United States v. Ayala ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Thomas AYALA, Staff Sergeant
United States Army, Appellant
No. 20-0033
Crim. App. No. 20170336
Argued November 18, 2020—Decided March 5, 2021
Military Judges: Joseph A. Keeler and Jeffery R. Nance
For Appellant: Captain Catherine E. Godfrey (argued);
Colonel Michael C. Friess, Lieutenant Colonel Tiffany D.
Pond, Major Jack D. Einhorn, Major Jodie L. Grimm, and
Major Kyle C. Sprague (on brief); Captain Benjamin A.
Accinelli and Captain Jason X. Hamilton.
For Appellee: Captain Christopher K. Wills (argued);
Colonel Steven Haight, Lieutenant Colonel Wayne H.
Williams, and Major Craig J. Schapira (on brief).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, Judge OHLSON and Senior
Judge RYAN, joined. Judge MAGGS filed a separate
concurring opinion.
_______________
Judge SPARKS delivered the opinion of the Court.
This case arises out of the conviction by military judge
alone of Staff Sergeant Thomas Ayala (Appellant), contrary
to his pleas, of two specifications of aggravated sexual contact
in violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2012).1 Appellant was sentenced to
a bad-conduct discharge and confinement for eight months.
The convening authority approved the sentence. The United
1 Appellant was also found not guilty of one specification of
attempted sexual assault in violation of Article 80, UCMJ, 10
U.S.C. § 880 (2012).
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
States Army Court of Criminal Appeals affirmed the findings
and sentence in a summary disposition.
Appellant asks this Court to determine whether the
military judge erred in admitting evidence as prior consistent
statements under Military Rules of Evidence (M.R.E.)
801(d)(1)(B)(i) and M.R.E. 801(d)(1)(B)(ii).2 We conclude that,
whether or not the evidence was erroneously admitted,
Appellant was not prejudiced by the military judge’s decision.
I. Background
The charges in this case stem from an encounter between
Appellant and Specialist AN, a female enlisted soldier.
Appellant and AN were acquaintances who ran into one
another on the evening of April 17, 2016. Appellant invited
AN back to his living quarters and, though AN testified that
she was hesitant to accompany him, she eventually did so.
AN testified that, once inside, she sat down on Appellant’s
bed. After about five minutes, he began trying to kiss her. She
told him no and that she wasn’t interested and tried to push
him off. Appellant continued trying to kiss AN and attempted
to take off her shirt. She testified that she kept wiggling
away, trying to move his hands away, and saying no.
Appellant continued trying to kiss AN and he held her hands
down over her head and again tried to take off her shirt and
then her bra. He also touched her breasts. Appellant
attempted to pull down AN’s pants and underwear and
repeatedly reached his hands down the front of her pants. AN
testified that she told Appellant she wanted to leave and he
replied “ ‘[y]ou’re not leaving until I say you’re leaving.’ ”
When AN tried to get up off the bed he put her back down.
She testified that she felt scared and vulnerable in the
situation.
2 The granted issue is:
Whether the Military Judge abused his discretion in
admitting the victim’s prior consistent statements
under Mil. R. Evid. 801(d)(1)(B)(i) AND
801(d)(1)(B)(ii).
2
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
Appellant’s roommate at the time of the assault, Staff
Sergeant JC, testified that he was present in the room for
most of the time Appellant and AN were there, with the
exception of a brief trip to the bathroom and then, fifteen
minutes later, he walked to a separate location to watch a
hockey game and was gone about twenty minutes. During
some of that time he was engaged in a FaceTime call with his
young daughter. There was an internal wall between
Appellant’s area of the quarters and JC’s. JC testified that he
perceived Appellant and AN as giggling and happy and that
they were lying in the bed together. He did not hear AN say
no or stop at any time. JC testified that he was annoyed that
AN was there and made it clear she couldn’t spend the night.
AN testified that much (though not all) of what occurred
between her and Appellant happened once JC had left the
room and that when JC asked if she was staying the night she
clearly told both JC and Appellant that she was not.
