United States v. Barbary ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38941
________________________
UNITED STATES
Appellee
v.
Ricardo S. BARBARY, Jr.
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 31 May 2017
________________________
Military Judge: Shelly W. Schools.
Approved sentence: Dishonorable discharge, confinement for 12 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 3 September 2015 by GCM convened at Peterson Air Force Base,
Colorado.
For Appellant: Major Michael A. Schrama, USAF; Captain Patrick A.
Clary, USAF.
For Appellee: Major Jeremy D. Gehman, USAF; Major Meredith L.
Steer, USAF; Captain Tyler B. Musselman, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Military
Judges.
Judge C. BROWN delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge HARDING joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Barbary, No. ACM 38941
C. BROWN, Judge:
Contrary to his pleas, Appellant was convicted by a military judge sitting
alone of one specification of rape of a child under 12 years of age and four spec-
ifications of sexual abuse of a child under 12 years of age, all in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b. 1 Ap-
pellant was found not guilty of an additional specification of rape of a child, as
well as one specification of sexual abuse of a child. All of the charged offenses
involved the same victim.
Appellant was sentenced to a dishonorable discharge, 12 years of confine-
ment, forfeiture of all pay and allowances, and reduction to E-1. The convening
authority approved the sentence as adjudged. However, the convening author-
ity deferred all forfeitures of pay and allowances until action based on Appel-
lant’s request that his dependents receive some limited financial support.
Appellant raises four issues on appeal: (1) the military judge erred in ad-
mitting statements from the victim as residual hearsay under Military Rule of
Evidence (Mil. R. Evid.) 807; (2) the military judge erred in failing to disclose
Department of Human Services (DHS) records after her in camera review; (3)
the military judge erred by admitting charged offenses as propensity evidence
under Mil. R. Evid. 414; and (4) three of Appellant’s sexual abuse convictions
were factually insufficient.
On 4 April 2017, we issued an unpublished opinion where we disagreed
with Appellant as to his identified errors. United States v. Barbary, 2017 CCA
LEXIS 235 (A.F. Ct. Crim. App. 4 Apr. 2017) (unpub. op.). On 4 May 2017,
Appellant moved for reconsideration of this decision in light of United States
v. Hukill, __ M.J. __, No. 17-0003 (C.A.A.F. 2 May 2017). After reviewing the
Government’s response to the motion for reconsideration, we granted Appel-
lant’s motion.
After reconsideration, we withdraw our opinion dated 4 April 2017 and sub-
stitute this opinion. We remain unpersuaded by Appellant’s alleged errors and
therefore affirm the approved findings and sentence.
1 The military judge found Appellant guilty of one specification of sexual abuse by
touching the victim’s breast by excepting the “on divers occasions” language from the
specification. The military judge specifically found the conduct took place on one occa-
sion around the victim’s eleventh birthday. The military judge also excepted out an
improper touching of the victim’s torso in another specification, finding Appellant
guilty only of touching the victim’s vaginal area with his hand as also charged by the
Government in the specification.
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I. BACKGROUND
Appellant and his spouse, MB, lived in government housing on Kadena Air
Base, Japan, with their large blended family. MB brought five children into
the marriage, including her daughter, KJ, the victim in this case. Appellant
and MB also had two children together who lived in the family home. The home
was a duplex in which an internal doorway between two separate residences
had been constructed to give Appellant and his family sufficient living space.
Appellant, his wife, and their younger children occupied the bedrooms on one
side of the duplex, while KJ and her older brothers had bedrooms on the other
side.
In early January 2014, KJ reported to a friend’s mother, Staff Sergeant
(SSgt) IM, that Appellant had touched her in her private places. After talking
to a friend, SSgt IM contacted KJ’s mother, MB, and eventually met her in the
parking lot of a dining facility on Kadena Air Base to discuss KJ’s report. Prior
to meeting with MB, SSgt IM remembered a conversation a few weeks earlier
where MB had asked about getting a lock to put on KJ’s door because of con-
cerns MB had after Appellant spent too much time in KJ’s room one night after
coming home intoxicated. Notwithstanding her concerns and desire to obtain
a lock, MB informed SSgt IM that she did not believe Appellant was doing
anything inappropriate.
After meeting with SSgt IM and being told about the allegations, MB asked
SSgt IM if KJ could stay with her for a while longer to allow her to return home
and talk with Appellant about the allegations. Shortly thereafter, however, MB
contacted SSgt IM and asked that she bring KJ home. SSgt IM contacted her
supervisor for guidance on how to handle KJ’s allegations. Her supervisor rec-
ommended she contact base law enforcement, which she did that same day.
