United States v. Specialist DRAKE S. MCANINCH ( 2019 )


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    UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    MULLIGAN, FEBBO, and SCHASBERGER
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Specialist DRAKE S. MCANINCH
    United States Army, Appellant
    ARMY 20170091
    Headquarters, United States Army Alaska
    Jeffrey Lippert and Lanny J. Acosta, Jr., Military Judges
    Colonel Erik L. Christiansen, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Zachary Spilman,
    Esquire (on brief and reply brief).
    For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
    JA; Major Hannah E. Kaufman, JA; Captain Meredith M. Picard, JA; Captain Jessika
    M. Newsome, JA (on brief).
    1 April 2019
    ---------------------------------------------------------------
    MEMORANDUM OPINION ON FURTHER REVIEW
    ---------------------------------------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .
    MULLIGAN, Senior Judge:
    Appellant confessed to raping a four-year-old boy and producing child
    pornography of his victim. Appellant argues the military judge erred by admitting
    two forensic interviews of appellant’s victim over appellant’s objection. Appellant
    also argues that the evidence was insufficient to convict him of producing child
    pornography. We disagree.
    A military judge sitting as a general court-martial convicted appellant,
    contrary to his pleas, of three specifications of rape of a child under twelve years of
    age, one specification of sexual abuse of a child under twelve years of age, and one
    specification of producing child pornography, in violation of Articles 120b and 134,
    Uniform Code of Military Justice, 10 U.S.C. §§ 920b and 934 (2012) [UCMJ]. The
    MCANINCH—ARMY 20170091
    military judge 1 sentenced appellant to a dishonorable discharge, twenty-four years of
    confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1.
    The convening authority approved the findings and sentence as adjudged except that
    he approved only so much of the sentence to confinement as provided for twenty-
    three years and eleven months of confinement. Following remand for a new staff
    judge advocate recommendation and action, appellant’s case is now before us for
    review pursuant to Article 66, UCMJ.
    Of eight assignments of error raised by appellant, we will discuss two. First,
    whether the military judge erred by admitting video recordings of two forensic
    interviews of appellant’s child-victim. Second, whether appellant’s conviction of
    producing child pornography was legally and factually insufficient. We answer both
    questions in the negative and affirm appellant’s convictions and sentence. 2
    BACKGROUND
    According to appellant’s own written confession, appellant attended a party
    hosted by the parents of KP, a four-year-old boy. KP considered appellant a friend
    and asked appellant to play video games in his room. After playing video games for
    some time, appellant told KP that he had a “secret game” to play. Appellant
    removed KP’s clothes and took photographs of KP’s buttocks and “a full body
    picture of the front of him completely naked” for appellant “to keep.” 3 He then
    placed KP’s penis in his mouth, placed his penis in KP’s mouth, rubbed his genitals
    on KP’s buttocks, and penetrated KP’s anus with his penis. Appellant warned KP
    that “he shouldn’t talk about” the “secret game” with anyone else.
    KP’s mother testified she remembered once, during a party, finding KP and
    appellant in KP’s room with the door closed. She recalled appellant’s pants zipper
    1
    Corrected
    2
    We have considered the other six assignments of error raised by appellant on brief
    and the matters personally raised by appellant under United States v. Grostefon, 
    12 M.J. 431
    (C.M.A. 1982). We find they merit neither discussion nor relief. We have
    also considered appellant’s claim of dilatory post-trial processing under United
    States v. Moreno, 
    63 M.J. 129
    (C.A.A.F. 2006), which appellant raised in a footnote.
    We have factored into our consideration appellant’s motion for expedited appellate
    review. We find appellant has suffered no actual prejudice due to delay in the post-
    trial processing of his case. We further find no other relief for the delay is
    warranted under Article 66, UCMJ.
    3
    The photographs were never recovered. Appellant reported that he deleted the
    photographs later on the day he took them and subsequently destroyed his phone.
    2
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    was down. Appellant claimed his zipper was broken and hurried into a nearby
    bathroom claiming he needed to fix it. When KP’s mother asked what appellant and
    KP were doing, KP stated he and appellant “were playing a secret game.” Appellant
    then told KP’s mother the “secret game” was a secret level in a video game he had
    been playing with KP.