AN eventually got up off the bed and left. Appellant
followed her outside and asked her to go with him between
buildings so they wouldn’t be seen. She presumed this was
because it was late and there were camp rules forbidding
being in a person of the opposite sex’s room after 10:00 p.m.
AN agreed and, when they were out of sight, Appellant told
AN that he wanted them to be together. When she appeared
skeptical, Appellant grabbed AN’s hand and put it on the
outside of his pants over his penis to demonstrate to her his
claim that he was not sexually aroused by her.
When AN got back to her quarters she texted a fellow
soldier, Sergeant Rolf, and told him she had been sexually
assaulted.
The following morning AN exchanged a series of text
messages with her mother about what had happened saying
she thought she had been sexually assaulted. AN then
reported the violation to military law enforcement. The Navy
Criminal Investigative Service (NCIS) conducted a
videotaped interview with AN. She later gave a written
statement to the Army Criminal Investigation Division (CID).
After reporting the incident and at the suggestion of the
investigators, AN engaged in a series of emails with
Appellant. Appellant wrote that “[I] didn’t know if I crossed
3
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
the line with you the other night.” When AN asked him
whether he thought he had crossed the line, he responded
“Yea” and apologized to her if he did. Appellant also told a
fellow soldier that he had been out with AN and “ ‘there may
have been a mistake one night.’ ”
At trial, the defense argued that AN had lied about the
abusive sexual contact from the start. During cross-
examination, the defense questioned AN about how
extensively she had prepared with trial counsel, including
how many times they went over her testimony and whether
they reviewed her videotaped interview and text messages.
The Government sought to admit AN’s text messages to
her mother and her videotaped interview with NCIS as prior
consistent statements under M.R.E. 801(d)(1)(B) to counter
the implication that she had been improperly prepared by the
prosecution.3 The military judge admitted the text messages
(P.E. 4) under M.R.E. 801(d)(1)(B)(i) and the videotaped
interview (P.E. 14) under M.R.E. 801(d)(1)(B)(ii), both over
defense objection. Both were redacted to remove material the
parties and the military judge considered irrelevant.
II. Standard of Review
A military judge’s decision to admit evidence is reviewed for an
abuse of discretion. United States v. Frost, 79 M.J. 104, 109
(C.A.A.F. 2019). “A military judge abuses his discretion when his
findings of fact are clearly erroneous, the court’s decision is
influenced by an erroneous view of the law, or the military judge’s
decision on the issue at hand is outside the range of choices
reasonably arising from the applicable facts and the law.” Id.(internal quotation marks omitted) (citation omitted).
III. Applicable Law
As a general rule, hearsay, defined as an out of court
statement offered into evidence to prove the truth of the
matter asserted, is not admissible in courts-martial. M.R.E.
801(c); M.R.E. 802. Military Rule of Evidence 801(d)(1)(B)
3 Initially the Government sought to admit AN’s written
statement to CID as Prosecution Exhibit (P.E.) 6 but when the
military judge found the videotaped interview cumulative with the
written statement, the Government withdrew the written
statement.
4
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
provides an exception to hearsay for prior consistent
statements made by a testifying witness if the statement is
consistent with the witness’s testimony and is offered:
i) to rebut an express or implied charge that the
declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying;
or
ii) to rehabilitate the declarant’s credibility as a
witness when attacked on another ground.
The proponent of the evidence, in this case the Government,
has the burden of demonstrating that the evidence is
admissible. United States v. Finch, 79 M.J. 389, 394 (C.A.A.F.
2020).
Subsection (B)(ii) of the rule is new as of 2016 and makes
M.R.E. 801(d)(1)(B) consistent with the federal rule. Exec.
Order No. 13,703, 3 C.F.R. § 492 (2016); Fed. R. Evid.
801(d)(1)(B)(ii). This Court recently and extensively
addressed the amended rule in Finch. We determined that
the addition of (B)(ii) to the rule did not impact statements
that are admissible under (B)(i) nor did it in any way disturb
our existing case law relevant to (B)(i). 79 M.J. at 395. The
amendment creates “no new law with respect to the
admissibility of prior consistent statements to rebut a charge
of recent fabrication or improper influence or motive.” Id. As
such, this Court’s precedent interpreting (B)(i) continues to
apply “with full force.” Id.
