

   
   
   
   U.S. v. Cobia



UNITED STATES, Appellee
v.
Morris T. COBIA, Staff Sergeant
U.S. Army, Appellant
 
No. 99-0073
Crim. App. No. 9601645
 
United States Court of Appeals for the Armed
Forces
Argued November 8, 1999
Decided August 24, 2000
CRAWFORD, C.J., announced the judgment of
the Court and delivered an opinion in which COX, S.J., joined. SULLIVAN,
J., filed an opinion concurring in part and in the result, in which EFFRON,
J., joined. GIERKE, J., filed an opinion concurring in part and in the
result.
Counsel
For Appellant: Colonel Adele H. Odegard
(argued); Colonel John T. Phelps II (on brief); Major Scott R.
Morris.
For Appellee: Lieutenant Colonel Eugene
R. Milhizer (argued); Colonel Russell S. Estey, and Major
Patricia A.  Ham (on brief); Captain Troy A. Smith.
Military Judge: Alfred F. Arquilla
 
 



THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.



Chief Judge CRAWFORD announced the
judgment of the Court and delivered an opinion in which Senior Judge COX
joined.
Contrary to his pleas, appellant was
convicted by a military judge of two specifications of rape, two specifications
of forceful sodomy with a child, indecent acts with a child, and adultery,
in violation of Articles 120, 125, and 134, Uniform Code of Military Justice,
10 USC §§ 920, 925, and 934, respectively. The convening authority
approved the sentence of a dishonorable discharge, 20 years confinement,
total forfeitures, and reduction to the lowest enlisted grade. The Court
of Criminal Appeals found the evidence to be insufficient to convict appellant
of either specification of forceful sodomy, but approved both of the lesser
included offenses of attempted sodomy. It then reassessed and affirmed
the findings and sentence. We granted review of the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED
HIS DISCRETION AND COMMITTED PLAIN ERROR WHEN HE REFUSED TO GRANT DEFENSE
COUNSELS MOTION TO PROHIBIT USE OF APPELLANTS CIVILIAN CONVICTION FOR
AN IDENTICAL OFFENSE, WHICH FORMED THE BASIS FOR TWO OF THE SIX SPECIFICATIONS
AT THE COURT-MARTIAL.
II. WHETHER THE EVIDENCE ADDUCED AT
TRIAL IS LEGALLY SUFFICIENT TO SUPPORT FINDINGS OF GUILTY FOR THE OFFENSES
OF RAPE AND ATTEMPTED SODOMY.

For the reasons set forth herein, we affirm
the decision of the court below.