    Later, KP was discovered placing his penis in the mouth of a four-year-old
    girl. When asked where he got the idea to place his penis in the girl’s mouth, KP
    responded: “It’s a secret. We don’t talk about it.” The next day, KP admitted that
    appellant taught him “the game” where he put his penis in someone else’s mouth.
    After KP reported that appellant had taught him the “secret game,” KP was
    interviewed twice by a trained child forensic interviewer. The forensic interviewer
    used a nationally recognized protocol for interviewing children. The interviewer
    ensured KP understood the difference between the truth and falsehood, and
    emphasized the importance of KP telling the truth.
    During the interviews, KP said he was there to talk about the “game” and said
    it was a “secret” before any such game was mentioned by the interviewer. KP went
    on to identify various body parts on anatomically correct diagrams. KP told the
    interviewer that appellant played the “secret game” with him. KP explained the
    “secret game” involved sucking on “wieners,” that “wieners” “get bigger,” and that
    appellant “broke” KP’s “butt” with appellant’s “wiener.” During the interviews, KP
    demonstrated the “secret game” with anatomically correct dolls.
    At trial, KP, who was seven years old at that point, testified that he and
    appellant had played the “secret game,” which involved “the weird stuff” with “the
    butt and the wiener.” KP was unable or unwilling to recall other details at trial and
    testified that he was “scared to talk about it.”
    Based on KP’s inability or unwillingness to testify, the government moved to
    admit video recordings of KP’s forensic interviews about the “secret game.” The
    government offered the recordings under the residual exception to the rule against
    hearsay found in Military Rule of Evidence (Mil. R. Evid.) 807.
    The military judge made extensive findings of fact relating to the recorded
    interviews and admitted them over appellant’s objection that the recordings were
    hearsay. The military judge found the residual exception of Mil. R. Evid. 807
    applied to the recorded interviews.
    Appellant testified in his own defense and claimed that he was innocent and
    that he had lied to investigators when he confessed to raping KP. Appellant was
    convicted and sentenced as discussed at the beginning of this opinion.
    3
    MCANINCH—ARMY 20170091
    LAW AND DISCUSSION
    Two of appellant’s assignments of error merit discussion. We will address
    them in-turn.
    First, appellant argues the military judge abused his discretion by admitting
    video recordings of two forensic interviews of the child-victim under the residual
    hearsay exception. We conclude the military judge did not abuse his discretion by
    admitting the recordings. Further, even if the military judge had erroneously
    admitted the recordings, appellant was not prejudiced because appellant’s confession
    was otherwise corroborated and the evidence against appellant was overwhelming.
    Second, appellant argues his conviction of producing child pornography was
    legally and factually insufficient. We disagree. The circumstances surrounding
    appellant’s photography of the naked child who appellant raped leave no doubt as to
    the sexual nature of the images appellant produced.
    A. The Residual Exception to the Hearsay Rule
    We review a military judge’s decision to admit evidence under Mil. R. Evid.
    807 for an abuse of discretion. United States v. Czachorowski, 
    66 M.J. 432
    , 434
    (C.A.A.F. 2008) (citations omitted). “Findings of fact are affirmed unless they are
    clearly erroneous; conclusions of law are reviewed de novo.” 
    Id. A military
    judge
    has “considerable discretion” in admitting residual hearsay. United States v. Kelley,
    
    45 M.J. 275
    , 280-81 (C.A.A.F. 1996) 4 (citing United States v. Pollard, 
    38 M.J. 41
    ,
    49 (C.A.A.F. 1993)).
    A hearsay statement may be admitted under Mil. R. Evid. 807 if the proponent
    of the statement provides reasonable notice under Mil. R. Evid. 807(b) and:
    4
    On brief, appellant argues this quotation from Kelley “is a misstatement of the
    law.” Appellant argues our superior court misstated the law because Kelley cited to
    Pollard, which itself cited to United States v. Powell, 
    22 M.J. 141
    , 145 (C.M.A.
    1986), which stated, “a trial judge has considerable discretion in determining the
    trustworthiness of a statement [under the residual exception to the hearsay rule].”
    
    Id. (emphasis added).