We also clarified that—because prior consistent
statements had already commonly been admitted for the
limited purpose of rehabilitating witness credibility—the real
change ushered in by the amended rule was that such prior
consistent statements can now be admitted not just for the
limited purpose of rehabilitation but as substantive evidence.
Id. at 395–96. And we added that “a prior consistent
statement need not be identical in every detail to the
declarant’s … testimony at trial.” Id. at 395 (alteration in
original) (internal quotation marks omitted) (citation
omitted). Rather, the prior statement need only be “for the
most part ... consistent with respect to … fact[s] of central
importance at the trial.” Id. (alterations in original) (internal
5
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
quotation marks omitted) (quoting United States v. Vest, 842
F.2d 1319, 1329 (1st Cir. 1988)).
We made it clear in Finch that prior consistent statements
may be eligible for admission under either (B)(i) or (B)(ii) but
not both. We also determined that statements admitted under
(B)(ii) must be relevant to the grounds of attack:
[F]or a prior consistent statement to be admissible
under M.R.E. 801(d)(1)(B)(ii) it must satisfy the
following: (1) the declarant of the out-of-court
statement must testify, (2) the declarant must be
subject to cross-examination about the prior
statement, (3) the statement must be consistent
with the declarant’s testimony, (4) the declarant’s
credibility as a witness must have been “attacked on
another ground” other than the ones listed in M.R.E.
801(d)(1)(B)(i), and (5) the prior consistent statement
must actually be relevant to rehabilitate the witness’s
credibility on the basis on which he or she was
attacked. The proponent of the evidence bears the
burden of articulating the relevancy link between
the prior consistent statement and how it will
rehabilitate the witness with respect to the
particular type of impeachment that has occurred.
Id. at 396 (emphasis added).
A key question in considering admission under (B)(i) is
whether the prior statements came before or after the alleged
motive to fabricate. As we noted in Frost, this Court has
identified two additional guiding principles that govern
admission under (B)(i):
(1) the prior statement, admitted as substantive
evidence, must precede any motive to fabricate
or improper influence that it is offered to rebut;
and
(2) where multiple motives to fabricate or multiple
improper influences are asserted, the statement
need not precede all such motives or influences,
but only the one it is offered to rebut.
79 M.J. at 110 (citing United States v. Allison, 49 M.J. 54, 57
(C.A.A.F. 1998)). If the statement occurred after the motive
arose, then the declarant’s consistency signifies nothing.
“Statements made after an improper influence arose do not
rehabilitate a witness’s credibility.” Id. at 111.
6
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
IV. Analysis
Admission of Evidence
The Government originally sought to admit both P.E. 4
and P.E. 14 to counter defense insinuations that AN had been
improperly prepared for trial and her testimony manipulated.
Defense opened their cross-examination of AN with a series
of questions about how she and the prosecution had prepared
her testimony. They highlighted that AN had done four or five
pretrial interviews with prosecutors and had come into the
courtroom to prepare on the witness stand and that this
preparation had occurred both before and after the defense
interview with AN (at which trial counsel was present).
Defense also asked AN whether she had prepared by going
over the various exhibits with trial counsel.
The military judge initially supported the Government’s
interpretation of defense counsel’s questions and admitted a
redacted version of the text messages under (B)(i). But he
later ruled that the videotaped interview could not come in
under (B)(i) because the defense questions had not gone so far
as to imply an improper influence, and instead allowed P.E.
14 to come in under (B)(ii).4
The defense argued that they had not intended to imply
that the Government caused AN to change her testimony but
rather that the extensive practice helped AN to keep her story
consistent, so she could “tell the story better.” In response to
this argument, the Government proposed that AN’s sworn
statement5 could still come in under (B)(ii) because defense
had attacked her credibility on a number of other fronts
including her prior civilian arrest, counseling for alcohol use,
failure to convey to Appellant that she was not sexually
interested in him, and her motives in reporting the assault.
