United States v. Gallardo
201500199
| N.M.C.C.A. | Sep 29, 2016Background
- Appellant (stepfather) was tried by a general court-martial and convicted, contrary to plea, of one specification of sexual assault of a child (digital penetration) occurring between 16–17 May 2013; acquitted of other specifications. Sentence: 16 years confinement, reduction to E‑1, forfeitures, dishonorable discharge (discharge not executed).
- Victim (SA), age 5 at time of alleged offenses, displayed behavioral changes; mother twice found appellant sleeping in SA’s bed in May 2013; SA disclosed to her grandmother on the morning after the second discovery that “my daddy touched my coocoo.”
- Forensic evidence: pediatric exam showed abrasions consistent with digital penetration; genital and underwear swabs contained DNA consistent with appellant and seminal fluid (no sperm). SA gave two recorded forensic interviews (17 May and 11 June 2013); the second added allegations of penile penetration.
- Defense highlighted possible improper influence/coaching by SA’s grandmother and others and sought exclusion of the recorded interviews as prior consistent statements; also sought a defense expert psychologist to testify about child suggestibility and to challenge SA’s statements.
- Military judge admitted both forensic interview recordings as prior consistent statements under Mil. R. Evid. 801(d)(1)(B), found the evidence legally and factually sufficient for the digital‑penetration conviction, and denied the defense’s motion to compel an expert psychologist as unnecessary. Appellate court affirmed.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility of recorded forensic interviews as prior consistent statements | Defense: recordings are hearsay and inadmissible because alleged improper influence (by grandmother, mother, investigators) began before first interview | Prosecution: recordings preceded many alleged improper influences and rebut charges of recent fabrication/influence under Mil. R. Evid. 801(d)(1)(B) | Court: Admission was not an abuse of discretion; interviews preceded multiple alleged influences and could rebut them (citing Tome/Morgan/Allison) |
| Legal and factual sufficiency of evidence for sexual assault of a child (digital penetration) | Defense: evidence insufficient given suggestibility allegations and possible fabrication/coaching by grandmother | Govt: SA’s detailed disclosures, physical injuries, DNA evidence, behavioral changes, appellant’s admissions supported conviction | Court: De novo review finds evidence legally and factually sufficient to support conviction for digital penetration |
| Denial of defense request for expert psychologist on suggestibility | Defense: expert necessary to explain child suggestibility; denial deprived appellant of necessary assistance and risked unfair trial | Govt: defense counsel could adequately cross‑examine and present suggestibility themes without the expert; expert not proven necessary | Court: No abuse of discretion in denying expert; judge’s findings not clearly erroneous and any error harmless given defense cross‑examination and record |
Key Cases Cited
- Tome v. United States, 513 U.S. 150 (admissibility of prior consistent statements to rebut charges of recent fabrication)
- United States v. Morgan, 31 M.J. 43 (prior consistent forensic interview admissible where it predated later alleged influences)
- United States v. Allison, 49 M.J. 54 (CAAF affirmed admission of recorded forensic interview under Mil. R. Evid. 801(d)(1)(B))
- Jackson v. Virginia, 443 U.S. 307 (legal sufficiency standard for convictions)
- United States v. Freeman, 65 M.J. 451 (standard for requiring expert assistance and when denial is not an abuse of discretion)
- United States v. Garries, 22 M.J. 288 (entitlement to investigative/expert assistance when necessary for adequate defense)