FACTS
A.
On July 19, 1995, appellants 13-year-old
stepdaughter, C, told her mother that appellant had engaged in sexual intercourse
with her 1 day earlier. This prompted appellant's wife to notify the military
authorities, who, in turn, contacted the civilian child welfare authorities
in Fayetteville, North Carolina. Appellant was arrested and charged with
sexual offenses and incarcerated pending trial. He pled guilty in March
1996 in the North Carolina state court to five felony counts, including
incest, indecent liberties with a child, child abuse, and sex acts with
a minor by a parental substitute.
Two (rape and sodomy) of the six specifications
in this case relate to events that occurred on July 18, 1995. Both appellant
and the Government agree that appellant was tried at court-martial for
the same offenses he pled guilty to in state court.
At trial, C testified that she had
known appellant since 1993, when they were living in Germany. C testified
that appellant began sexually abusing her by touching her breasts and bottom,
but eventually advanced to digital vaginal penetration that was so painful
she would tell appellant to stop. Despite Cs request, appellant continued
the abuse. According to Cs testimony, within a matter of days, the abuse
had progressed from digital penetration to appellants attempted, and ultimately
successful, penile penetration. Over a period of time, appellant was able
to stretch her vagina so that digital and penile penetration could be accomplished
more easily. On many of these occasions, appellant would kiss Cs breast
and vagina both before and after sex, although there was never any kissing
on the lips. C testified that after a time, she started to enjoy the sexual
activity and even initiated the contact with appellant on some occasions.
C testified that on July 18, 1995,
she approached appellant, who was lying on the couch, and laid across his
stomach. Appellant began taking off Cs shorts and underwear and then began
undressing himself. He requested that C sit atop him in a straddle position
to allow penile penetration. After a few moments, appellant carried C upstairs
and engaged in sexual intercourse with her.
C's testimony was corroborated by Cs
mother, who was also appellants wife. Mrs. Cobia, who was a Specialist
in the Army at that time, testified that a few months before the events
of July 18th, she whipped C with a belt for repeatedly missing
the school bus. After the whipping, Mrs. Cobia asked C if her "husband
[had] been having sex with [C]." Mrs. Cobia testified that she had suspected
abuse because C had been behaving in "suspicious" ways. C admitted appellant
had been abusing her. When Mrs. Cobia confronted appellant with Cs revelation,
he "[broke] down crying and he was telling me  you know  basically why
he did it or what happened  what led up to it, as far as me rejecting
him and not wanting to have sex with him, and just not wanting to talk
to him." Unsure of what to do, Mrs. Cobia waited for 2 weeks and then reported
the incident to Specialist Elam, and later to her First Sergeant. The First
Sergeant told her that bringing charges against appellant would delay shipping
her vehicle and household goods back to the United States and suggested
she wait to pursue this matter until she had returned stateside. Mrs. Cobia
testified that for these reasons, she did not act on C's allegations. On
July 10, 1995, she started working at her new assignment in Fayetteville,
North Carolina, but had not yet made a report of the abuse to authorities.
Mrs. Cobia also testified as to the
events leading up to her report of appellant for sexually abusing C on
July 18, 1995. Mrs. Cobia stated that when appellant and C picked her up
from work on July 18, the expression on their faces told her something
was wrong. After finding Cs bath towel in the bathroom still wet in the
middle of the day (one of the odd behaviors that had aroused her suspicions
of abuse in the first place), she confronted C, who broke down and started
crying. C admitted that appellant had engaged in sexual intercourse with
her earlier that morning. When Mrs. Cobia again confronted appellant and
ordered him to leave the house, he began blaming the abuse on C, telling
his wife "that she went to him  she came to him." Mrs. Cobia reported
the incident to her supervisor and her Command Sergeant Major and then
took C to the hospital for an examination.
C was examined by Colonel (Dr.) Sharon
Cooper, who testified that C told her appellant had started touching her
breast and bottom at age 11. Colonel Cooper testified that C admitted appellant
had sex with her and that, for several months, sexual intercourse with
appellant was very painful. Colonel Cooper also testified that such pain
during intercourse is "very characteristic of [prepubertal] children who
do not have estrogen and vaginal mucosa."
A physical examination of C revealed
an old tear wound in the hymenal tissue and internal vaginal tissues that
resembled those of a very sexually active woman. Colonel Cooper testified
that this finding in a 12-to-14-year-old is "extremely abnormal," and usually
means the patient has suffered "significant, repetitive, penetrating injuries."
Dr. Cooper testified as to the question of physical force as follows:

What this child describes is sexual
abuse that begins first with touching, and then gradually becomes more
and more detailed and finally culminates in full sexual intercourse which,
after a while, becomes initiated by the child victim, is a - is right out
of a textbook. That's very classic, for a child who has not been dramatically
traumatized by what has happened to them, but who has been groomed. The
term that the literature used is - uses is groomed. Children, in this age
group - as a matter of fact, in my experience, I have never heard a child
say to me, in an intrafamilial case, that, "He forced me to do this." It's
more common to see that
term "forcing" used when the perpetrator
is outside of the family, as compared to in the family. The reason for
that, oftentimes, according to the literature, is the feeling that children
have an absolute respect for the
authority of parents; and, if a parent
tells you to do something, children don't refer to that as being forced
to do it. They refer to it as being told to do something. They usually
will do it, they'll follow through, because of the authority of that position.

B.
At a pretrial session under Article
39(a), UCMJ, 10 USC § 839(a), defense counsel moved to suppress references
to appellants prior North Carolina convictions, either as substantive
evidence or as impeachment of appellant.