The Air Force Office of Special Investigations (AFOSI) was notified of the
incident based on SSgt IM’s report. KJ was interviewed by an AFOSI child
forensic interviewer about the allegations later that same day, which was vid-
eotaped. KJ reported Appellant frequently entered her room and touched her
breasts, buttocks, and vaginal area with his hand. Appellant would also place
his hand between her buttocks on occasion and rub around her anus. KJ also
reported that Appellant licked her “private spot” once. According to KJ, the
incidents of abuse started around her eleventh birthday in September 2013,
and continued until December 2013. KJ reported to AFOSI that she had told
her mother a few weeks before telling SSgt IM that Appellant was entering her
room and touching her inappropriately. KJ noted the abuse stopped once she
told her mother about Appellant’s actions.
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United States v. Barbary, No. ACM 38941
Shortly after KJ reported the allegations, Appellant and his family were
involuntarily relocated from Kadena Air Base to Peterson Air Force Base, Col-
orado, to ensure the family had access to social service, child protection, and
mental health resources that were not available at Kadena Air Base. Once Ap-
pellant and his family arrived in Colorado, the El Paso County DHS opened a
civil child protective case to investigate the health and welfare of the children,
including KJ.
II. DISCUSSION
A. Admission of Residual Hearsay
Appellant asserts the military judge abused her discretion by admitting
KJ’s “outcry” statement to a friend’s mother, as well as statements made dur-
ing her forensic interview with AFOSI in which she detailed various incidents
of abuse. 2 Appellant claims the statements were improperly admitted as resid-
ual hearsay under Mil. R. Evid. 807 as KJ provided the “best evidence” on the
nature and scope of the abuse during her testimony in the Government’s case-
in-chief.
Prior to trial, the Government gave notice to the Defense of its intent to
offer statements made by KJ to others under various hearsay exceptions, in-
cluding residual hearsay. The Defense moved at trial to prevent the Govern-
ment from offering any evidence under Mil. R. Evid. 807. After hearing testi-
mony from the two witnesses who heard KJ’s initial report of abuse and taking
limited argument on the motion, the military judge deferred ruling on the issue
until KJ testified at trial.
KJ later testified 3 that Appellant had sexually abused her three times. Two
of these incidents took place in KJ’s bedroom at night. She reported Appellant
entered her room and touched her buttocks over her underwear with his hand.
The third incident took place in Appellant’s bedroom on an evening when KJ’s
mother was not present in the house. KJ reported Appellant made her lie down
2 KJ’s outcry statement to SSgt IM was fairly non-specific, relating that Appellant had
touched her “private places” at least five or six times. Conversely, statements made by
KJ during the forensic interview encompassed all of the abuse alleged against Appel-
lant at trial.
3 The military judge granted the Government’s motion for remote live testimony of KJ
over Defense objection. The military judge found KJ would be unable to testify in open
court in the presence of Appellant because there was a substantial likelihood, estab-
lished by expert testimony, that KJ would suffer emotional trauma from testifying.
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United States v. Barbary, No. ACM 38941
on his bed while he applied lotion to her body after she had showered. KJ tes-
tified Appellant attempted to cover her face with a towel and penetrated her
“private spot” with his tongue.
When questioned by trial counsel about whether she ever remembered Ap-
pellant touching her breasts, anus, or vaginal area, KJ responded that she did
not remember any such conduct. On cross-examination, trial defense counsel
did not question KJ on her memory, but instead focused her on the number of
incidents she had just reported in response to trial counsel’s questioning.
DC: Now, when [trial counsel] asked you some questions, you
mentioned three times when you said [Appellant] touched you.
KJ: Yes.
DC: And then she asked you about other occasions. Were those
the only three times that he touched you?
KJ: Yes.
DC: So there were no other occasions?
KJ: Nope.
Immediately after KJ’s testimony, the Government requested the military
judge revisit the issue of residual hearsay with regard to KJ’s pretrial state-
ments. In addition to evidence provided by the two witnesses who testified ear-
lier about KJ’s “outcry” report, the Government requested the military judge
also admit KJ’s forensic interview with AFOSI. KJ’s report of abuse during the
forensic interview was fairly consistent in regards to the three incidents of
abuse that she testified to at trial. However, KJ also disclosed in some detail
in the forensic interview that Appellant had touched her breasts, anus, and
vaginal area with his hand when he entered her room at night.