    In other words, appellant claims our superior court misstated
    the law by publishing a precedential opinion, in which it relied upon its own prior
    precedential opinion, which may have expanded upon yet another of its own prior
    precedential opinions. Far from misstating the law, what our superior court writes in
    precedential opinions defines the law binding upon this court.
    4
    MCANINCH—ARMY 20170091
    (1) The statement has equivalent circumstantial
    guarantees of trustworthiness [to the hearsay exceptions
    found in Mil. R. Evid. 803 or 804];
    (2) it is offered as evidence of a material fact;
    (3) it is more probative on the point for which it is
    offered than any other evidence that the proponent can
    obtain through reasonable efforts; and
    (4) admitting it will best serve the purposes of these rules
    and the interests of justice.
    Mil. R. Evid. 807(a). “The residual hearsay rule sets out three requirements for
    admissibility: (1) materiality, (2) necessity, and (3) reliability.” 
    Kelley, 45 M.J. at 280
    (discussing a prior version of the rule) (citations omitted). The materiality
    prong “is merely a restatement of the general requirement that evidence must be
    relevant.” United States v. Peneaux, 
    432 F.3d 882
    , 892 (8th. Cir. 2005) (citations
    and internal quotation marks omitted). Appellant does not dispute materiality. The
    necessity prong “requires the proponent of the evidence to show he could not obtain
    more probative evidence despite reasonable efforts.” 
    Czachorowski, 66 M.J. at 435
    .
    The reliability prong requires that a hearsay statement possesses “circumstantial
    guarantees of trustworthiness,” as stated in the text of the rule. United States v.
    Giambra, 
    33 M.J. 331
    , 333 (C.M.A. 1991). 5
    Appellant contends the military judge erred for two reasons: First appellant
    argues KP’s hearsay statements were not more probative on the point for which they
    were offered than any other evidence that the government could obtain through
    reasonable efforts. Put differently, appellant disputes the “necessity” prong of
    Kelley. Second, appellant argues KP’s hearsay statements did not possess sufficient
    circumstantial guarantees of trustworthiness. Put differently, appellant also disputes
    that “reliability” prong of Kelley. We disagree with both arguments. A third matter
    also bears discussion: even if the military judge had abused his discretion by
    admitting the forensic interviews, the error would have been harmless.
    1. Necessity: The Relative Probative Value of the Forensic Interviews
    Appellant contends that the government was required to both attempt and fail
    to refresh KP’s memory at trial prior to offering the forensic interviews under Mil.
    R. Evid. 807. We find no such requirement, particularly under the circumstances of
    this case.
    5
    While the text of the residual exception has changed slightly since the cases upon
    which we draw guidance, the analysis in those cases remains sound.
    5
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    The necessity prong does not require that the proffered evidence be
    “necessary” to prove the proponent’s case. Rather, the necessity prong “essentially
    creates a ‘best evidence’ requirement.” 
    Kelley, 45 M.J. at 281
    (quoting Larez v. City
    of Los Angeles, 
    946 F.2d 630
    , 644 (9th Cir. 1991)). In other words, the proffered
    hearsay must be the most probative version of the declarant’s account of events
    reasonably available to the hearsay proponent. In this case, the necessity prong
    requires that the forensic interviews of KP be the most probative source of KP’s
    account reasonably available. Even then, the “residual hearsay may be ‘somewhat
    cumulative.’” 
    Id. (quoting United
    States v. Shaw, 
    824 F.2d 601
    , 609 (8th Cir.
    1987)).
    Appellant objected to admission of the forensic interviews at trial. Appellant,
    however, did not claim at trial that the government was required to attempt to
    refresh KP’s recollection prior to asserting the Mil. R. Evid. 807 hearsay exception.
    This is unsurprising given the fact that successfully refreshing KP’s recollection
    would have potentially yielded more damaging evidence than the forensic interviews
    themselves.
    We need not speculate on whether KP’s memory could have been refreshed.
    The military judge found that KP testified he could not remember—or was scared to
    discuss—many of the factual details of his abuse by appellant. The military judge,
    who personally witnessed KP’s testimony, credited KP’s assertion that he could not
    or would not remember the events in question. Accordingly, the military judge
    found the forensic interviews were the most probative source of the evidence at
    issue. The military judge’s factual findings were not erroneous and his conclusions
    of law were sound.