Defense counsel also asserted that,
as North Carolina had no allocution requirement for guilty pleas, the probative
value of the conviction was limited. He posited that Appellant may have
accepted a plea bargain with its attendant limited sentence rather than
risk a much longer prison sentence if convicted after a contested trial.

Final Brief at 6. During this motion,
appellant did not deny commission of the acts in question. The judge ruled
that the convictions were not admissible under Mil.R.Evid. 404(b), Manual
for Courts-Martial, United States (1995 ed.),1
but could be admitted for impeachment purposes. He stated:

This court holds that this conviction can
be used to impeach the accused . . . . This court finds that the impeachment
value of this conviction is exceptionally high, particularly given the
fact that the North Carolina conviction is for the same type of sexual
offenses of which the accused is charged at this court-martial.
Additionally, the conviction involves the same
alleged victim and part of the same time period as the charges before the
court-martial. Although the similarity and the crimes that are the subject
of the conviction and that are before this court-martial, ordinarily would
be a factor that would weigh against the admission of the conviction.
I find that the fact that the accused pled
guilty to the State charges to be a factor very inconsistent with innocence
 akin, perhaps, to a confession to several of the offenses charged at
this court-martial. Therefore, I find that the probative value of the conviction
far outweighs a danger of unfair prejudice to the accused. This is particularly
the case, where, as it appears here, the credibility of the accused and
the witnesses who may testify against him, appears central to a determination
of the issues in this case. I make this finding even though the accuseds
testimony may be of critical importance to the defense theory of its case.

During the defense case-in-chief, and near the
end of appellants testimony, the transcript of appellants guilty
plea in the North Carolina court was admitted into evidence as Defense
Exhibit E. The defense used this transcript to bring into question the
validity of the guilty pleas. In explaining his prior conviction,
appellant stated the proceedings took only 10 minutes, and he did not fully
understand the questions to which he responded. He testified that he pled
guilty because no one would talk to him, and he felt he was being "steamrolled."
Additionally, the North Carolina judge who accepted his plea did not conduct
a factual inquiry concerning any incidents with C. Despite appellants
attempt to cast a pall on his guilty pleas, he testified during
cross-examination that his statements made during the guilty plea
in the civilian trial were truthful.2
As part of the guilty plea in Cumberland County,
North Carolina, appellant stated under oath that he "read or ... heard
all [the] questions [concerning his plea] and underst[ood] them" and correctly
answered them as part of his guilty plea inquiry. His admissions included
that he understood the "nature of the charges" that had been explained
to him by his lawyers; that his "attorney discussed [with him] the possible
defenses"; and that he was "satisfied with [his] lawyer's legal services."
With that advice, he personally pled guilty because he was "in fact guilty."
He had the option of making a plea of no contest, which would not admit
guilt, but opted against that.
Appellant pled guilty to five offenses, including
taking indecent liberties with a child. In connection with this offense,
appellant admitted that he willfully took indecent liberties with a child
for the purpose of arousing and gratifying his sexual desire and that this
indecent liberty was an improper or indecent act. He also admitted that
he abused the child and thereby intentionally inflicted a serious physical
injury on the child or intentionally assaulted the child which proximately
resulted in serious physical injury to the child.
Appellant now contends that the judge
erred in admitting this evidence under Mil.R.Evid. 609(a)(1).

DISCUSSION
The standard of review as to Issue I, the
admissibility of appellants prior convictions, is whether the judge
abused his discretion. See, e.g., United States v. Sitton,
39 MJ 307 (CMA 1994). The standard of review for the sufficiency
of the evidence, Issue II, is de novo. The test for sufficiencyis
whether the evidence, when viewed in the light most favorable to the Government,
and the reasonable inferences from the evidence support the essential elements
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1970).
The issues in this case are intertwined with
the credibility of the witnesses for both sides since, during
the defense case-in-chief, appellant denied that he ever hadsexual
intercourse with or sodomized C on any occasion and testified that he never
touched her inappropriately.