After considering the recording of KJ’s forensic interview and taking addi-
tional arguments from the parties, the military judge admitted the forensic
interview and one of KJ’s “outcry” statements under Mil. R. Evid. 807. 4
We review a military judge’s ruling with regard to Mil. R. Evid. 807 for an
abuse of discretion. United States v. Czachorowski, 66 M.J. 432, 434 (C.A.A.F.
2008). “We accord a military judge ‘considerable discretion’ in admitting evi-
dence as residual hearsay.” United States v. Donaldson, 58 M.J. 477, 488
(C.A.A.F. 2003) (quoting United States v. Kelley, 45 M.J. 275, 281–82 (C.A.A.F.
4In explaining the basis for her ruling, the military judge also noted the Confrontation
Clause had been satisfied by KJ’s testimony in the Government’s case-in-chief. See
United States v. Vazquez, 73 M.J. 683, 689 (A.F. Ct. Crim. App. 2014).
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1996)). “Findings of fact are affirmed unless they are clearly erroneous; conclu-
sions of law are reviewed de novo.” Czachorowski, 66 M.J. at 434 (citing United
States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)).
“The residual-hearsay rule sets out three requirements for admissibility:
(1) materiality, (2) necessity, and (3) reliability.” Kelley, 45 M.J. at 280. Con-
gress intended the exception to be used rarely and in exceptional circum-
stances, but such a circumstance “generally exist[s] when a child sexual abuse
victim relates the details of the abusive events to an adult.” United States v.
Peneaux, 432 F.3d 882, 893 (8th Cir. 2005) (citing United States v. Shaw, 824
F.2d 601, 609 (8th Cir. 1987)).
Here, KJ’s statements were obviously material as they described the inci-
dents of abuse Appellant was charged with at trial. As such, we need only ad-
dress in detail the military judge’s findings regarding necessity and reliability.
The necessity prong evaluates the probative value of other available evi-
dence and requires the proponent to demonstrate that, despite “reasonable ef-
forts,” he could not obtain more probative evidence. See Czachorowski, 66 M.J.
at 435. While the unavailability of the declarant is not determinative, a show-
ing of such unavailability helps satisfy the necessity prong. Id. at 436. The
necessity prong essentially creates a “best evidence” requirement, though such
a requirement is applied more liberally to statements made by child victims.
Kelley, 45 M.J. at 280. “Even if the residual hearsay from a child victim may
be cumulative in some aspects, it may still be material evidence which is im-
portant to evaluating other evidence and arriving at the truth.” United States
v. Vazquez, 73 M.J. 683, 690 (A.F. Ct. Crim. App. 2014) (citing Kelley, 45 M.J.
at 280).
The military judge recognized that KJ’s ability to testify at trial compli-
cated the evaluation of the necessity prong. However, given KJ’s age and her
inability to fully remember the acts of abuse previously alleged against Appel-
lant, the military judge found the necessity prong had been met.
[T]he necessity part of the test really is the most difficult one in
this case. Necessity is akin to a best-evidence requirement. How-
ever, case law states that it should be applied more liberally to
statements made by a child victim. Necessity may be satisfied
when a victim cannot remember or refuses to testify about a ma-
terial fact and there’s no other more probative evidence of the
fact. Even if the evidence is somewhat cumulative, it can still be
admissible under residual hearsay if it is important in evaluat-
ing other evidence and arriving at the truth.
....
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United States v. Barbary, No. ACM 38941
In child sex abuse cases necessity is easily found when the child
witness has memory failure, refuses to answer questions, or is
simply too young to articulate what happened. This case is some-
what different because KJ testified and she answered every
question posed to her. She was articulate. She was not crying.
She did not seem distracted or hesitant to answer questions.
On the other hand, she provided far less detail in her testimony,
compared to her statements to Sergeant [IM] and Agent [S]. KJ
testified to three specific instances of the abuse where the ac-
cused rubbed her buttocks on two occasions and licked her
vagina on one occasion. When asked by trial counsel if she re-
membered if the accused touched her breasts or lower torso or
anus, she said no.
When asked by defense counsel if these were the only instances
of abuse, referring to the three she testified to, she said yes.
However, over 18 months ago, in January 2014, closer in time to
the alleged abuse, KJ told Sergeant [IM] the abuse happened
about five times. She told Agent [S] the abuse occurred four or
five times, and included licking her vagina, touching her but-
tocks, touching her breasts, touching her anus, touching her
lower torso, and inserting her finger -- his finger -- into her anus.
