys verdict that
the multiple sex offenses occurred during the 6-week window of the pleading.
As to the possible prejudicial variance in
this case, appellant knew before trial that he was facing a wide window
of time for the three rape specifications by the use of the "on or about"
language and the 6-week time period. He also knew the limited ability of
his victim to articulate the specific times of the charged crimes. Yet
appellant did not ask for a bill of particulars. I find that, under these
circumstances, he was not prejudiced in preparing for a fair trial.
Nevertheless, the affirmance of a single specification
of rape "on divers occasions" during the entire time period is not an unfair
disposition for appellant. See United States v. Mincey, 42
MJ 376, 378 (1995). Accordingly, I concur with the majoritys result in
this case.
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