A.
As to the admission of the prior conviction,
this case is controlled by Ohler v. United States, 120 S.Ct. 1851
(2000). In Ohler, the defendants in limine motion
to prevent the Government from using a prior conviction for impeachment
was denied. During the defense case-in-chief, Ohler testified on direct
examination as to the prior conviction to remove its sting. Based on this
testimony, the Court held that Ohler "cannot complain on appeal that the
evidence was erroneously admitted." Id. at 1853.
The Court rejected the argument that it would
be unfair to apply waiver "because it compels the defendant to forgo the
tactical advantage of preemptively introducing the conviction in order
to appeal the in liminie ruling." Id. The Court dismissed
the argument that a defendant in a criminal case is disadvantaged, stating
that each side "must make choices as the trial progresses." Id.
at 1854. The defendant must decide whether to take the sting out of the
prior conviction or to gamble whether the prosecution will seek to impeach
the defendant with the prior conviction. "[T]he Government has one inherent
advantage," because it "need not make its choice until the defendant has
elected whether or not to take the stand in [his] own behalf and
after the Government has heard the defendant testify." Id. However,
once the defendant "preemptively introduces evidence of a prior conviction
on direct examination [he] may not on appeal claim that the admission of
such evidence was error." Id. at 1855. Likewise, appellant may not
make such a claim.
Nor can the defense claim the facts
of appellants previous conviction are collateral, as the evidence supports
the victims testimony as to the elements in question. United States
v. Lambert, 463 F.2d 552, 556-57 (7th Cir. 1972)(facts not
collateral); United States v. Schennault, 429 F.2d 852, 855 (7th
Cir. 1970); see also 3A Wigmore on Evidence §§
1000 to 1007 at 956-81. (Chadbourn rev. 1970).

B.
Appellants prior conviction could have been
introduced as substantive evidence, which would have increased its probative
value since it would not be limited to the credibility issue. Specifically,
we recognized in United States v. Gray, 51 MJ 1, 25 (1999), that
"[g]uilty pleas and accompanying statements in one jurisdiction are generally
admissible in other jurisdictions to prove the elements of other crimes."
This theory of contradiction as impeachment
finds its roots in the common law theory of relevance. Wigmore, supra
§§ 1003 and 1004 at 961-66. Mil.R.Evid. 401 provides that evidence
is relevant if it has "any tendency to make the existence of any fact ...
more or less probable tha[n] it would be without the evidence." Certainly,
admitting guilt for committing the "same acts" as currently charged is
relevant to the current case. Therefore, the transcript of appellant's
North Carolina plea to similar offenses on the same dates is relevant and
not collateral. The transcript is also admissible as a prior inconsistent
statement under Mil.R.Evid. 613 or an admission under Mil.R.Evid. 801(d)(2).
Appellants complete denial of the commission
of any of the acts comprising the charges against him at his court-martial
opened the door for contradictory evidence. Wigmore, supra. When
Witness 1 testifies as to fact A, and Witness 2 testifies as to fact B,
B is admissible, provided the facts are not collateral.
In United States v. Lyon, 15
USCMA 307, 312, 35 CMR 279, 284 (1965), this Court held that "contradiction
for the purpose of impeachment alone is to be distinguished from proof
of other acts of misconduct in connection with the merits of the controversy
presented to the court-martial. If such misconduct be relevant and material,
it is provable directly and quite without regard to whether the persons
involved therein denies its commission." Similarly, in United
States v. Cottle, 14 MJ 260, 265 (CMA 1982), we held that "[w]e
have thus recognized an exception to the rule preventing the introduction
of collateral evidence solely to attack the credibility of a witness where
the evidence goes to the matter at issue and could be introduced independently
of the contradiction of the testimony of the witness." See McCormick
on Evidence § 45 at 184 (5th ed. 1999). Considering
these cases, it becomes apparent that the purpose of a trial is
truthfinding, as illusive as that might be. Thus, it is permissible to
contradict the testimony of a witness with relevant facts in order to facilitate
the search for truth by the members.
Thus, questions about appellants prior guilty
plea were relevant and admissible to impeach appellant by contradiction.