KJ testified that when she was interviewed by the police a long
time ago, she understood at that time it was important to tell
the truth and she told the truth. Therefore, it is reasonable to
conclude that KJ does not remember today what she remem-
bered then. And what she remembered then was closer in time
to the last instance of alleged abuse.
We further note the military judge’s findings of fact on the motion for re-
mote live testimony as they bear on the necessity prong. In summarizing as-
pects of KJ’s mental health records, the military judge found:
The records show that KJ’s mental health has substantially de-
clined since she came forward with these allegations. She strug-
gles daily to cope with her anxiety and to manage her thoughts
and feelings. She’s fearful, has outbursts, and sleep issues. She
avoids discussing the sexual trauma and when she does discuss
it, Mrs. B reports seeing regressive behavior; such as talking in
a child-like voice. Some of her mental health records suggest she
is ready to testify or will do fine testifying; however, her records
consistently show that she is reluctant to discuss the details of
the alleged abuse.
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United States v. Barbary, No. ACM 38941
Considering the entire record, we find the military judge did not abuse her
considerable discretion in finding the necessity prong was satisfied. This prong
may be satisfied when a witness cannot remember or refuses to testify about a
material fact and there is no other more probative evidence of that fact. United
States v. Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003). The military judge’s
assessment of KJ’s lack of memory was reasonable in that she considered KJ’s
various statements, her age, and her demeanor, as well as the differences in
detail regarding KJ’s reports of abuse in relation to the timing of her disclo-
sures. See Czachorowski, 66 M.J. at 436 (finding military judge failed to make
reasonable efforts in determining whether hearsay evidence was necessary).
The record also supports there was a mental health component to KJ’s ability
to testify and lack of memory.
While trial defense counsel’s cross-examination raised the question of
whether KJ’s more limited testimony at trial was due to lack of memory or
instead was akin to recantation, we do not believe this discrepancy should nec-
essarily change a military judge’s calculation as to the “best evidence” of the
abuse for the factfinder’s consideration. See United States v. Haner, 49 M.J. 72,
78 (C.A.A.F. 1998) (finding a written statement made by a witness who re-
canted at trial to be “necessary” under a residual hearsay analysis). There were
sufficient facts before the military judge that KJ’s testimony at trial did not
encompass all of the material facts regarding Appellant’s abuse. For these rea-
sons, and in consideration of the more liberal application of necessity for state-
ments by child victims, we find the military judge’s factual findings and con-
clusions were not arbitrary, clearly unreasonable, or clearly erroneous.
In order to be admitted under the residual hearsay exception, the hearsay
statement must also be reliable; that is, the statement must possess circum-
stantial guarantees of trustworthiness. Donaldson, 58 M.J. at 488; United
States v. Giambra, 33 M.J. 331, 334 (C.M.A. 1991). In determining whether a
statement has the circumstantial guarantees of trustworthiness, courts may
look to a number of indicia of reliability. These indicia can include, but are not
limited to: the mental state of the declarant, the spontaneity of the statement,
the use of suggestive questioning, whether the statement can be corroborated,
the declarant’s age, and the circumstances under which the statement was
made. Donaldson, 58 M.J. at 488. For child declarants, the indicia can also
include the use of terminology unexpected of a child of a similar age and the
lack of a motive to fabricate. Idaho v. Wright, 497 U.S. 805, 821–22 (1990); see
also United States v. Lingle, 27 M.J. 704, 708 (A.F.C.M.R. 1988) (noting a de-
clarant’s young age is a positive factor supporting admissibility as it lessens
the degree of skepticism regarding the child’s motives). A military judge’s fac-
tual findings on the existence of circumstantial guarantees of trustworthiness
are reviewed for clear error. Donaldson, 58 M.J. at 488.
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When examining whether the two statements admitted under Mil. R. Evid.
807 had requisite guarantees of trustworthiness for admission, the military
judge looked at both statements admitted at trial individually. As to the foren-
sic interview, the military judge found that: (1) KJ affirmatively understood
the difference between the truth and a lie; (2) the statement was sufficiently
detailed and unambiguous; (3) the statement was made close in time to the last
incident of abuse; (4) the questioning by the AFOSI interviewer was not inap-
propriately suggestive and allowed KJ to use her own words in describing Ap-
pellant’s misconduct; (5) the statement suggested an advanced knowledge of
inappropriate sexual behavior given KJ’s young age; (6) the statement was
made with a serious tone and demeanor; (7) the statement was unrecanted and
consistent with other statements; (8) the statement was not improperly influ-
enced by others; and (9) the statement was internally consistent and not self-
contradictory. In addition to these factors, the military judge also noted KJ’s
“outcry” statement was unsolicited and not offered in response to questioning.