4 Our statements in this opinion should in no way indicate that
it is problematic for the prosecution to prepare a witness for court-
martial or that such preparation in and of itself constitutes an
improper influence.
5 Because the Government subsequently decided to admit the
videotaped interview in lieu of the sworn statement we make the
assumption that the arguments in favor of the later also apply to
the former.
7
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
The military judge expressed some hesitancy about how to
interpret (B)(ii) and what kind of evidence was admissible
under this new provision. However, he ultimately determined
that, although the entire videotaped interview was not
admissible, the Government could admit under (B)(ii),
sections of the interview that both parties agreed were
relevant. However, despite having ruled that defense
questions had not gone so far as to imply an improper
influence, he did not revisit his ruling that the text messages
could come in under (B)(i).
Based on the record before us, it is not necessary to decide
whether or not the military erred in admitting the exhibits at
issue. Even if there was error, we conclude there is no
prejudice.
Prejudice
“For [preserved] nonconstitutional evidentiary errors, the
test for prejudice is whether the error had a substantial
influence on the findings.” Frost, 79 M.J. at 111 (alteration in
original) (internal quotation marks omitted) (citation
omitted). “In conducting the prejudice analysis, this Court
weighs: (1) the strength of the Government’s case, (2) the
strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” Id. (internal quotation marks omitted) (citation
omitted).
One aspect of this case weighing against prejudice relates
to the military judge’s comments on the record. The military
judge mentioned on multiple occasions that he would not
consider material that he did not find relevant. He went
through the series of text messages between AN and her
mother on the record page by page, parsing out what was
consistent with AN’s testimony and what he would not
consider. The military judge also assured defense counsel that
he would only consider the portions of the videotape relevant
to (B)(ii) and made sure that both parties agreed on how the
videotape should be redacted. He clarified that he would not
have allowed admission of the entire tape in a members’ trial
because there was no way to ensure that, unlike himself, they
would only consider the relevant portions. Though the
military judge did not view the videotape before admitting it,
8
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
he did require that defense counsel and the Government
agree to redactions that excluded irrelevant portions from
consideration.6 In addition, the military judge did not give
Appellant a harsh sentence or provide any other indication he
had been improperly swayed. He convicted on only two of the
three specifications and took care to except specific language
in one of those remaining specifications, indicating he was
paying close attention to the evidence he considered.
The Government had a reasonably strong case, which
included additional evidence that supported AN’s version of
events. Her pretext emails with Appellant in which he told
her that he had crossed the line may not have provided a full
admission of guilt but they revealed that he knew at the very
least that his conduct had been potentially unlawful that
night. He also mentioned to another soldier that he may have
made a mistake with AN. In addition, AN was an overall
credible witness. She did have a pattern of poor choices in her
past, including drinking when the rules forbade it and
shoplifting as a minor, but she was consistent on the stand
regarding her interactions with Appellant on the night in
question.
The defense case was not as strong. Appellant’s theory
that AN was concerned with her reputation around camp and
with Sergeant Rolf and therefore invented the assault was
based entirely on supposition. There was no physical evidence
or direct testimony signaling a motive to fabricate. Sergeant
JC was present in the room for part of the encounter between
Appellant and AN and his testimony did contradict AN’s in
some respects. However, the fact that he was in and out and
FaceTiming his daughter impacted his ability to observe what
unfolded that night.
Lastly, the text message and interview as admitted were
not significant evidence. Both repeated evidence that had
come in through AN’s testimony and therefore would already
have been considered by the military judge. We do not
consider that mere repetition of AN’s story would color the
6 This distinguishes the current case from Finch, where the
military judge admitted the entire videotaped interview without
viewing it first. 79 M.J. at 397.
9
United States v. Ayala, No. 20-0033/AR
Opinion of the Court
military judge’s decision and therefore have any substantial
influence on the findings.
