UNITED STATES, Appellee

v.

Wilber J. McINTOSH Jr., Staff Sergeant

U.S. Air Force, Appellant

No. 14-0685

Crim. App. No. 37977

United States Court of Appeals for the Armed Forces

Argued April 29, 2015

Decided July 8, 2015

STUCKY, J., delivered the opinion of the Court, in which BAKER, 

C.J., and ERDMANN, RYAN, and OHLSON, JJ., joined.

Counsel

For Appellant: Captain Lauren A. Shure (argued); Major Grover 

H. Baxley (on brief).

For Appellee: Captain Thomas J. Alford (argued); Colonel 

Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).

Military Judge: Paula B. McCarron

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McIntosh, No. 14-0685/AF

2

Judge STUCKY delivered the opinion of the Court.

Appellant argues that his counsel provided ineffective 

assistance by failing to seek admission of the results of two 

potentially exculpatory physical examinations of the victim. We 

hold that trial defense counsel’s performance was not deficient 

and, therefore, not constitutionally ineffective.

I. Background

Appellant raped and assaulted his stepdaughter beginning in 

2006 and ending in April 2010. A general court-martial 

convicted him of one specification of rape of a child between 

twelve and sixteen years of age on divers occasions over a 

sixteen-month period; one specification of aggravated sexual 

abuse of a child on divers occasions over a thirty-month period; 

one specification of assault with the intent to commit rape; and 

one specification of communicating a threat, in violation of 

Articles 120 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 920, 934 (2012). The adjudged and approved 

sentence consisted of a dishonorable discharge, confinement for 

twenty-five years, forfeiture of all pay and allowances, and 

reduction to the lowest enlisted grade. The United States Air 

Force Court of Criminal Appeals affirmed. United States v. 

McIntosh, No. ACM 37977, 2014 CCA LEXIS 29, at *1, 2014 WL 

464623, at *1 (A.F. Ct. Crim. App. Jan. 17, 2014).
United States v. McIntosh, No. 14-0685/AF

3

II. Discussion

The sole issue in this case is whether defense counsel’s 

decision not to introduce into evidence two reports by Sexual 

Assault Nurse Examiners (SANE reports) amounted to ineffective 

assistance of counsel. 

As we explained in United States v. Datavs:

To establish ineffective assistance of counsel, 

an appellant must demonstrate both (1) that his 

counsel’s performance was deficient, and (2) that this 

deficiency resulted in prejudice. In reviewing for 

ineffectiveness, the Court looks at the questions of 

deficient performance and prejudice de novo. 

With respect to [the] first prong, courts must 

indulge a strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional 

assistance. 

As to the second prong, a challenger must 

demonstrate a reasonable probability that, but for 

counsel’s deficient performance the result of the 

proceeding would have been different.

71 M.J. 420, 424 (C.A.A.F. 2012) (citations omitted) (internal 

quotation marks omitted); see Strickland v. Washington, 466 U.S. 

668, 690 (1984).

Appellant argues that these requirements are satisfied, as

the two SANE reports were highly exculpatory and constituted the 

only physical evidence in a case that was otherwise premised on 

witness testimony. The first exam was completed the day the 

conduct was first discovered, when the victim’s mother walked 

into her daughter’s locked bedroom and saw Appellant undressed 
United States v. McIntosh, No. 14-0685/AF

4

with the child. The second exam took place after the victim 

reported she had been raped for multiple years, but not

immediately after any assault. The reports concluded with 

physical findings that the victim’s genitalia were “without 

abnormality” (2007 SANE report) and “normal” (2010 SANE report). 

Appellant argues 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. 

We begin by determining whether trial defense counsel’s 

performance fell within the “wide range of reasonable 

professional assistance.” Id. at 424. While defense counsel 

would normally be expected to introduce potentially exculpatory 

evidence, their performance is not deficient when a tactical 

reason cautions against admission. See Datavs 71 M.J. at 425 

(stating that “objectively reasonable” tactical decisions cannot 

constitute deficient performance); Strickland, 466 U.S. at 690 

(creating presumption that challenged action had strategic 

purpose); Jackson v. Conway, 763 F.3d 115, 154 (2d Cir. 2014),

cert. denied sub nom., Jackson v. Artus, 135 S. Ct. 1560 (2015)

(holding that decision not to introduce potentially exculpatory 

laboratory reports was not deficient performance because the 

evidence did not have any exceptional value given victim’s 

testimony that Appellant was unable to maintain an erection);
United States v. McIntosh, No. 14-0685/AF

5

see also Brown v. State, 490 S.E.2d 75, 80 (Ga. 1997)

(concluding defense counsel did not provide ineffective 

assistance in choosing not to present physical evidence from the 

crime scene that did not link defendant to the crime scene, but 

also did not rule out the possibility that he was there).

Such is the case here. As the two defense counsels’

affidavits reveal, the choice they made was a considered one, 

made after consultation with an expert in the field of SANE 

examinations and after discussion with Appellant. First, the 

defense expert confirmed opinions defense counsel had formed 

from previous cases: the lack of abnormal findings in a sexual 

assault examination does not conclusively rule out the 

possibility that a sexual assault occurred. See Lingle v. Iowa, 

195 F.3d 1023, 1025-26 (8th Cir. 1999); see also Poole v. State, 

46 So. 3d 290, 296 (Miss. 2010) (holding that evidence of intact 

hymen is not conclusive proof that no penetration occurred). 

Second, the primary defense theory was that the Government 

failed to prove the charges beyond a reasonable doubt, in part 

because the Government offered “absolutely no medical evidence

to support the testimony of the complainant.” The Government 

itself bolstered this argument by not moving to admit the 

reports. Admitting the reports would have undermined this 

tactic and opened the door to cross-examination of the SANEs to 

the effect that an intact hymen did not preclude Appellant’s 
United States v. McIntosh, No. 14-0685/AF

6

stepdaughter having been raped. Third, the 2010 SANE report 

indicates that the victim suffered pain when her genitalia were 

touched, something that a factfinder might see as evidence of 

guilt. Fourth, admission of the SANE reports would require 

discussion of the intrusiveness of the sexual assault exams --

facts the panel could possibly hold against Appellant. Under 

these circumstances, Appellant failed to overcome the strong 

presumption that counsel’s performance was within the wide range 

of reasonable professional assistance. Without deficient 

performance, there can be no ineffective assistance, and the 

inquiry is closed. 

III. Judgment

The judgment of the United States Air Force Court of 

Criminal Appeals is affirmed.