    The military judge was within his discretion when he found the recordings of
    the forensic interviews were more probative on the point for which they were offered
    than any other evidence that the government could obtain through reasonable efforts.
    Put differently, the military judge was within his discretion to find the recordings
    fulfilled the “necessity” prong of Kelley.
    2. Reliability: Circumstantial Guarantees of Trustworthiness
    In evaluating whether a child’s hearsay is reliable, the Supreme Court has
    identified several non-exclusive factors that courts may consider: spontaneity of the
    statements; consistent repetition of the statements; the mental state of the declarant;
    the use of terminology unexpected of a child of similar age; and lack of motive to
    fabricate. Idaho v. Wright, 
    497 U.S. 805
    , 821-822 (1990). The Court went on to
    explain: “These factors are, of course, not exclusive, and courts have considerable
    leeway in their consideration of appropriate factors. We therefore decline to endorse
    a mechanical test . . . .” 
    Id. at 822.
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    Appellant argues KP’s statements in the forensic interview fail all of the
    Supreme Court’s Wright factors. The military judge disagreed. So do we.
    The military judge found: “The setting of the statements, including the
    reassurance of the interviewer to the declarant that he was in a safe place to talk, to
    only tell about real things, and that the declarant on his own revealed that his
    parents told him [sic] the truth, all favor the trustworthiness of the statements.” The
    military judge also found: “KP appeared comfortable in the setting, and spoke
    naturally and appeared completely unrehearsed or coached.” The military judge
    concluded: “The interviewer asked open ended questions and the court is satisfied
    based upon viewing the videos and the testimony of the interviewer that there was
    no suggesting of the events to [KP]. Additionally, the evidence presented
    demonstrates that [KP] had no motive to fabricate . . . .” We also find it significant
    that, while the terminology KP used may not have been unexpected of a child of his
    age, his descriptions of appellant’s conduct with him certainly are. No child of KP’s
    age is expected to describe a “secret game” of oral and anal sodomy.
    The military judge was within his discretion to find the interviews carry
    sufficient circumstantial guarantees of trustworthiness to satisfy the “reliability”
    prong of Kelley. We are equally satisfied the forensic interview recordings satisfy
    the “materiality” prong of Kelley. Accordingly, the military judge did not abuse his
    discretion by admitting the recordings of the forensic interviews.
    3. Harmlessness in Light of Appellant’s Independently Corroborated Confession
    While we find the forensic interviews of KP were properly admitted, we also
    find any hypothetical error in admitting the interviews would be harmless.
    Appellant made a written confession to his crimes. In it, he described the “secret
    game” he played with KP. Appellant confessed the “secret game” included appellant
    orally and anally sodomizing KP.
    While KP’s testimony at trial was limited, he testified that appellant played a
    “secret game” with him that involved “the butt and the wiener.” KP also acted out
    the oral sodomy appellant inflicted on him with another child and, upon discovery,
    described it as a “secret” “game.” KP’s mother also testified about finding appellant
    in KP’s room with the door closed, and appellant’s pants zipper down. She testified
    KP told her he and appellant had been playing a “secret game.” We conclude the
    combined weight of this evidence was sufficient to corroborate appellant’s
    confession for the purposes of Mil. R. Evid. 304(c). In other words, KP’s actions
    leading to his outcry, combined with his and his mother’s testimony at trial,
    establish the trustworthiness of appellant’s confession. See Mil. R. Evid. 304(c).
    Appellant’s confession is compelling and renders his subsequent recantation
    unbelievable. Appellant’s detailed, corroborated confession constituted
    7
    MCANINCH—ARMY 20170091
    overwhelming evidence of his guilt, independent of the content of KP’s forensic
    interviews. Thus, even if we had found the military judge abused his discretion by
    admitting the content of the forensic interviews, we would find any such error
    harmless.