V. Conclusion
Assuming while not deciding that the military judge
erroneously admitted P.E. 4 and P.E. 14, any such error
could not have prejudiced Appellant.
VI. Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
10
United States v. Ayala, No. 20-0033/AR
Judge MAGGS, concurring.
Specialist AN testified at trial that, without her consent,
Appellant touched her breasts and her groin, attempted to
penetrate her vulva with his finger, and forced her to touch
his penis on the evening of April 17, 2016. On cross-examina-
tion, civilian defense counsel asked Specialist AN several
questions about how she had met with trial counsel to prepare
for her testimony in court. Trial counsel perceived that civil-
ian defense counsel was charging, through his questions, that
the Government had improperly coached Specialist AN. To
rebut these charges, trial counsel sought to introduce text
messages that Specialist AN had sent to her mother on the
day after the incident and a video recording of Specialist AN’s
interview with Army investigators on the same day. The text
messages and video both contained statements that were con-
sistent with Appellant’s testimony in court. The military
judge admitted selected portions of the text messages and the
video, over Appellant’s objection that they contained hearsay,
as Prosecution Exhibits 4 and 14.
Appellant challenged the admission of Prosecution Exhib-
its 4 and 14 on appeal. The United States Army Court of
Criminal Appeals (ACCA) affirmed. Providing “belt-and-sus-
penders” rationales for its decision, the ACCA concluded (1)
that the military judge did not abuse his discretion in admit-
ting the evidence, and (2) that, in any event, any possible er-
ror in admitting the exhibits would not have substantially in-
fluenced the military judge’s findings. United States v. Ayala,
No. ARMY 20170336, 2019 CCA LEXIS 301, at *1, 2019 WL
3283274, at *1 (A. Ct. Crim. App. July 18, 2019) (un-
published).
Today, this Court affirms the findings and the sentence,
agreeing with the ACCA’s second rationale, namely, that even
if an error occurred, the error did not prejudice Appellant. The
Court eschews deciding whether the military judge abused
his discretion. I join the Court’s opinion because I concur with
the Court’s decision that Appellant could not show prejudice
even if the military judge erred in admitting the exhibits. But
I also agree with the ACCA that admitting the exhibits was
not error. In my view, addressing the issue of admissibility—
which is properly before us—is a higher priority here than de-
United States v. Ayala, No. 20-0033AR
Judge MAGGS, concurring
ciding the issue of possible prejudice because the issue of ad-
missibility appears to have caused some confusion at trial and
because cases involving allegations of coaching are not un-
common. See, e.g., United States v. Norwood, __ M.J. __, __–
__ (2–4) (C.A.A.F. 2021). Explaining why the prior consistent
statements were admissible in this case may aid counsel and
military judges in the future more than assuming error and
deciding the hypothetical question of prejudice.
The Government argues that Prosecution Exhibits 4 and
14 were admissible under Military Rule of Evidence (M.R.E.)
801(d)(1)(B)(i), which provides:
A statement that meets the following conditions is
not hearsay:
(1) A Declarant-Witness’s Prior Statement. The
declarant testifies and is subject to cross-examina-
tion about a prior statement, and the statement:
….
(B) is consistent with the declarant’s testimony
and is offered:
(i) to rebut an express or implied charge that
the declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying.
...
M.R.E. 801(d)(1)(B)(i).1
This Court has recognized that the “usual” case under
M.R.E. 801(d)(1)(B)(i) involves three steps. United States v.
McCaskey, 30 M.J. 188, 192 (C.M.A. 1990). First, counsel for
1 The military judge cited M.R.E. 801(d)(1)(B)(i) in admitting
Prosecution Exhibit 4. Although the military judge cited M.R.E.
801(d)(1)(B)(ii) in admitting Prosecution Exhibit 14, I agree with
the Government’s argument that we may affirm admission of Pros-
ecution Exhibit 14 under M.R.E. 801(d)(1)(B)(i) if the record demon-
strates that the elements of that provision are satisfied. See United
States v. Leiffer, 13 M.J. 337, 345 n.10 (C.M.A. 1982) (explaining
that this Court can affirm admission of evidence on a ground not
cited by the military judge because “ ‘the rule is settled that, if the
decision below is correct, it must be affirmed, although the lower
court relied upon a wrong ground or gave a wrong reason’ ” (quoting
Helvering v. Gowran, 302 U.S. 238, 245 (1937))).