In his briefings before the court, Appellant does contest the military judge’s
ruling on reliability. Having reviewed the evidence before the military judge,
we find her factual findings and legal analysis on this question was not clear
error. The military judge cogently assessed KJ’s age, her demeanor, and her
motive, as well as the circumstances surrounding the making of her various
statements––all factors commonly evaluated when examining the reliability of
a hearsay statement.
As such, the military judge did not abuse her considerable discretion in
admitting KJ’s statements as residual hearsay under Mil. R. Evid. 807. The
military judge evaluated the evidence, balanced the probative value of the
statements, and properly determined that KJ’s statements were material, nec-
essary, and reliable. Accordingly, the statements met the requirements of ad-
missibility as residual hearsay, and we uphold the military judge’s decision to
admit them.
B. Discovery Violation
Subsequent to the referral of charges against Appellant, the Government
requested the El Paso County DHS release all records related to KJ’s assess-
ment and treatment as part of the child protective service case. After DHS
representatives contested the subpoena, the military judge issued a court order
directing the production of the records.
Prior to trial, the Defense filed a motion requesting the Government dis-
close KJ’s mental health records. The records were requested to allow the De-
fense to “fully cross examine KJ and explore possible psychological issues that
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United States v. Barbary, No. ACM 38941
could affect the memory, perception, credibility, and/or motivation of the wit-
ness.” The Defense’s request encompassed the DHS records previously ordered
produced by the military judge.
In response to a motion by DHS legal counsel to quash both the Govern-
ment’s subpoena and the military judge’s court order, the military judge con-
ducted a hearing on the matter. When the military judge asked the Defense
what they were seeking in the DHS records, trial defense counsel responded
they were looking for impeachment, other avenues of defense, evidence of im-
pairment, and evidence regarding the reliability of the victim, including her
ability to perceive, testify, and recall facts.
The military judge determined she would conduct an in camera review of
the DHS records. This review was not contested by the Government or KJ’s
appointed legal representative. After conducting her in camera review, the mil-
itary judge released a variety of mental health records for care provided to KJ
while she was under the jurisdiction of DHS. Additionally, the military judge
released 77 pages of general information contained in the DHS investigative
case file. However, she declined to release an additional 734 pages from the
DHS investigation.
On appeal, Appellant argues the military judge erred in withholding seven
additional pages from the DHS investigation. These pages document e-mail
conversations between AFOSI agents and a DHS investigator, in which the
investigator opined the forensic interview conducted by AFOSI was not a “good
interview” because the interviewing agent used leading questions and did not
follow up the victim’s statements. While the investigator advised he had con-
sulted with forensic experts about the quality of the interview, he acknowl-
edged additional discussions with the victim’s therapist and other profession-
als was required before a second interview of the victim would be considered
in this case. Appellant now argues these records were discoverable as they
would have allowed the Defense to attack the military judge’s ruling that KJ’s
pretrial statements were reliable and, therefore, admissible under Mil. R. Evid.
807. Without determining whether there has been an actual discovery viola-
tion, we find the failure to disclose the limited DHS records did not affect the
outcome of this trial.
In its answer to this assignment of error, the Government moved to attach
an e-mail record from senior trial counsel in which, prior to trial, he provided
the Defense with draft internal data pages from AFOSI. One of the attach-
ments to the e-mail disclosed a summary of AFOSI’s interaction with the DHS
investigator, including information that child protective service personnel and
multiple forensic experts had reviewed the initial AFOSI child forensic inter-
view and opined a second interview would be necessary due to the fact the
interviewer improperly led the victim and failed to follow up on the victim’s
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United States v. Barbary, No. ACM 38941
responses. We granted the Government's motion to attach these materials to
the record of proceedings, and have considered them in resolving this assign-
ment of error.
