CAAF decided the Air Force case of United States v. McIntosh, 74 M.J. 294, No. 14-0685/AF (CAAFlog case page) (link to slip op.), on Wednesday, July 8, 2015. The court rejects the appellant’s claim of ineffective assistance of counsel, finding that there was a tactical reason for the appellant’s defense team to not seek the admission of sexual assault examination reports. CAAF affirms the decision of the AFCCA and the appellant’s child sexual assault convictions.
Judge Stucky writes for a unanimous court.
CAAF granted review to determine:
Whether Appellant received ineffective assistance when defense counsel failed to introduce evidence which strongly corroborated the defense theory that the allegations in this case were false.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed members with enlisted representation, of rape of a child, aggravated sexual abuse of a child, assault with the intent to commit rape, and of communicating a threat, in violation of Articles 120 and 134. He was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The child subject of the allegations was Appellant step-daughter, and the charges alleged assaults from 2005 to 2010.
The prosecution’s case was based on witness testimony and not physical evidence. But there were sexual assault examinations conducted in 2007 and 2010 that indicated that the child’s “genitalia were ‘without abnormality’ (2007 SANE report) and ‘normal’ (2010 SANE report).” Slip op. at 4. The results of these examinations were not admitted into evidence by either side, and the appellant asserted on appeal that his counsel’s failure to admit them constituted ineffective assistance of counsel. The appellant based his claim on the argument 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.” Slip op. at 4.
The Air Force CCA rejected this claim, concluding that there are reasonable explanations for the defense decision to not seek admission of the reports. In yesterday’s opinion, CAAF agrees.