United States v. Staff Sergeant LUIS A. AGUILAR ( 2008 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    HOLDEN, HOFFMAN, and SULLIVAN
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Staff Sergeant LUIS A. AGUILAR
    United States Army, Appellant
    ARMY 20021439
    1st Cavalry Division
    Debra L. Boudreau, Military Judge
    Lieutenant Colonel Kevan F. Jacobson, Staff Judge Advocate
    For Appellant:  Colonel Mark Cremin, JA; Lieutenant Colonel Mark
    Tellitocci, JA; Major Allyson Lambert, JA; Captain Amy S. Fitzgibbons, JA
    (on brief).
    For Appellee:  Lieutenant Colonel Theresa A. Gallagher, JA; Lieutenant
    Colonel Randy V. Cargill, JA, USAR (on brief).
    22 April 2008
    -------------------------------------------------
    SUMMARY DISPOSITION ON REMAND
    -------------------------------------------------
    Per curiam:
    The Court of Appeals for the Armed Forces set aside our decision in
    United States v. Aguilar, ARMY 20021439 (Army Ct. Crim. App. 10 April 2007)
    (unpub.), and returned the record for further consideration in light of
    United States v. Harcrow, 
    66 M.J. 154
     (C.A.A.F. 2008) and United States v.
    Gardinier, 
    65 M.J. 60
     (C.A.A.F. 2007).  See United States v. Aguilar,
    M.J.       (C.A.A.F. March 18, 2008).  We accept the government concession
    that, under the circumstances in this case, the military judge abused her
    discretion in permitting Ms. Joy Travis, the sexual assault nurse examiner
    (SANE), to testify concerning statements CA, appellant’s sixteen-year-old
    daughter, made to her after an allegation of sexual abuse arose.[1]
    As the erroneous admission of CA’s statements to Ms. Travis was of
    constitutional magnitude, we review the record de novo to determine whether
    the error was harmless beyond a reasonable doubt.  United States v. Othuru,
    
    65 M.J. 375
    , 377 (C.A.A.F. 2007).  In determining whether the error was
    harmless, we consider all the circumstances of appellant's trial.  United
    States v. Hall, 
    58 M.J. 90
    , 94 (C.A.A.F. 2003) (citing Delaware v. Van
    Arsdall, 
    475 U.S. 673
    , 684 (1986)).
    Whether such an error is harmless in a particular case depends
    upon a host of factors, all readily accessible to reviewing
    courts. These factors include the importance of the witness’
    testimony in the prosecution’s case, whether the testimony was
    cumulative, the presence or absence of evidence corroborating or
    contradicting the testimony of the witness on material points,
    the extent of cross-examination otherwise permitted, and, of
    course, the overall strength of the prosecution’s case.
    United States v. Williams, 
    40 M.J. 216
    , 218-19 (C.M.A. 1994) (citing Van
    Arsdall, 
    475 U.S. at 684
    ).
    Applying the factors set forth in Van Arsdall, we find beyond a
    reasonable doubt that the military judge — or any reasonable trier of fact
    — would have concluded appellant committed incest with his daughter.  In
    addition, disregarding the evidence improperly admitted, we are convinced
    of appellant’s guilt beyond a reasonable doubt pursuant to Article 66,
    UCMJ.  See United States v. Turner, 
    25 M.J. 324
    , 324-25 (C.M.A. 1987).
    Foremost, we find Ms. Travis’s inadmissible hearsay testimony to be of
    little “importance . . . in the prosecution’s case.”  Van Arsdall, 
    475 U.S. at 684
    .[2]  At trial, Ms. Travis testified she took vaginal swabs from an
    initially distraught and tearful CA immediately after the reported sexual
    abuse.  Another government expert witness, Mr. Delmar Price, testified
    those swabs contained semen which, when subjected to Deoxyribonucleic Acid
    (DNA) analysis, indicated a genetic match to appellant.  Thereafter, an
    expert in statistical genetics, Dr. Christopher Basten, testified that
    frequency of that genetic match in the population is one in twenty-one
    quadrillion (i.e., “a 21 followed by 15 zeroes”).  He also stated it was
    forty-one billion times more likely the samples demonstrated a pairing of
    CA and appellant, rather than CA and an unknown individual.  See United
    States v. Allison, 
    63 M.J. 365
     (C.A.A.F 2006) (DNA evidence and statistical
    analysis of serological findings are admissible at a court-martial).  Of
    equal importance, the DNA profiles of only two individuals were obtained
    from the vaginal swabs, the semen DNA and the victim’s DNA.
    Additionally, the inadmissible portion of Ms. Travis’s “testimony was
    cumulative” with other evidence properly admitted at trial.  Van Arsdall,
    
    475 U.S. at 684
    .  During the defense case, MA, who is appellant’s wife and
    CA’s mother, largely duplicated Ms. Travis’s testimony on CA’s report of
    sexual assault and the identification of her father as the perpetrator.  MA
    testified CA called her in Germany, where MA was visiting, and reported
    being raped by appellant.  MA did not believe her daughter because CA
    previously reported, then recanted, a claim of sexual assault by another
    individual.  Nevertheless, MA told CA to call the police.  The patrol
    officer testified he responded to the call, approached CA, and she broke
    down and cried intermittently for the entire two hours they were on the
    scene together.
    Finally, the “evidence against appellant [was] so overwhelming and
    [appellant’s] defense so incredible” as to make Ms. Travis’s inadmissible
    testimony inconsequential.  United States v. Velez, 
    22 M.J. 637
    , 640
    (A.C.M.R. 1986).  The defense case consisted principally of attacking CA’s
    credibility, with several witneses, including members of CA’s family,
    testifying she was a liar.  The defense then attempted to explain the
    presence of appellant’s sperm and DNA evidence in the victim’s vagina by
    presenting evidence of CA recanting her allegations against appellant over
    a year after the allegation first arose.  MA testified CA explained to her,
    “the only way that I can think of, that the DNA came out like that, because
    I have been using your vibrator.”  MA further testified she had sex with
    appellant, followed by use of a penis-shaped vibrator, approximately a week
    before the incident and put the vibrator back in its box without wiping it
    off.  We find this scenario utterly incredible and illogical, in part,
    because none of MA’s DNA was recovered from the victim’s vagina.
    We find the improperly admitted hearsay testimony of Ms. Travis
    harmless beyond a reasonable doubt.  See generally United States v. Mason,
    
    59 M.J. 416
    , 425 (C.A.A.F. 2004) (affirming in spite of constitutional
    error given the “overwhelming” evidentiary strength of the DNA evidence);
    cf. United States v. Saintaude, 
    61 M.J. 175
    , 182-83 (C.A.A.F. 2005) (no
    prejudicial error to support a claim of ineffective assistance of counsel
    where forensic evidence matched appellant’s sperm to material extracted
    from a victim during sexual assault exam).
    On consideration of the entire record, including the assignments of
    error and matters personally asserted by appellant pursuant to United
    States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), the findings of guilty and
    the sentence are affirmed.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    -----------------------
    [1] Appellant was convicted of incest in violation of Article 134, Uniform
    Code of Military Justice, 
    10 U.S.C. § 934
     [hereinafter UCMJ].  Pursuant to
    Rule for Courts-Martial 917, the military judge entered findings of not
    guilty to rape and forcible sodomy offenses alleged as violations of
    Articles 120 and 125, UCMJ.
    [2] We note that neither CA nor appellant testified at trial.
    

Document Info

Docket Number: ARMY 20021439

Filed Date: 4/22/2008

Precedential Status: Non-Precedential

Modified Date: 4/17/2021