We review a military judge’s ruling on a discovery request for abuse of dis-
cretion. United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004). “A military
judge abuses his discretion when his findings of fact are clearly erroneous,
when he is incorrect about the applicable law, or when he improperly applies
the law.” Id. In the case before us, we are reviewing the military judge’s deter-
mination of whether this requested evidence was “material to the preparation
of the defense” for purposes of the Government’s obligation to disclose under
Rule for Courts-Martial (R.C.M.) 701(a)(2)(A). “The military judge’s determi-
nation of materiality in this respect is a question of law that we review de
novo.” Roberts, 59 M.J. at 323. “Our review of discovery/disclosure issues uti-
lizes a two-step analysis: first, we determine whether the information or evi-
dence at issue was subject to disclosure or discovery; second, if there was non-
disclosure of such information, we test the effect of that nondisclosure on the
appellant’s trial.” Id. at 325.
However, a reviewing court may resolve discovery matters without deter-
mining whether there has been an actual discovery violation if the court con-
cludes that the alleged error would not have been prejudicial. United States v.
Santos, 59 M.J. 317, 321 (C.A.A.F. 2004). If the withheld evidence was not spe-
cifically requested by the defense, the “harmless error” standard is applied––
whether there is a “reasonable probability that, had the evidence been dis-
closed, the result of the proceeding would have been different.” United States
v. Coleman, 72 M.J. 184, 186–87 (C.A.A.F. 2013) (quoting Smith v. Cain, 56
U.S. 73, 75 (2012)).
In contrast, a constitutional error standard is applied in military cases
when the defense made a specific request for the undisclosed information. Id.
at 187. This heightened standard is unique to military practice and reflects the
broad nature of discovery rights granted to a military accused under Article
46, UCMJ, 10 U.S.C. § 846, and its implementing rules, which provide the ac-
cused with greater statutory discovery rights than does one’s constitutional
right to due process. Id. at 186–87; Roberts, 59 M.J. at 327.
Here, given the specific facts before us, it is only necessary for us to revolve
whether the military judge erred in failing to provide the additional seven
pages of the records to the Defense if we find that the error prejudiced Appel-
lant. In so doing, we review the military judge’s failure to provide these seven
pages of discovery using the “harmless beyond a reasonable doubt” standard.
This standard entitles an appellant to relief if the disclosure of the favorable
evidence “might have affected the outcome of the trial.” Coleman, 72 M.J. at
187. “Harmless beyond a reasonable doubt is a high standard, but it is not an
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United States v. Barbary, No. ACM 38941
impossible standard for the Government to meet.” United States v. Gonzalez,
62 M.J. 303, 306 (C.A.A.F. 2006). Our determination of prejudice is made in
light of the entire record. United States v. Morris, 52 M.J. 193, 197 (C.A.A.F.
1999).
We find the failure to disclose the limited DHS records did not affect the
outcome of this trial. Based on the Government’s pretrial discovery, trial de-
fense counsel was already in possession of information documenting DHS’s
concerns about the quality of AFOSI’s forensic interview of KJ. 5 As such, the
seven pages of records withheld by the military judge were cumulative with
other discovery available to the Defense.
Additionally, trial defense counsel was unquestionably aware that DHS
was considering a second interview of KJ during the course of its investigation.
Relevant information about DHS’s proposed plan was included in the Govern-
ment’s response to the Defense’s motion seeking DHS records. Trial defense
counsel’s knowledge was also reflected in his cross-examination of KJ’s thera-
pist, as well as statements of fact made in the Defense’s opening statement,
which was given after the Government’s rested its case-in-chief. Trial defense
counsel was also fully aware, based on the same government discovery, that
DHS personnel eventually decided against a second interview based on a belief
they had sufficient information to satisfy their burden of proof against Appel-
lant. Given the Defense had access to an experienced forensic psychologist as
a litigation consultant who could also have evaluated the quality of KJ’s inter-
view by AFOSI, we find the omission of this limited evidence harmless beyond
a reasonable doubt.
We are also convinced beyond a reasonable doubt that trial defense coun-
sel’s specific citation to this material would not have changed the military
judge’s ruling under Mil. R. Evid. 807. The military judge reviewed the video
herself and, as such, was sufficiently able to analyze critical issues such as
suggestiveness, reliability, bias, and timing. The military judge found the ques-
tions posed to KJ were not inappropriately suggestive and the AFOSI agent
allowed KJ to use her own words in describing the abuse. Having viewed the
interview video ourselves, we cannot fault the military judge for her overall
assessment regarding the quality of the forensic interview.
Furthermore, it is doubtful the military judge would have given much
weight to the DHS investigator’s initial opinion given the ultimate decision by
DHS to move forward with their case without another interview. While DHS’s
5 The Defense was also notified that the AFOSI agents and DHS investigator involved
in the now-challenged e-mail communication were potential Government witnesses at
trial. There is no evidence before us that trial defense counsel was unable to conduct a
pretrial interview of these witnesses.