C.
As to issue II, there is no evidence of a coerced
plea, or a plea in the absence of counsel. The questions and answers by
appellant at the state hearing at least support a reasonable inference
that the victim was telling the truth. While Defense Exhibit E undercuts
the defendants theory of the case, it is not substantive evidence as to
all the offenses. The victims testimony, along with the corroborating
testimony of the victims mother and the expert testimony of Colonel Cooper,
supports the findings in this case. Thus, we hold that the evidence
is sufficient to support the verdict.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 All Manual
provisions are cited to the version applicable at trial. The 1998 version
is unchanged, unless otherwise indicated.
2
After determining that appellant fully understood his rights and the charges
against him, the North Carolina judge asked appellant if he personally
pled guilty to the offenses stated. Appellant responded in the affirmative.
The judge then asked, "Are you in fact guilty?", to which appellant answered,
"Yes."


SULLIVAN, Judge, with whom EFFRON, Judge, joins
(concurring in part and in the result):
I agree with the majority that the recent decision
of the Supreme Court in Ohler v. United States, 120 S.Ct. 1851 (2000),
controls this Military Rule of Evidence 609 case. However, Ohler
was not decided at the time this appeal was argued at this Court. Assuming
it inapplicable, I would still vote to affirm this conviction.
The military judge in this case admitted evidence
of appellants guilty plea convictions in state court for the same offenses
he was being tried for at court-martial. He admitted this evidence for
the express purpose of "impeach[ing] the accused on the basis of the
cases just cited." (R. 79-80). Those cases were United States v.
Brenizer, 20 MJ 78 (CMA 1985), and United States v. Sitton,
39 MJ 307 (CMA 1994). These are Military Rule of Evidence 609 cases (impeachment
by evidence of conviction of a crime). Accordingly, I would limit my review
in this case to the propriety of the admission of the challenged evidence
for the purpose it was actually admitted by the trial judge (impeachment
by prior convictions).
Turning to the trial judges decision in this
regard, I have some concern with his reasoning that the probative value
of admitting this evidence for this purpose outweighed its prejudicial
effect. See Mil. R. Evid. 609. A number of federal courts have found
that evidence of this type presented to a jury was clearly more prejudicial
to an accused on his substantive guilt than probative of his credibility.
See
United States v. Martinez, 555 F.2d 1273 (5th Cir. 1977);
United States v. Maestas, 941 F.2d 273, 279 n.7 (5th
Cir. 1991); United States v. Denetclaw, 96 F.3d 454, 460 (Lucero,
C.J., concurring) (10th Cir. 1996); cf. United States
v. Moore, 735 F.2d 289, 293 (8th Cir. 1984). I think military
case law has also recognized the extraordinary prejudicial impact of evidence
of convictions of offenses which are the same as the ones charged. SeeUnited
States v. Brenizer, supra at 81.
Nevertheless, this was a trial before a military
judge alone, which appellant requested after the military judge indicated
he would admit the challenged evidence. See Luce v. United States,
469 U.S. 38 (1984); United States v. Gee, 39 MJ 311 (CMA 1994).
Here, the military judge admitted this evidence for the limited purpose
of impeachment by prior convictions, and he expressly refused to consider
it for substantive purposes. See Mil. R. Evid. 105. I presume military
judges know the law and will do what they say. See generally
United States v. Kinman, 25 MJ 99, 100-01 (CMA 1987). Accordingly,
in light of the defenses decision to have a trial by judge alone, I see
little chance of undue prejudice in this case and would find no error under
Mil. R. Evid. 609.


GIERKE, Judge (concurring in part and in the
result):
I agree with the result in this case. I also
agree with the majoritys conclusion that the evidence was admissible as
a prior inconsistent statement under Mil. R. Evid. 613 or as an admission
under Mil. R. Evid. 801(d)(2). Finally, I agree with the majoritys holding
that appellant waived any objection under Mil. R. Evid. 609 by testifying
about the conviction on direct examination. We need not decide whether
the evidence was admissible under the common law theory of impeachment
by contradiction, and I do not join that portion of the majority opinion.


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