Marion H. Tanksley Captain Doctor U.S. Navy Convicted Sex Offender Indecent Liberties With A Child

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Name: Marion H. Tanksley

Case: United States v. Tanksley No. 99-0666 Crim. App. No. 96-1402

Date Of Conviction: March 01, 1995

Plea: Not Guilty

Charges: Indecent Liberties With A Child

Military Branch: U.S. Navy

Listed In National Sex Offenders Registry? YES - Here

Chief Judge CRAWFORD delivered the opinion of the Court.

Contrary to his pleas, Captain Tanksley, a Navy doctor, was convicted of violating a lawful general regulation, five specifications of making false official statements, taking indecent liberties with a female under the age of 16, obstructing justice by communicating a threat, and false swearing, in violation of Articles 92, 107, and 134, Uniform Code of Military Justice, 10 USC §§ 892, 907, and 934.

The members sentenced appellant to confinement for 38 months, forfeiture of $3,500 pay per month for 30 months, and dismissal. The convening authority approved the sentence as adjudged but suspended the adjudged forfeitures for a period of 12 months, conditioned on appellant providing them by allotment to his wife. The Court of Criminal Appeals affirmed. 50 MJ 609 (1999).

In 1959, appellant married Loni Ruth Tanksley. Together they had four daughters: E (born in 1960); J (born in 1961); M (born in 1968); and H (born in 1970). Appellant and Loni divorced in 1980 amid allegations of physical and mental abuse, as well as sexual abuse of his daughters. The older girls (E and J) had already fled the home before the divorce.

Appellant subsequently married Kelly, and together they had a daughter, P. In August 1993, appellant, Kelly, and P, now 6 years old, were visiting appellant's daughters, M and H, in Lake Charles, Louisiana. During the course of this visit, H observed her father in the bathroom with P for a long period of time, ostensibly taking a shower. H saw P towel drying her nude father. H discussed what she had seen with her sister M. Although appellant had never sexually abused M, M knew of the extensive sexual abuse that appellant had allegedly inflicted upon her older sisters prior to their leaving the home in 1976 and 1977.

In a subsequent conversation between M and her sister J, M told J about the visit, about their father still drinking throughout the day, and about the shower episode with P, witnessed by H. This conversation purportedly brought back vivid, emotional memories for J, who had been abused at a young age in the bathtub by appellant. J contacted authorities in Virginia, who started both criminal and social services type investigations.

On July 5, 1994, appellant was relieved of his medical duties at the Naval Air Station, Oceania, and temporarily assigned to the Naval Base in Norfolk.

On December 21, 1993, appellant was interviewed by Special Agent Dillard of the Defense Investigative Service (DIS). This particular interview was one of many conducted by both Naval Criminal Investigative Service (NCIS) and DIS agents after abuse allegations were leveled against appellant by ex-wife Loni and daughters E and J around 1980.

Evidence offered under Mil.R.Evid. 404(b) is considered under a three-part test. Under the second part of the test, the proffered evidence must make a fact of consequence more or less probable. Reynolds, supra at 109. The Government asserts that the 30-year-old events involving J demonstrated that appellant took a shower with P to gratify his sexual desires. The Government's theory is that appellant had "conditioned" J for later sexual acts with the abuse during bathing and that the cycle was beginning anew with P.

To the extent that our Court has permitted "conditioning" as a basis for admission of evidence, we have viewed it as involving planned acts or behavior implemented to achieve a desired end. In the context of 404(b) evidence, we have held that uncharged acts "must be almost identical to the charged acts" to be admissible as evidence of a plan or scheme. United States v. Morrison, 52 MJ 117, 122 (1999); United States v. Brannan, 18 MJ 181, 183 (CMA 1984).

In the present case, there is a degree of similarity between the charged acts and the acts from 30 years in the past in terms of the age of the alleged victims and their relationship to appellant. There are significant differences, however, in terms of the nature of the acts and the surrounding circumstances. With respect to the 30-year-old events, J testified that appellant washed her in the bathtub and digitally penetrated her. There is nothing in the record to suggest similarity to the key aspects of the charged offense. There is no evidence that appellant was nude when he bathed J, that he bathed with her, that he exposed himself to her, or that others were aware of his actions. In contrast to the 30-year-old allegation, which involved only appellant and his daughter, the circumstances of the charged offense were not kept secret from the family. P was directed by her mother, in front of other family members in a relative’s home, to take a shower with her father, to dry her father,1 and to respond to her father when he later asked her who loved her. In further contrast to the earlier event, there was no evidence of any improper physical contact.

The Government’s theory would require us to hold that when this father took a shower with his 6-year-old daughter, he did so to gratify his sexual desire because he physically abused a different daughter 30 years earlier. As the majority opinion states, "a pattern of lustful intent" can be used by the factfinder to infer lustful intent for a separate charge. The key, however, is finding a pattern, which the evidence does not establish in this case. The acts upon which the Government's theory is based are not sufficiently similar to constitute a "plan" of conditioning and, therefore, are not admissible under Mil.R.Evid. 404(b).

With respect to the sentence, I note that appellant was also convicted of violating a lawful general regulation, five specifications of false official statements, and endeavoring to impede an investigation and intimidate witnesses. The maximum confinement possible for appellant for all offenses, including the indecent liberties charge, was 42 years. Without the indecent liberties charge, the maximum was 35 years. Appellant received a sentence of dismissal, confinement for 38 months, and forfeitures. It is noteworthy that J’s testimony regarding abuse was admissible independently on the merits for one of the false official statements specifications, so the specter of crimes of sexual perversion was already before the members when they considered appellant’s sentence on the other charges.

Because the indecent liberties charge was not the only crime that involved evidence of aberrant sexual behavior in this case, added to the fact that the appellant received a relatively brief period of confinement in the context of the allowable maximum, I would conclude that the error was not prejudicial as to sentence.

Tanksley served as the administrative director of the Oceana Branch Medical Clinic. He spent eight months before trial in the brig at the Norfolk Naval Station in Norfolk, Virginia and 19 more in the federal penitentiary at Fort Leavenworth, Kansas.

Later he had a medical practice in Virginia, then his license was revoked, then reinstated. Last known, he fled the U.S. and is teaching English in China.