Name: Jeffrey G. Toohey
Case: U.S. v. Toohey NMCCA 200001621
Sentence adjudged 13 August 1998
Decided 30 September 2004
Plea: Not Guilty
Charges: Rape and assault consummated by a battery
Military Branch: U.S. Marines
Listed In National Sex Offenders Registry? Yes, North Carolina
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Jeffrey G. Toohey
Staff Sergeant (E-6), U.S. Marine Corps
Convicted Sex Offender
Rape and Assault Consummated By a Battery
A general court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of rape and assault consummated by a battery, in violation of Articles 120 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 928. The appellant was sentenced to a dishonorable discharge, confinement for 12 years, forfeiture of all pay and allowances, and reduction to pay grade E-1. The convening authority approved the sentence as adjudged.
The alleged rape occurred in a van driven by the appellant, after he and JT left a bar together. There are no other eyewitnesses to the rape or the assault. JT testified that she trusted the appellant to give her a ride home because she often dealt with Marines at her job as a waitress, and they were always very polite and respectful. She had no reason to believe that the appellant intended to harm her in any way, based upon their conversation that night. As the appellant drove away from the bar, the two continued to talk and listen to the radio.
The appellant then pulled over along a residential street and shut off the van. He moved toward the back of the van and told JT to join him. She said no. He again asked her to join him and she got up between the two front seats. She does not remember being struck, but lost consciousness. When she awoke, she was on her back with her head at the rear of the van. The appellant was standing over her. He pulled down her pants and panties with one hand, then penetrated her. She was still too groggy from the blow to resist him. After a very short while, the appellant seemed to lose interest and went back to the driver's seat of the van. JT gathered up her belongings and left the vehicle. She recognized the location as the Pentagon parking lot. She walked across the parking lot, still dazed, and found a Defense Protective Service (DPS) squad car and requested assistance. She initially disclosed only the assault. Then, several minutes later, she told the DPS officer that she also had been raped.
The appellant, conversely, testified that the intercourse was consensual, albeit brief and hurried. Afterwards, the appellant informed JT that he was married, a fact that he had deliberately concealed during the evening, prompting JT to slap him. The appellant then responded by striking JT in the head, after which she walked away from his vehicle, and he left her in the parking lot of the Pentagon.
An examination by a Sexual Assault Nurse Examiner revealed a 2-3 centimeter abraided area at the 6 o'clock position on JT's posterior fourchette. The nurse testified for the prosecution that this injury was consistent with a "mounting injury" resulting from forcible intercourse. The defense expert, an experienced Navy doctor, believed that the injuries could also be from consensual intercourse, but conceded that the injuries could also be consistent with rape. JT's pants, which she described as in good condition prior to the assault, showed torn elastic in the waistband, consistent with her account of the appellant violently pulling her pants down. A bloodstain on the back of the appellant's shirt was a DNA match with JT. Photographs of JT show where blood had rolled back along her face, toward her ear, consistent with bleeding while lying on her back.
Ultimately, however, this case hinged on the credibility of JT and the appellant. The appellant, by his own admission, lied or misled both his wife and his officer-in-charge about his actions on that night. His testimony that he struck JT only once defies common sense, given the extent of her facial injuries. Most importantly, a brief consensual sexual encounter is unlikely to have suddenly turned violent as the appellant described it. We also regard the appellant's actions of leaving JT, alone and bleeding, in a deserted parking lot after midnight in the middle of winter, as indicative of a callous disregard for JT's well-being.
The military judge ruled that if the appellant offered testimony of his character for peacefulness, the trial counsel would be allowed to cross-examine those witnesses about the appellant's possession of child pornography. We agree with the appellant that this ruling was erroneous, but conclude that the error was not materially prejudicial to a substantial right of the appellant. Art. 59(a), UCMJ.
Specifically, there are a series of photographs that are in the Article 32 that obviously would be attached to the record . . . They are color photographs, and they depict rather graphically sodomy with young children from age 10 purportedly up through 16 or so. There are some that are more egregious than others. Specifically Investigative Exhibit 19, photograph J, which depicts a purported 14 year-old being anally sodomized and that conduct depicted in those pictures is non consensual as a matter of law conduct; and, therefore, if the defense was to put on a character for peaceableness [sic], that would open the door for impeachment in that area.
Possession of child pornography clearly is unlawful and enjoys no First Amendment protection. See 18 U.S.C. § 2252; New York v. Ferber, 458 U.S. 747 (1982). However, courts walk a dangerously fine line when allowing literature or photographs depicting a particular act to create an inference that the possessor has a propensity to commit such acts. Cf. United States v. Holt, 170 F.3d 698 (7th Cir. 1999)(holding it was error to permit questions regarding the defendant's books on weapon modification as rebuttal of character for law abidingness); Guam v. Shymanovitz, 157 F.3d 1154, 1158 (9th Cir. 1998)(stating that "the mere possession of reading material that describes a particular type of activity makes it neither more nor less likely that a defendant would intentionally engage in the conduct described and thus fails to meet the test of relevancy under Rule 401."). Likewise, evidence of generalized sexual deviancy or dispositions, rather than those specifically related to the charged offense, is disfavored. Cf. Whitner, 51 M.J. at 462 (Effron, J., concurring in part and in the result); United States v. Gagan, 43 M.J. 200 (C.A.A.F. 1995). In this case, we conclude that the military judge abused his discretion.
First, the pornographic images were not closely related in time, space, or nature to the charged offenses. The images were seized from the appellant's home computer in North Carolina, while the alleged rape and assault occurred in the Washington, D.C. area. The photographs depict teenage or preteen girls, while JT, the alleged victim in this case, was 31 years of age. The photo prompting a specific comment from the military judge depicted anal sodomy, while the appellant was never accused of that offense. The military judge drew a nexus between photographs depicting minors engaging in sexual activity to a lack of consent, which is an element of rape. Factually, however, the circumstances surrounding the alleged rape are noticeably dissimilar from the imagery in the pornographic photos. While the latter are extraordinarily distasteful, they do not appear to depict physical force or violence against the young girls. This is a significant qualitative difference between the acts depicted in the photographs and those of which the appellant was accused. We conclude that the appellant's possession of images depicting sexual acts with young girls does not make it more likely that he would commit a violent, physical assault upon an adult woman. Cf. United States v. Nixon, 15 M.J. 1028, 1032 (A.C.M.R., 1983)(holding that a conviction for unauthorized absence does not rebut evidence of peacefulness).
. . . Accordingly, the findings of guilty and sentence, as approved by the convening authority below, are affirmed.