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decision to move forward may have been made in spite of what they still be-
lieved was poor interview, there is no evidence before this court in direct con-
flict with the military judge’s holding on this matter. For these reasons, we find
the nondisclosure in this case to be harmless beyond a reasonable doubt. We
are convinced the challenged evidence, if disclosed to both trial defense counsel
and the military judge, would not have affected the outcome of the trial.
C. Admission of Propensity Evidence
Prior to trial, the Government notified the Defense of its intent to offer var-
ious sexual acts committed by Appellant as propensity evidence under Mil. R.
Evid. 414. Most of the sexual acts identified by the Government were offenses
involving KJ which were charged under Article 120b, UCMJ. However, the
Government also gave notice of sexual misconduct committed against KJ’s
younger sister which had been initially charged, but dismissed by the Govern-
ment prior to trial. The Defense submitted a motion for appropriate relief
based on this notice requesting the military judge prevent the Government
from offering any propensity evidence.
After conducting a hearing on the Defense motion, the military judge, rec-
ognizing the status of the law at that time, held the charged offenses involving
KJ could be considered as propensity evidence. The military judge initially de-
ferred her decision on the propriety of admitting evidence involving KJ’s sister
as propensity until after KJ testified at trial. Eventually, however, the military
judge found the uncharged misconduct involving KJ’s sister was not proper
evidence to be considered under Mil. R. Evid. 414.
Based on the military judge’s consideration of charged offenses for purposes
of propensity evidence, Appellant claims his convictions must be set aside
based on our superior court’s rulings in United States v. Hills, 75 M.J. 350(C.A.A.F. 2016) and Hukill. In Hills, the United States Court of Appeals for
the Armed Forces (CAAF) determined the military judge erred in admitting
charged sexual assault offenses as propensity evidence; determined the mili-
tary judge’s spill-over and propensity instructions were improper as the court
members were provided with “directly contradictory statements about the
bearing that one charged offense could have on another; and examined the
prejudicial effect of the error under the standard of harmless beyond a reason-
able doubt given the instructional error raised constitutional due process con-
cerns. Hills, 75 M.J. at 352, 357.
In Hukill, the CAAF clarified that “under Hills, the use of evidence of
charged conduct as M.R.E. 413 propensity evidence for other charged conduct
is error, regardless of the forum, the number of victims, or whether the events
are connected.” Hukill, slip op. at 6. Furthermore, regarding prejudice, the
court found that the same constitutional implications arising from confusing
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United States v. Barbary, No. ACM 38941
instructions to members exist equally to judge-alone trials. Thus, the errone-
ous use of charged conduct as propensity evidence must be tested for harmless-
ness beyond a reasonable doubt, and the Government must prove there was no
reasonable possibility that the error contributed to the verdict. Id. (citing
Chapman v. California, 386 U.S. 18, 22-24 (1967) and United States v. Kreut-
zer, 61 M.J. 293, 298 (C.A.A.F. 2005)).
As an initial matter, the Government argues Appellant either waived or
forfeited his objection on the use of propensity evidence by acquiescing to the
military judge’s statement during motion practice that the use of charged of-
fenses as propensity evidence was “common” and “permissible” in military
practice. We do not find Appellant’s recognition of the then-current state of the
law regarding propensity evidence was sufficient to eviscerate his clear objec-
tion at trial regarding the use of charged offenses as propensity evidence. We
decline to accept the Government’s invitation to apply either waiver or forfei-
ture to the facts of this particular case. We thus review the military judge’s
admission of the evidence for an abuse of discretion. United States v. Solomon,
72 M.J. 176, 179 (C.A.A.F. 2013).
Applying Hills and Hukill, we readily conclude that the military judge
erred when she considered the charged offenses as propensity evidence. Id. at
6. We nonetheless find that this constitutional error was harmless beyond a
reasonable doubt.
The Government’s case was strong. KJ testified under oath and was subject
to the crucible of cross-examination. KJ’s testimony, when examined in con-
junction with her pretrial statements admitted under the medical treatment
and residual exceptions to the hearsay rule, was fairly consistent with regard
to Appellant’s misconduct towards her, including the timeframe, location, and
manner of the sexual assault. Additionally, KJ’s timeline of the abuse was cor-
roborated by other evidence.