2
United States v. Ayala, No. 20-0033AR
Judge MAGGS, concurring
one party (Party A) calls a witness who provides helpful tes-
timony. Second, counsel for the other party (Party B) insinu-
ates through cross-examination or otherwise that the witness
recently changed his or her story. Third, counsel for Party A
then attempts to rebut Party B’s charge by introducing an
earlier consistent statement by the witness for the purpose of
showing that the witness’s story has not in fact changed. Un-
der M.R.E. 801(d)(1)(B)(i), the prior consistent statement is
not considered hearsay. See, e.g., United States v. Allison, 49
M.J. 54, 57–58 (C.A.A.F. 1998) (prior consistent statements
in a videotaped interview with a social worker were admissi-
ble to rebut the appellant’s charge that trial counsel subse-
quently shaped the testimony that a witness gave at trial).
Appellant, however, contends that this case is different
from the usual example described above and that M.R.E.
801(d)(1)(B)(i) does not apply. Appellant argues that the de-
fense theory was that Specialist AN’s motive to lie about what
happened arose before she reported the assault to anyone. Ap-
pellant asserts: “While the prosecution made much to do
about the defense inquiring into her pretrial preparation, the
defense never insinuated that her story had changed in that
time. Rather, trial defense counsel pointed to the fact that her
statements were remarkably consistent.” The Government
responds that if the defense argued that the Government en-
gaged in improper coaching, the Government was entitled to
admit her prior statements so that the military judge could
compare them with her testimony and determine if it was ac-
tually influenced by preparation. In the Government’s view,
it does not matter that the alleged coaching was supposedly
done for the purpose of keeping the testimony consistent as
opposed to causing the testimony to change.
I agree with the Government. M.R.E. 801(d)(1)(B)(i) does
not require a charge that a witness “recently fabricated” her
testimony. The rule can also apply when the charge is that a
witness “acted from a recent improper influence.” In this case,
the defense asserted that Specialist AN’s “testimony was in-
fluenced by preparation [with trial counsel] to keep it con-
sistent” with her earlier statements, which is a charge that
the witness acted from a recent improper influence. And while
a prior consistent statement cannot rebut a charge that a wit-
ness has been lying from the very start, it can rebut a charge
3
United States v. Ayala, No. 20-0033AR
Judge MAGGS, concurring
of recent coaching. Recent coaching was the defense’s argu-
ment, and as the Government explains, “Prosecution Exhibits
4 and 14 rebutted this argument because they showed [Spe-
cialist] AN’s unrehearsed statements when she first reported
[A]ppellant’s assault, over a year before she allegedly prac-
ticed and rehearsed for trial.” (Footnote omitted.) A prior vid-
eotaped statement can rebut an allegation that a subsequent
statement was rehearsed in order to make them both con-
sistent. See United States v. Morgan, 31 M.J. 43, 46 n.6
(C.M.A. 1990) (noting that there are “few media more effec-
tive than videotape for allowing the members to answer [the]
question” of whether testimony was the result of improper re-
hearsal and coaching, “i.e., telling the same story over and
over again”). The prior consistent statements were therefore
“relevant to rebut” the defense’s charge and were not “mere
repetition.” McCaskey, 30 M.J. at 192.
Cross-examination is an important tool for exposing po-
tential biases. But the M.R.E. are not one-sided. If counsel for
a party insinuates during cross-examination that the other
side has recently coached the witness, the insinuation may
open the door for rebuttal by the introduction of a prior con-
sistent statement. Under the text of M.R.E. 801(d)(1)(B)(i), a
relevant prior consistent statement is excluded from the defi-
nition of hearsay not only when counsel alleges a recent fab-
rication but also when counsel alleges that the witness acted
from any other recent improper influence or motive.
4