                         UNITED STATES, Appellee

                                         v.

              Wilber J. McINTOSH Jr., Staff Sergeant
                     U.S. Air Force, Appellant

                                  No. 14-0685
                           Crim. App. No. 37977

       United States Court of Appeals for the Armed Forces

                          Argued April 29, 2015

                           Decided July 8, 2015

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, RYAN, and OHLSON, JJ., joined.


                                     Counsel


For Appellant: Captain Lauren A. Shure (argued); Major Grover
H. Baxley (on brief).


For Appellee: Captain Thomas J. Alford (argued); Colonel
Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).


Military Judge:    Paula B. McCarron


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McIntosh, No. 14-0685/AF


     Judge STUCKY delivered the opinion of the Court.

     Appellant argues that his counsel provided ineffective

assistance by failing to seek admission of the results of two

potentially exculpatory physical examinations of the victim.      We

hold that trial defense counsel’s performance was not deficient

and, therefore, not constitutionally ineffective.

                         I.     Background

     Appellant raped and assaulted his stepdaughter beginning in

2006 and ending in April 2010.    A general court-martial

convicted him of one specification of rape of a child between

twelve and sixteen years of age on divers occasions over a

sixteen-month period; one specification of aggravated sexual

abuse of a child on divers occasions over a thirty-month period;

one specification of assault with the intent to commit rape; and

one specification of communicating a threat, in violation of

Articles 120 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 920, 934 (2012).    The adjudged and approved

sentence consisted of a dishonorable discharge, confinement for

twenty-five years, forfeiture of all pay and allowances, and

reduction to the lowest enlisted grade.      The United States Air

Force Court of Criminal Appeals affirmed.      United States v.

McIntosh, No. ACM 37977, 2014 CCA LEXIS 29, at *1, 2014 WL

464623, at *1 (A.F. Ct. Crim. App. Jan. 17, 2014).




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                          II.   Discussion

     The sole issue in this case is whether defense counsel’s

decision not to introduce into evidence two reports by Sexual

Assault Nurse Examiners (SANE reports) amounted to ineffective

assistance of counsel.

     As we explained in United States v. Datavs:

          To establish ineffective assistance of counsel,
     an appellant must demonstrate both (1) that his
     counsel’s performance was deficient, and (2) that this
     deficiency resulted in prejudice. In reviewing for
     ineffectiveness, the Court looks at the questions of
     deficient performance and prejudice de novo.

          With respect to [the] first prong, courts must
     indulge a strong presumption that counsel’s conduct
     falls within the wide range of reasonable professional
     assistance.

          As to the second prong, a challenger must
     demonstrate a reasonable probability that, but for
     counsel’s deficient performance the result of the
     proceeding would have been different.

71 M.J. 420, 424 (C.A.A.F. 2012) (citations omitted) (internal

quotation marks omitted); see Strickland v. Washington, 466 U.S.

668, 690 (1984).

     Appellant argues that these requirements are satisfied, as

the two SANE reports were highly exculpatory and constituted the

only physical evidence in a case that was otherwise premised on

witness testimony.   The first exam was completed the day the

conduct was first discovered, when the victim’s mother walked

into her daughter’s locked bedroom and saw Appellant undressed



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with the child.   The second exam took place after the victim

reported she had been raped for multiple years, but not

immediately after any assault.   The reports concluded with

physical findings that the victim’s genitalia were “without

abnormality” (2007 SANE report) and “normal” (2010 SANE report).

Appellant argues that the reports are especially exculpatory in

that they showed the victim’s hymen to be intact at both times

and because they “bookended” the period of rape and sexual

assault.

     We begin by determining whether trial defense counsel’s

performance fell within the “wide range of reasonable

professional assistance.”   Id. at 424.   While defense counsel

would normally be expected to introduce potentially exculpatory

evidence, their performance is not deficient when a tactical

reason cautions against admission.   See Datavs 71 M.J. at 425

(stating that “objectively reasonable” tactical decisions cannot

constitute deficient performance); Strickland, 466 U.S. at 690

(creating presumption that challenged action had strategic

purpose); Jackson v. Conway, 763 F.3d 115, 154 (2d Cir. 2014),

cert. denied sub nom., Jackson v. Artus, 135 S. Ct. 1560 (2015)

(holding that decision not to introduce potentially exculpatory

laboratory reports was not deficient performance because the

evidence did not have any exceptional value given victim’s

testimony that Appellant was unable to maintain an erection);


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see also Brown v. State, 490 S.E.2d 75, 80 (Ga. 1997)

(concluding defense counsel did not provide ineffective

assistance in choosing not to present physical evidence from the

crime scene that did not link defendant to the crime scene, but

also did not rule out the possibility that he was there).

     Such is the case here.   As the two defense counsels’

affidavits reveal, the choice they made was a considered one,

made after consultation with an expert in the field of SANE

examinations and after discussion with Appellant.   First, the

defense expert confirmed opinions defense counsel had formed

from previous cases:   the lack of abnormal findings in a sexual

assault examination does not conclusively rule out the

possibility that a sexual assault occurred.   See Lingle v. Iowa,

195 F.3d 1023, 1025-26 (8th Cir. 1999); see also Poole v. State,

46 So. 3d 290, 296 (Miss. 2010) (holding that evidence of intact

hymen is not conclusive proof that no penetration occurred).

Second, the primary defense theory was that the Government

failed to prove the charges beyond a reasonable doubt, in part

because the Government offered “absolutely no medical evidence

to support the testimony of the complainant.”   The Government

itself bolstered this argument by not moving to admit the

reports.   Admitting the reports would have undermined this

tactic and opened the door to cross-examination of the SANEs to

the effect that an intact hymen did not preclude Appellant’s


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stepdaughter having been raped.    Third, the 2010 SANE report

indicates that the victim suffered pain when her genitalia were

touched, something that a factfinder might see as evidence of

guilt.   Fourth, admission of the SANE reports would require

discussion of the intrusiveness of the sexual assault exams --

facts the panel could possibly hold against Appellant.       Under

these circumstances, Appellant failed to overcome the strong

presumption that counsel’s performance was within the wide range

of reasonable professional assistance.       Without deficient

performance, there can be no ineffective assistance, and the

inquiry is closed.

                          III.    Judgment

     The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




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