    B. Producing Child Pornography
    We review questions of factual and legal sufficiency de novo. United States
    v. Bright, 
    66 M.J. 359
    , 363 (C.A.A.F. 2008). The test for legal sufficiency is
    whether, “considering the evidence in the light most favorable to the prosecution, a
    reasonable factfinder could have found all the essential elements beyond a
    reasonable doubt.” United States v. Turner, 
    25 M.J. 324
    (C.M.A. 1987). The test
    for factual sufficiency is “whether, after weighing the evidence in the record of trial
    and making allowances for not having personally observed the witnesses, [we] are
    [ourselves] convinced of [appellant’s] guilt beyond a reasonable doubt.” 
    Id. at 325.
    Appellant confessed to taking nude photographs of KP. Appellant argues,
    however, that the government failed to prove any such nude images of KP
    constituted child pornography. We disagree.
    Child pornography is defined as “material that contains either an obscene
    visual depiction of a minor engaging in sexually explicit conduct or a visual
    depiction of an actual minor engaging in sexually explicit conduct.” Manual for
    Courts-Martial, United States (MCM), pt. IV, para. 68b.c.(1) (2012 ed.). “Sexually
    explicit conduct” includes “lascivious exhibition of the genitals or pubic area of any
    person.” MCM, pt. IV, para 68b.c.(7). To determine whether a depiction constitutes
    a lascivious exhibition, the Dost factors are instructive:
    1) whether the focal point of the visual depiction is on the
    child’s genitalia or pubic area;
    2) whether the setting of the visual depiction is sexually
    suggestive, i.e., in a place or pose generally associated
    with sexual activity;
    3) whether the child is depicted in an unnatural pose, or
    in inappropriate attire, considering the age of the child;
    4) whether the child is fully or partially clothed, or nude;
    5) whether the visual depiction suggests sexual coyness or
    a willingness to engage in sexual activity;
    6) whether the visual depiction is intended or designed to
    elicit a sexual response in the viewer.
    United States v. Dost, 
    636 F. Supp. 828
    , 832 (S.D. Cal. 1986). Military courts
    assess whether an image constitutes child pornography “by combining a review of
    8
    MCANINCH—ARMY 20170091
    the Dost factors with an overall consideration of the totality of the circumstances.”
    United States v. Roderick, 
    62 M.J. 425
    , 429-30 (C.A.A.F. 2006).
    The evidence demonstrates appellant produced child pornography. Appellant
    removed KP’s clothing and took photographs of KP’s naked body, both from the
    front and from behind. The latter photographs focused on KP’s buttocks. Appellant
    intended “to keep” the images. Appellant immediately orally sodomized KP, both by
    placing KP’s penis in appellant’s mouth and by placing appellant’s penis in KP’s
    mouth. Appellant then rubbed his genitals on KP’s buttocks and anally sodomized
    him. The photographs appellant took cannot be separated from the circumstances of
    their taking. See 
    id. The circumstances
    were Specialist Drake McAninch raping KP.
    The circumstances in which appellant took the photographs closely parallel
    the Dost factors: Appellant confessed that some of the photographs were “of [KP’s]
    buttocks,” and taken shortly before appellant penetrated KP’s anus with appellant’s
    penis. The setting of the photographs was a bedroom, which is commonly associated
    with sexual activity. KP was completely nude when appellant photographed him.
    Appellant photographed KP in the context of appellant’s “secret game,” which
    involved multiple forms of sexual abuse. The photographs “of [KP’s] buttocks”
    were plainly meant to sexually arouse or gratify appellant, who took them with the
    intent to then anally sodomize KP. As for the fully-frontally-nude composition,
    appellant plainly took it also with sexual intent.
    Combining our review of the Dost factors with an overall consideration of the
    totality of the circumstances, we have little trouble concluding the images appellant
    produced constituted child pornography. We have weighed the evidence in the
    record of trial and made allowances for not having personally observed the
    witnesses. We are ourselves convinced of appellant’s guilt beyond a reasonable
    doubt.
    CONCLUSION
    The findings of guilty and sentence are AFFIRMED.
    Judge FEBBO and Judge SCHASBERGER concur.
    FOR THE
    FOR THE COURT:
    COURT:
    MALCOLM H. SQUIRES, JR.
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    Clerk of Court
    9
    

Document Info

Docket Number: ARMY 20170091

Filed Date: 4/1/2019

Precedential Status: Non-Precedential

Modified Date: 9/18/2019