As an example, KJ advised in her forensic interview that she told her
mother, MB, about the abuse in December 2013, a few weeks prior to disclosing
to SSgt IM. KJ stated the abuse stopped after she reported Appellant’s miscon-
duct to her mother. Although MB denied the statement at trial, SSgt IM re-
layed MB’s request for a lock to place on KJ’s door because of her concern about
Appellant’s conduct one evening when he came home intoxicated. This request,
according to SSgt IM, took place a few weeks prior to KJ’s outcry. While MB
tried to minimize the importance of the lock, her prior statement to SSgt IM
bolstered KJ’s testimony and her overall credibility with the factfinder. Fi-
nally, KJ’s credibility was bolstered by her relatively contemporaneous report
and established character for truthfulness.
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United States v. Barbary, No. ACM 38941
Our belief about the strength of the Government’s case is supported by the
trial counsel’s findings argument during which he did not reference the avail-
able propensity evidence or ask the military judge to use it during her deliber-
ations on the charged offenses. Similarly, the strength of the case is buttressed
by the military judge’s mixed findings. Had the military judge misinterpreted
the presumption of innocence or burden of proof as suggested as a possibility
in Hills, one would have expected guilty verdicts on all of the charged sexual
assault offenses. Instead, the military judge’s mixed findings and findings by
exception and substitution support a conclusion she examined each specifica-
tion separately and imposed not guilty findings where the Government failed
to meet its burden of proof.
For all of these reasons, we find there was no reasonable possibility that
the military judge’s consideration of the propensity evidence contributed to Ap-
pellant’s guilty verdicts.
D. Factual Sufficiency
Appellant argues the evidence produced at trial was factually insufficient
to support three of the sexual abuse specifications asserting Appellant touched
KJ’s anus, breast, and vaginal area with his hand. These specifications, Appel-
lant notes, were only supported by evidence admitted as residual hearsay. Pro-
vided this court finds the military judge erred in admitting evidence under Mil.
R. Evid. 807, Appellant reasons the three specifications supported by this evi-
dence must be dismissed. Alternatively, Appellant argues KJ’s complete testi-
mony with regard to these offenses was insufficient to establish proof beyond
a reasonable doubt. Appellant focuses on KJ’s testimony at trial in which she
denied the misconduct charged in these specifications occurred.
We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10
U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
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] convinced of the [appellant’s] guilt beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting
this unique appellate role, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence con-
stitutes proof of each required element beyond a reasonable doubt.” Washing-
ton, 57 M.J. at 399. Our assessment of factual sufficiency is limited to the evi-
dence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
Given our finding above that the military judge did not abuse her discretion
in admitting KJ’s forensic interview, we assess Appellant’s claim by examining
all of the evidence admitted at trial. KJ’s forensic interview provided more than
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United States v. Barbary, No. ACM 38941
sufficient evidence for the elements of the offenses charged in the three speci-
fications challenged by Appellant. The interview was made close in time to the
abuse and, more importantly, made prior to attempts by KJ’s mother to either
dissuade KJ from testifying or otherwise improperly influence her testimony.
Regarding KJ’s credibility, the Government called various witnesses, in-
cluding KJ’s teachers, who all opined her character for truthfulness was favor-
able. Moreover, her credibility was aided by her relatively contemporaneous
report and the absence of tangible evidence showing KJ possessed a motive to
misrepresent the allegations against Appellant.
Furthermore, as noted above, KJ’s timeline of the abuse was corroborated
by other evidence. This includes KJ’s statement that the abuse stopped in De-
cember 2013 after she reported Appellant’s misconduct to her mother and SSgt
IM’s testimony that KJ’s mother tried to find a lock for KJ’s door due to con-
cerns about Appellant’s behavior when he came home intoxicated. This evi-
dence bolstered KJ’s testimony and her overall credibility with the factfinder.
The military judge heard the testimony of KJ and other witnesses, and was
able to consider the other admitted evidence surrounding Appellant’s charged
misconduct. Having carefully reviewed the record of proceedings in this case,
and having made allowances for not personally observing the witnesses, we are
convinced beyond a reasonable doubt that Appellant sexually abused KJ as
alleged in the three specifications challenged on appeal. We thus find these
offenses factually sufficient.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of the appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 6 Accordingly, the
findings and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
6 The court specified an issue as to whether error occurred when the addendum to the
staff judge advocate’s recommendation contained a victim-impact statement, but there
was no evidence in the record of trial that this statement was served on Appellant prior
to the convening authority taking action. Appellant conceded in his response to the
specified issue that he suffered no prejudice for the Government’s error. As such, no
corrective action is necessary on this matter.
16